On May 9, 1992, the Westray tragedy—Canada’s worst mining disaster since 1958—occurred when explosions in a Nova Scotia coal mine killed 26 workers. One of the lasting legacies of Westray is the adoption of Bill C-45, which amended the Criminal Code (Code) to make it possible for prosecutors to hold a company or individual guilty of criminal negligence for wanton or reckless disregard for workplace safety. But since C-45 took effect on March 31, 2004, there have been only a handful of cases brought under the new provisions.
We’ll review the events that lead to the passing of C-45 and how it changed the criminal law. And with the help of Alberta OHS lawyer David Myrol, we’ll look at some of the cases brought since it became law and discuss whether it’s been effective in improving worker safety.
After Westray, the mining company and two of its managers were charged with 26 counts of manslaughter and criminal negligence causing death. But after initial convictions were overturned, the prosecutors eventually opted not to pursue criminal charges because they didn’t believe there was enough evidence to secure convictions. Myrol says the law was out of touch and needed to be “modernized.” For example, to hold a corporation or other organization criminally liable as an entity, a “directing mind”—that is, a senior member of the organization with policy-making authority—had to have committed the offence, he explains. That is, the guilt of the corporation had to be proven through the guilt of the “directing mind.”
That’s where C-45 comes in. C-45 updated the criminal law to do three key things:
Create a new duty. C-45 added Sec. 217.1 to the Code, which says that every person “who undertakes, or has the authority, to direct how another person does work or performs a task” must “take reasonable steps” to protect that other person from bodily harm arising out of the work. This section didn’t create a new criminal offence. But by clarifying this legal duty, it enabled prosecutors to apply the already existing offence of criminal negligence, which is partly predicated on the existence of a legal duty, to serious workplace safety incidents. As a result, it’s now possible to hold a company or individual guilty of criminal negligence for failing to meet the duty to protect a person doing work if the failure to protect was the result of wanton or reckless disregard for life or safety and caused death or bodily harm to the worker or a person affected by the work.
Change criminal liability of organizations for acts of representatives. C-45 changed how corporations and other organizations can be held criminally liable. It’s no longer necessary for a “directing mind” to have committed the crime. Instead, the term “representative” was redefined to expand the group of people whose acts or omissions can be attributable to a corporation or other organization to include all employees, members, agents and contractors. In addition, Sec. 22.1 was added to state that, for a crime requiring proof of negligence, such as criminal negligence, a company or organization is a party to an offence if:
1) Acting within the scope of their authority:
a) one of its representatives is party to the offence; or
b) two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and
2) The senior officer responsible for the relevant aspect of the organization’s activities departs—or the senior officers, collectively, depart—markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative from being a party to the offence.
For crimes requiring fault other than negligence, such as intent, new Sec. 22.2 says that a corporation or other organization is liable when a senior officer, with the intent to at least partly benefit the company:
- Is a party to the offence;
- Directs the work of other representatives so that they commit the act or omission required by the offence; or
- Knows that a representative is or is about to commit the offence and fails to take all reasonable steps to prevent or stop the commission of the offence.
Set factors for sentencing a company. C-45 wasn’t just about liability. It also dealt with the consequences of crimes for an “organization,” such as a company. It added Sec. 718.21 to the Code, setting out 10 factors that a court must consider when sentencing an organization that was convicted of a crime, including criminal negligence:
- Any advantage realized by the organization as a result of the offence;
- The degree of planning involved in carrying out the offence and the duration and complexity of the offence;
- Whether the organization attempted to conceal or convert its assets in order to show that it’s not able to pay a fine or make restitution;
- The impact that the sentence would have on the organization’s economic viability and the continued employment of its workers;
- The cost to public authorities of the investigation and prosecution of the offence;
- Any regulatory penalty imposed on the organization or one of its representatives for the conduct that formed the basis of the offence, such as a fine imposed in a regulatory OHS prosecution;
- Whether the organization was—or any of its representatives who were involved in the commission of the offence were—convicted of a similar offence or sanctioned by a regulatory body for similar conduct;
- Any penalty imposed by the organization on a representative for his role in the commission of the offence;
- Any restitution that the organization is ordered to make or any amount that the organization has paid to a victim of the offence; and
- Any measures that the organization has taken to reduce the likelihood of it committing a subsequent offence.
Since March 2004, there have been only a handful of safety incidents for which criminal negligence charges were brought. And in some of those cases, the criminal charges were later dismissed. Why haven’t there been more cases? And should there be more cases?
Myrol believes that when C-45 was passed, its impact was over-hyped by politicians using lots of rhetoric. As a result, there were unrealistic expectations, especially on the part of unions, as to how this new law was going to change the prosecution of safety incidents. Some expected a flood of criminal cases for workplace tragedies—and clearly that hasn’t happened.
