C-45: When Does an OHS Violation Become a Crime? [Part 1]

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Although it’s been around for more than a year, C-45 is still a big mystery to a lot of Canadians. But when it’s all said and done, there are two basic things most people want to know about the law:

  1. How can I or another person in my company end up in jail for violating C-45?
  2. How can my company get convicted of a crime under C-45?

This article will answer the first question. There’s also a short quiz at the end that you can use to test how well you understand the law. Next month, in Part 2, we’ll answer the second question and follow it up with a quiz.

What C-45 Says

C-45 isn’t an OHS law; it’s a criminal law. More precisely, it’s a series of changes to the Canadian Criminal Code. And while you don’t have to be a lawyer, you do need to know a little about the law to understand how C-45 works. Specifically, there are two sections of the Criminal Code at the heart of C-45:

The Duty to Protect (Section 217.1). This is a new section of the criminal law created by C-45. It 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 the worker or other person against bodily harm arising out of the work.

Criminal Negligence (Section 219(1)(b)), This was part of the Criminal Code even before C-45 was enacted. It says that persons are guilty of criminal negligence if they “omit to do anything” they have a legal duty to do and the omission is shows “wanton or reckless disregard for the lives or safety” of others.

Now let’s put the two sections together and we’ll see how C-45 works. Since protecting a worker is a legal duty under 217.1, persons are guilty of criminal negligence under 219(1)(b) if they fail to protect a worker (or other person), the worker (or other person) suffers bodily harm and the failure to protect is the result of wanton or reckless disregard for life and safety.

How Individuals Would Be Guilty of a Crime Under C-45

When a person is charged with criminal negligence or any other crime, the prosecution must prove its case beyond a reasonable doubt. In a C-45 case against an individual, there are five items—or “elements”—that the prosecution must prove. It’s important to understand what each of these elements is since if you can cast doubt on any one of them, you can’t be convicted of a crime under C-45.

The 5 Elements

1. The Offense Happened After March 31, 2004

Although it was passed on November 8, 2003, C-45 didn’t take effect, that is, become enforceable, until March 31, 2004. C-45 isn’t retroactive; it applies only to acts committed on or after March 31, 2004.

Example: A construction company fails to provide adequate structural support at an excavation site as required by provincial OHS regulation. A supervisor knows of the problem but doesn’t tell management because he doesn’t want to delay the work. As a result, the excavation caves in and a worker is killed. The accident occurs on March 30, 2004. A court is likely to find that the supervisor didn’t take reasonable steps to protect the worker. But the violation occurred before March 31, 2004. As a result, the Crown can’t prosecute him under C-45 (but it could prosecute for criminal negligence under the old criminal law).

2. The Individual Directed or Had Authority to Direct Work

C-45 doesn’t apply to all individuals: just the ones who direct or have authority to direct how work is done. According to Ministry of Justice attorney, Greg Yost, one of the authors of C-45, authority to direct work is likely to include individuals who:

  1. Have control over who can do a job;
  2. Have control over what methods or tools are used;
  3. Train people who perform the job; and/or
  4. Have authority to stop work if they consider it unsafe.

Example: A Joint Health and Safety Committee is allowed to make recommendations about safety but can’t force a company to follow its recommendations. Members of the JHSC probably don’t have direction or authority over work and thus couldn’t be held liable under C-45.

Note also that a person who takes it upon himself to direct work can also be liable under C-45, even if he doesn’t have authority to exercise such direction.

3. The Person Didn’t Take `Reasonable Steps’ to Protect

Remember that to be guilty of criminal negligence under Section 219(1)(b), a person must breach a legal duty—that is, do something she’s not supposed to do or omit to do something she is supposed to do. For a person directing or authorized to direct how work is done, that may include the duty to take “reasonable steps” to protect under Section 217.1.

So to win a conviction under C-45, the prosecution would have to show that the individual failed to take “reasonable steps.” There’s no definition of “reasonable steps” in 217.1. But attorneys say that at a minimum, individuals would be expected to comply with applicable OHS laws and perhaps industry standards. So violating an OHS law would probably be considered failure to take reasonable steps under C-45, and thus a breach of a legal duty. .

Example. A worker in an Ontario manufacturing plant falls through the opening of a roof and suffers fatal injuries. Guardrails would have prevented the accident. They’re also required under provincial OHS regulations. The failure to put in guardrails thus violates not only the OHS law but also the C-45 duty to take reasonable steps.

Example. Assume the same accident occurs but that guardrails were in place. Assume also that the worker was horsing around and swinging from the guardrail when he lost his grip and fell and that the worker had been warned about swinging from the guardrails. It would be much harder for the prosecutor to show that the employer didn’t take reasonable steps to protect the worker.

4. The Failure to Protect Was Wanton or Reckless

The mere act of doing something the law forbids or not doing something the law requires isn’t necessarily enough to make a person guilty of a crime. The prosecutor must also show that the person had a certain mental state when he committed the act or omission.  For example, for some crimes the prosecutor must show that the individual acted intentionally.

The mental state required to convict a person of criminal negligence is wanton or reckless disregard for life and safety. This means more than simple carelessness or honest mistakes. The person must have acted with a complete disregard for safety–a “devil-may-care attitude,” according to one court.

Example: A company allows flammable methane gases to build up to dangerous levels in areas of an underground mine. The mine manager is fully aware of the danger of an explosion but keeps sending workers into the mines without taking any precautions. Sure enough, an explosion occurs and 26 miners lose their lives. The manager’s actions show complete disregard for worker safety and would satisfy the “wanton or reckless” standard for criminal negligence.

5. The Offense Resulted in Bodily Harm

An individual can only be guilty of a crime under C-45 if the wanton or reckless failure to take reasonable steps results in bodily harm to the worker or some other person, like a visitor to the site. Section 2(1) of the Criminal Code says that bodily harm means death or serious injury, not just an injury which is “transient or trifling in nature.”

Insider Source

Greg Yost, Esq.: Counsel, Criminal Law Policy Section, Department of Justice Canada, 284 Wellington St., Rm. 5056, Ottawa, ON K1A 0H8.