C-45 Resurfaces: Just When You Thought It Was Safe to Go Back in the Water. . .

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An 80-tonne mobile crane fell into an Ontario excavation while being repositioned, killing a city worker. As a result, the police charged the crane rental company, the crane owner and the crane operator with criminal negligence.

BC authorities filed criminal negligence charges against the navigating officer of the Queen of the North ferry in connection with a 2006 incident that resulted in the death of two passengers.

The Problem

When Bill C-45 took effect in 2004, corporate executives worried that they’d face criminal negligence charges every time somebody was seriously injured or killed in a safety incident. But since C-45’s changes to the Criminal Code took effect, it has resulted in only two criminal negligence cases. However, earlier this year—and only weeks apart—criminal negligence charges were laid in connection with workplace safety fatalities in the two cases noted above. And more criminal negligence charges could be on the way. These cases may signal more willingness on the part of the government to pursue criminal prosecutions for safety incidents.

The Explanation

C-45 101: C-45 amended the Criminal Code to add Sec. 217.1, 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. “Criminal negligence”—that is, the act of doing something forbidden by the law or omitting to do something one has a legal duty to do when the act or omission shows “wanton or reckless disregard for the lives or safety” of others—was already a crime under Sec. 219 of the Code. When these two sections are read together, it’s now possible to hold a company or an individual guilty of criminal negligence for failing to fulfill the duty to protect a person doing work if this failure was the result of wanton or reckless disregard for life or safety and killed or seriously injured the worker or another person.

The only criminal negligence conviction for a safety incident since C-45 took effect was against a corporation in Quebec called Transpavé. But in that case, only the company was prosecuted and convicted. To date, no senior official, such as a CEO or member of the board of directors, has ever been charged with—much less convicted of—criminal negligence for a safety incident.

The recent criminal negligence cases in BC and Ontario continue this pattern. In both cases, the defendants charged weren’t in corporate leadership positions. In BC, the only defendant charged was an individual, the ferry’s navigation officer; in Ontario, the defendants include the crane operator, crane owner and crane rental company.

This pattern is puzzling—and some would say troublesome—because the primary reason for changing the criminal negligence law was to hold corporate officials personally accountable for serious safety violations committed by their companies. As you may recall, the adoption of C-45 was driven by public outrage that officials of the Westray mining company were able to avoid personal liability for the company’s gross neglect of miners’ safety because of a technicality in the criminal negligence law. The changes to the Criminal Code made by C-45 were supposed to ensure that such a miscarriage of justice never happened again.

The Lesson

Almost since the day C-45 took effect, labour unions and other political groups have been urging prosecutors to bring criminal negligence charges against corporate officials for egregious safety violations. Although the recent BC and Ontario cases aren’t the prosecutions of corporate officials that the unions so desperately want, they do signify that prosecutors are becoming more comfortable with the idea of going after safety violators in criminal court instead of letting OHS regulators handle them. And if criminal negligence charges are back in play, it’s only a matter of time before prosecutors remember why the law was adopted in the first place and use it to go after corporate executives.

But one thing hasn’t changed: If you and your fellow officers and directors ensure that the company takes reasonable steps to comply with the OHS laws, you and the company can avoid not only safety offences but also criminal negligence charges. And even if the company makes a mistake and does violate an OHS requirement, unless it acted wantonly or recklessly, it’s unlikely that the company—or its officers and directors—will face criminal prosecution for the incident.