But Myrol notes that the Department of Justice made it clear when C-45 became law that it was still going to exercise the “principle of restraint” and use the criminal law only in the most egregious cases. After all, there was already a process in place for addressing safety incidents—regulatory prosecutions for violations of the OHS laws. And Myrol points out that it’s easier to secure convictions in OHS prosecutions. In addition, regulatory prosecutions are effective and have significant penalties, including the possibility of jail sentences.
Myrol says that two fairly recent cases illustrate the proper application of C-45 to workplace safety incidents:
Scrocca. Pasquale Scrocca, a landscape contractor in Québec, was performing landscaping work at a commercial building using a backhoe. When its brakes failed, he collided with a worker, who died. Scrocca was convicted of criminal negligence causing death in the first trial since C-45 took effect. Experts confirmed that the 30-year-old backhoe was very poorly maintained and that the brakes were completely non-functional. The court concluded that, in neglecting to perform maintenance on the backhoe, Scrocca markedly departed from the standard of care expected of a prudent and diligent person. It sentenced him to pay costs and comply with certain conditions, failing which he could be sent to jail for two years [R. v. Scrocca].
Weyerhaeuser. In 2004, a worker smothered to death after getting trapped by debris in the hog (a machine that converts wood waste to chips) at Weyerhaeuser’s New West Division sawmill. In March 2007, WorkSafeBC fined Weyerhaeuser $297,000 for this incident—the highest fine it had ever imposed against an employer at the time. In March 2010, the United Steelworkers union launched a rare private criminal negligence prosecution against the company. A BC court ruled that the union had presented enough information supporting this claim for it to go forward. But in Aug. 2011, the Crown essentially dismissed the prosecution, saying the evidence didn’t present “a substantial likelihood of conviction against the company.”
Myrol believes that Scrocca is the type of case for which C-45 was designed. Based on the facts, anyone would conclude that his conduct was so negligent that it was criminal. For example, the backhoe had absolutely no braking capacity in the front two wheels, no brake fluid in the reservoir and an all-over braking capacity of less than 30%. A mechanical inspection uncovered 14 additional major issues, including the fact that the horn, brake lights, parking brake and brake pressure gauge didn’t work. Scrocca admitted that a certified mechanic hadn’t inspected the backhoe for at least five years and that he’d failed to check the brake fluid in the previous year because the reservoir cap was broken. In short, Scrocca didn’t appear to have done anything to ensure the backhoe was safe to use.
In contrast, the conduct in Weyerhaeuser didn’t rise to the same level, says Myrol. In that case, management did take steps to protect workers from the hazards posed by the hog. For example, it implemented written procedures to make unclogging the hog safer that warned workers not to insert their arms or heads into the hog. It also provided a mirror device for workers to use to view blockages underneath the hog. True, those efforts fell short. As a result, the company was appropriately hit with a hefty administrative penalty for violating BC’s OHS law. But to criminally prosecute it based on these facts would be to misapply the law of criminal negligence, says Myrol. “Weyerhaeuser could prove it took repeated steps to protect its workers from harm. It may have missed the mark but the effort and intent were clearly there. The same can’t be said for Scrocca,” explains Myrol.
As for those cases in which criminal negligence charges were brought and then dismissed, pressure from unions may very well have led to the initial charges. Myrol, a former Crown prosecutor, explains that “public pressure has a way of unconsciously creeping into the case assessment even for the most disciplined of prosecutors.” But the process eventually yields an objective result, as the evidence is sifted through several prosecutors and new evidence is considered, he says. Of course, the public isn’t privy to this process. However, Myrol says prosecutors should be applauded for making tough decisions and encouraged to exercise their discretion when the evidence doesn’t support prosecution. “The easiest path for a prosecutor is to let the judge make the decision, but then,” as Myrol explains, “we all lose because our court system bogs down and valuable resources are needlessly spent on cases that don’t have a chance.”
So has C-45 been effective? Myrol says the answer depends on who you ask and how you measure success. Unions seem to measure C-45’s success by the number of cases brought, which he believes is a “poor barometer.” If the law’s goal was to better protect workers, that goal was achieved, according to Myrol. “C-45 has had a profound impact on how companies are run,” he explains, “It captured the attention of corporate Canada and they responded quite well.” For example, safety has a much higher profile at the executive management level and more resources are spent on keeping workers safe than ever before, says Myrol.
Bottom line: When workers die on the job, it’s tragic and emotions run high. But the bringing of criminal charges must be driven by the facts of each case and not by emotions.
David Myrol: McLennan Ross LLP, 600 W. Chambers, 12220 Stony Plain Rd., Edmonton, AB T5N 3Y4; (780) 482-9290; firstname.lastname@example.org.
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R. v. Scrocca, 2010 QCCQ 8218 (CanLII), Sept. 27, 2010