Canadian Occupational Safety

12 www.cos-mag.com Canadian Occupational Safety LEGAL LANDSCAPE CHERYL A. EDWARDS O ver several decades, both before and since the enactment of the Westray Bill, or Bill C-45 amendments to the Criminal Code, certain academics, organizations and safety advocates have called for criminal prosecution of corporations and individuals whenever tragic workplace incidents occur. The Criminal Code amendments that passed in 2004 did expand duties for persons and organizations to protect workers. They added means to more easily prosecute organizations and corporations under the Criminal Code for criminal negligence and added new sentencing provisions. In short, amendments sufficient to criminalize occupational health and safety in Canada were made. Has this made a meaningful differ- ence? Sadly, I think not. In the ensuing years, all of us (I include in this group health and safety advocates, consultants, trade unions strenuously advocating for worker safety, OHS prosecutors and those of us who advise and defend corporations and individuals) continue to see the same parade of largely similar tragic cases in which workers' lives are cut short or irretrievably altered in horrific circum- stances. The same offences re-occur. Companies and supervisors are fined greater amounts under OHS legislation and an unrelenting push for Criminal Code prosecution of offenders continues. My question in this article, controver- sial or not, is whether the pressure for more prosecutions — particularly Crimi- nal Code prosecution — and higher fines has caused us to lose sight of the purpose of OHS legislation and safety-related endeavours. While fines and prosecution may satisfy the visceral desire for retri- bution — and meet court-established goals of denunciation and deterrence — if the goal is protecting and promoting the health and safety of workers and the public, do either OHS or criminal pros- ecutions meaningfully achieve this? OHS has been enforced in Canada since I entered the OHS field in the 1980s. Over- lapping duties under the occupational health and safety act, the internal respon- sibility system and government OHS enforcement by compliance orders and prosecution have continued for decades. Fines have climbed from corporate maxi- mums of a few thousand dollars to recent per-offence maximums exceeding $1 mil- lion. Administrative monetary penalties (AMPs), imposed without prosecution, have also evolved; B.C. has the highest available AMP in the country at $646,000. Jail terms are available and are imposed. Penalties are also now published by many OHS enforcement bodies and picked up by the media. So, fines are high, maximum penalties are getting higher and they are well advertised. But is this encouraging Jail, steep fines not advancing OHS Few successful prosecutions 15 years after Westray Bill safer corporate, management and indi- vidual worker behaviour? Some admitted rationale exists for availability of prosecutions and penal- ties, whether OHS or Criminal Code, in appropriate circumstances. Laws and standards guide behaviour, and enforcement is part of the fabric of our legal system. Indeed, the mechanism for OHS prosecutions rationally encourages ongoing, specific corporate and indi- vidual behaviour directed to incident prevention. Here's how. In an OHS prosecution, the alleged offence must be proven beyond a reason- able doubt. OHS contraventions are often readily proven at this stage of the case. Standing in the way of conviction is the ability of the alleged offender to establish to the court that they exercised "all reason- able care" or "due diligence." The fact that OHS offence prosecution mechanisms permit the ability to show reasonable care to prevent the offence encourages taking measures to ensure compliance and worker safety — if not, an OHS convic- tion will occur. AMPs similarly generally encourage due diligence and measures to protect worker safety. AMPs are imposed upon a finding of violation, but an appeal to overturn or reduce the AMP can gen- erally be made and results will depend upon the ability of the party appealing to show specific due diligence or reason- able care to prevent the contravention and protect workers. The Criminal Code amendments of 2004, on the other hand, exclusively focus on whether it can be established, beyond a reasonable doubt, that a crime of criminal negligence has occurred. Criminal negligence is not about vio- lation of an OHS standard or a failure to exercise reasonable care. It's about the circumstances — whether the tragic workplace incident in question occurred due to recklessness or complete lack of regard for safety. The detailed provisions of the Criminal Code create a high bar for successful prosecution. Simply put, it is still extraordinarily difficult to convict an organization of criminal negligence. This is often not appreciated by those pushing for corporate criminal charges and penalties. For organizations or cor- porations, complex requirements need the Crown to prove beyond a reasonable doubt that the business failed to meet the standard of care expected. For individual supervisors, managers and even workers, it must be shown that breach of a duty occurred that is such a marked and substantial departure from the conduct of reasonably prudent per- sons that the crime of criminal negligence occurred. Prosecutions for criminal neg- ligence face the highest level of judicial scrutiny as to whether an organization or individual committed a crime. Due to the seriousness of Criminal Code allegations and the intrinsic dif- ficulties in proving the standard of negligence — or wanton and reckless disregard beyond a reasonable doubt — organizations, corporations and indi- viduals facing criminal charges often proceed to trial. Criminal trials might generally explore OHS legislation and standards prudent in the circumstances as a backdrop. But the issue is not whether an organization has exercised reasonable care in the circumstances, how to improve workplace safety or how the workplace can improve worker safety in the future. They are all about whether a criminal prosecutor can prove an offence to the high standard required under the Criminal Code of Canada. There has still, despite all the interest and effort in pressing for Criminal Code prosecutions against corporations, not been a single Canadian case where the Crown has succeeded in proving crimi- nal offences at trial. Three corporations have pleaded guilty. While some might view the lack of convictions as reinforc- ing the need for more prosecution, it's my view that these criminal cases demon- strate the focus on procedural proof and not, sadly, on means to improve safety. As radical as this may sound, it may be time to ask safety professionals, worker representatives and legislators whether more effective mechanisms could exist, rather than penalizing organizations and individuals, and assuming others will be deterred. Some initiatives may include: • New business OHS requirements, such as legislating requirements that new businesses obtain minimum, required standard OHS expert-assistance prior to start-up to establish policies, pro- cedures and training specific to the business, based upon a meaningful risk assessment. Could the require- ment to show the government an OHS business plan assist as a proactive mea- sure to raise the safety bar? Businesses could theoretically also be required to self-audit against standards of due dili- gence before and after start-up. • OHS legislation and guides on rea- sonable care and due diligence could allow businesses to understand and comply with complexities of hazard assessments, proper training, compe- tent supervision, need for monitoring, communication and ongoing remind- ers and safety enforcement. Little government guidance exists on specific court-required measures of reasonable care and due diligence. Prescribed steps or guidelines could make these best practices clearer. Self-auditing could be part of potential OHS compliance All of us continue to see the same parade of largely similar tragic cases in which workers' lives are cut short or irretrievably altered in horrific circumstances.

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