What does C-45 mean to you? If managing a health and safety program is part of your job, you probably have two big concerns about the law:
- Protecting the individuals in your company, including yourself, against criminal liability; and
- Protecting your company against criminal liability.
Last month, in Part 1 of this series, we looked at the first concern. We explained what has to happen for a prosecutor to prove that an individual committed a criminal offense under C-45. Now we turn to the issue of how an organization (for simplicity’s sake, we’ll refer to all organizations collectively as “companies”) would be convicted of a C-45 crime.
Convicting an Individual: A Quick Review
As we discussed last time, Section 217.1 of the Criminal Code requires persons who “undertake, or have the authority, to direct how another person does work or performs a task to take reasonable steps to protect” the worker or other person from harm arising out of the work. Section 219(1)(b) makes it criminal negligence for a person not to do something the law requires (or do something the law bans). Reading these two things together, a person who doesn’t take reasonable steps to protect could be guilty of criminal negligence.
Two kinds of “persons” can be guilty of criminal negligence under C-45: An individual and a company. Last time, we explained the five things a prosecutor must prove beyond a reasonable doubt to convict an individual:
1. The offense happened after March 31, 2004 (when the law took effect);
2. The individual directed or had authority to direct work;
3. The individual didn’t take “reasonable steps” to protect;
4. The individual’s failure to take reasonable steps to protect was the result of wanton or reckless disregard for life and safety; and
5. The offense resulted in bodily harm to the person doing the work or somebody else.
Convicting a Company
Proving a criminal case against a company under C-45 is harder than convicting an individual. To convict a company, the prosecutor must show that:
A Crime Occurred. First, the prosecutor must show that a C-45 offense took place.
The Company Is a Party to the Offense. The prosecutor must show not only that criminal negligence took place but that the company is responsible for the crime. This is called attributing the crime to the company.
Prosecutors also had to do this before C-45 came into effect. The prosecutor had to prove that the individual who was negligent was the company’s “directing mind,” that is, the person responsible for developing and implementing company policy. This was hard to prove and it was one reason that Westray was never convicted.
C-45 does away with the “directing mind” requirement. Now prosecutors need to show that a company was a “party to the offense.” Although not easy, this requirement gives prosecutors a better chance of holding companies responsible for criminal negligence.
The Five Elements
Once the prosecutor has shown that criminal negligence has occurred, it must prove five things beyond a reasonable doubt to show that a company was a party to the offense:
1. The Company Is an ‘Organization’
The old criminal negligence law covered “corporations.” C-45 applies to “organizations.” Section 1(2) of C-45 defines an organization broadly to include partnerships and other commercial companies not organized as corporations as well as public bodies, corporate bodies, societies, firms, trade unions, municipalities, non-profits, charities and religious organizations. It’s hard to come up with a business that this definition wouldn’t cover.
2. The Individual(s) Who Committed the Offense Was a Company `Representative’
Next, the prosecution must prove that the individual(s) who committed criminal negligence was the company’s agent, or “representative.” A “representative” includes workers, supervisors, managers, officers and directors. It also includes non-employees like partners, agents and contractors.
Example: To save money, a contractor uses untrained and unskilled illegal immigrants to perform dangerous jobs at an excavation site. A trench collapses and two workers die. Using skilled workers would have prevented the accident. The supervisor who arranged to bring in the unskilled workers is found guilty of criminal negligence under C-45. Since the supervisor is the contractor’s representative, the prosecutor would have a chance of showing that the contractor was a party to the offense (assuming it can prove the remaining elements of the case).
A representative can include one individual acting alone or the combined acts of two or more individuals.
Example: A factory worker turns off three separate safety systems and somebody is killed by an accident the safety systems were designed to prevent. Both the worker and the company could be guilty of criminal negligence.
Example: Three different workers each turn off a safety system assuming the other two systems were still on. None of the workers would be guilty of criminal negligence (since honest mistakes aren’t reckless indifference). But the company could be guilty of criminal negligence for letting the situation happen, for example, by not implementing a system to prevent all three safety systems from being turned off at once.
3. The Representative Acted Within His Authority
The prosecutor must show that the representative who was negligent was acting within the scope of her authority, that is, doing the job the company expected and authorized her to do.
Example: A supervisor deliberately removes a machine guard because he knows the company’s safety coordinator will be touring the plant and wants to get the foreman into trouble. A worker gets hurt because the machine guard isn’t in place. The supervisor might be guilty of criminal negligence under C-45. But the company could argue that it’s not responsible because the deliberate removal of the machine guard wasn’t within the scope of the supervisor’s authority.
4. A Senior Officer Didn’t Do Enough to Prevent the Violation
The prosecutor must also prove that a company’s “senior officer” was involved. Section 1 of C-45 defines senior officer as a “representative who plays an important role” in setting policy or is responsible for managing a key part of the company’s activities. Directors, CEOs and CFOs of corporations are automatically “senior officers.” Safety coordinators might also be considered “senior officers” if they’re responsible for managing a company’s safety program.
Example: Let’s return to the case of the supervisor who used illegal immigrants at anexcavation site. Assume that the contractor’s safety coordinator knew what the supervisor was up to but decided to look the other way because using skilled workers would put the work over budget. The prosecutor could make a strong case that the safety coordinator is a senior officer especially if he was responsible for safety at the site.
5. The Senior Officer’s Failure to Prevent The Offense Was a ‘Marked Departure’ from Standard of Care
Finally, the prosecutor must show that the senior officer didn’t take reasonable steps to prevent the representative from committing criminal negligence. The senior officer needn’t actually know about the offense. The prosecutor need only show that not knowing was a “marked departure” from the kind of care to be expected of senior officers in that position. In other words, liability is based not on what senior officers actually knew but what they should have known.