Question: What should you do to protect your organization, directors, officers, managers, supervisors, workers and, not least of all, yourself, against criminal liability under C-45?
Answer: The same thing you do to ensure compliance with OHS laws—only more so.
Explanation: Due diligence is still the key to everything. Due diligence is often the primary defense against a charge under the OHS laws. Specifically, if the Crown proves (“on a balance of probabilities”) that an OHS law was violated, organizations or individuals can avoid liability by showing that they took “all reasonable steps” to comply with the law and avoid the problem.
C-45 is a criminal law, not an OHS law. So, technically, you can’t use due diligence as a defense against a criminal charge under C-45. But most attorneys agree that organizations and individuals will still be able to use “due diligence” to defeat a C-45 charge and even prevent one from being brought in the first place.
Why? To win a criminal case the prosecution must prove that a person committed a forbidden act (or omission) and had the mental state required by the law. In the case of C-45, the act is failing to take “reasonable steps” to protect. To comply with C-45, organizations and individuals are expected, at a minimum, to comply with their OHS laws. So an OHS violation may constitute a guilty act under C-45.
But to make a C-45 charge or any other criminal charge stick, the Crown must prove not just that the defendant committed the act forbidden by the law (or omitted to do the act required by the law) but that he or she or it did so with a certain kind of guilty mind. Under C-45, the so called mens rea or mental state is wanton or reckless disregard of safety. Proving that you showed due diligence to comply with safety requirements and prevent injuries cuts the legs out of the Crown’s case. Evidence of `due diligence’ makes it hard to prove wanton or reckless disregard. An organization or individual that makes efforts to comply with OHS laws doesn’t generally have the total disregard or devil-may-care attitude necessary for a conviction.
For a detailed explanation of the C-45 law, see the analysis below.
The history of C-45 convictions
|2005||Ontario supervisor, Domenico Fantini||Worker killed on residential construction site when unsupported trench he’s working in collapses. Supervisor away when accident occurs.||Crown drops C-45 charge in exchange for supervisor’s pleading guilty to 8 OHS violations.|
|2008||Québec company, Transpavé||Worker crushed to death trying to clear jam from machine that stacks paving stones whose optical safety device was shut off.||Transpavé pleads guilty to criminal negligence under C-45 and is fined $100,000|
|2010||Ontario crane owner and operator||Crane furnished by Millennium Crane Rentals collapses and kills worker in a trench.||Case pending|
|2010||BC ferry navigation officer||Navigating officer of Queen of the North ferry charged with not paying attention and causing accident that results in sinking and death of 2 passengers.||Case pending|
|2010||Ontario scaffolding company president, official and supervisor||3 workers killed when Toronto scaffolding collapses on Christmas Eve||Case pending|