Criminal Negligence – What Constitutes ‘Criminal Negligence’ by a Worker for a Workplace Safety Incident?

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When you hear the term “criminal negligence,” you might immediately think C-45. But the possibility of individuals and companies being charged with criminal negligence for safety incidents existed long before C-45. C-45 simply clarified the rules and made it easier to charge companies and executives with criminal negligence when their blatant indifference to safety results in tragedies such as Westray. But it’s not just the corporate big wigs who run the risk of liability. Any individual within a company—including a worker—is fair game for criminal negligence charges. To convict an individual of criminal negligence, the prosecution must prove that the defendant showed a wanton or reckless disregard for the lives or safety of others. So when can a safety incident result in the criminal negligence conviction of a worker? Here are two cases in which workers were charged with criminal negligence as a result of a workplace safety incident.

INCIDENT = CRIMINAL NEGLIGENCE

FACTS

A nursing home worker responsible for bathing residents lowered a disabled resident into scalding hot water, seriously burning his lower limbs and buttocks. A co-worker discovered the severe burns when she removed the resident’s socks and some of his skin came off with them. The resident was hospitalized in the intensive care unit for a month and remained in the hospital until he died. As a result, the worker was charged with criminal negligence.

DECISION

The BC Supreme Court convicted the worker of criminal negligence.

EXPLANATION

The home’s rules specified the ideal temperature for bath water and required workers to measure it with a thermometer before bathing residents. In fact, a thermometer was kept by the tub for that purpose. On two prior occasions, the worker had been warned about using water that was too hot to bath residents. Thus, he was clearly aware of the hazards posed by hot water to the disabled residents of the home. The court noted that he was a trained home care worker. The infliction of severe injuries on a helpless individual under his care was “a marked departure from the standard of care to be expected” of a person in the worker’s position, particularly when so little needed to be done to avoid injury. Thus, the court had “no difficulty” finding the worker guilty of criminal negligence.

R. v. Storie, [2009] BCSC 177 (CanLII), Feb 13, 2009

INCIDENT ≠ CRIMINAL NEGLIGENCE

FACTS

A pilot for a commercial air service picked up a group of fishermen from a lake and was flying them back to Winnipeg. About 40 miles from the city, the fuel gauges suddenly started to drop. One engine quit about 15 miles out. The pilot tried to land at the Winnipeg airport but weather conditions caused him to miss the approach. When the second engine quit, the pilot was forced to land on a busy downtown street. The plane was destroyed. Miraculously, no one on the street was hurt. But the fishermen were injured and one later died. The pilot was convicted of multiple counts of criminal negligence and dangerous operation of an aircraft. He appealed.

DECISION

The Manitoba Court of Appeals overturned the pilot’s conviction for criminal negligence but upheld the dangerous operation of an aircraft conviction.

EXPLANATION

The basis for the criminal negligence charges was the pilot’s failure to ensure that he had adequate fuel for the flight as required by aviation regulations. One of the factors in deciding how much fuel is needed is whether the flight will be based on instrument or visual rules. As a matter of safety, flights based on instruments require more fuel than flights based on vision. Although the pilot’s filed flight plan called for an instrumental flight, he only had enough fuel for a flight by visual rules. Thus, the pilot failed to fulfill his duty under the aviation regulations. But no witness criticized the pilot’s procedures before or during the flight other than his method of fuel calculation. And he did address safety issues before and during the flight. Thus, his conduct didn’t show a complete disregard for its consequences. Therefore, however flawed the pilot’s conduct was in addressing the sufficiency of the fuel for the flight, it didn’t meet “the very high threshold” of wanton or reckless disregard for the lives or safety of others, concluded the court.

R. v. Tayfel (M.), [2009] MBCA 124 (CanLII), Dec. 16, 2009