The Advocate
Informing Marine Engineers about legal matters
Authored by: Darren Williams, Williams & Company
Brought to you by www.dieselduck.net, comments to [email protected]
Workplace Safety and the Law
Recent amendments to the Criminal Code establish a specific legal
duty for employers to take steps towards a safe workplace, including
on the water. Failure to do so may result in charges of criminal
negligence.
Every year industrial accidents exact a heavy toll in Canadian
industry. In the marine industries, collisions, capsizing and
confined spaces are only a few of the workplace safety issues that
provincial and federal legislation seek to address. Recent changes
to the Criminal Code of Canada highlight the severity with which the
Federal Government views breaches of occupational health and safety
(“OHS”) legislation.
In March of 2004 the Criminal Code was amended to expand the scope
of liability for criminal negligence in the workplace. The
amendments made it easier for organizations, including companies and
partnerships, to be convicted of negligence causing injury or death
in the workplace. In order to avoid potential criminal liability and
fines of up to $100,000 arising from a failure to adhere to the new
provisions of the Criminal Code, mariners are well advised to become
familiar with the new law.
Background
In 1992, twenty-six miners died in an explosion in the Westray mine in Nova Scotia. Despite strong pressure from the victims’ families and their union, the province was unable to prosecute those in charge of the organization that owned and operated the mine for the negligent acts causing the explosion. In response, Bill C-45, An Act to Amend the Criminal Code of Canada (otherwise known as the “Westray Bill”) was proposed and passed by Parliament in 2003. The Westray Bill made significant changes to the definitions in the Criminal Code, and added section 217.1, which reads as follows:
Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.
The New Law in a Nutshell — Extending Liability
Historically, organizations such as corporations were relatively
safe from a conviction for negligence causing injury or death in the
workplace. This was because, in order to be convicted, the
prosecution had to prove that the directing mind (typically a senior
officer) of the organization committed both the physical act and had
the mental intent of wanton or reckless disregard for safety. This
has now changed. The new law provides that an organization can be
found guilty of criminal negligence where the physical act and the
mental intent are perpetrated by two separate people in the
organization.
For example, the chief executive officer of a towing company,
motivated by rising diesel costs, reduces the budget for maintenance
knowing (the mental intent) that this precludes compliance with the
manufacturer’s recommended maintenance schedule for onboard fire
suppression equipment. At sea, the skipper or engineer skips the
regularly scheduled maintenance of the system (the physical act). A
fire occurs, the fire suppression system fails due to lack of
maintenance, and three crewmen die. Previously, the company could
not be convicted of criminal negligence — this is no longer the
case.
The purpose of section 217.1, above, is to establish criminal
liability for a wide range of organizations and individuals who fail
to take reasonable steps to prevent workplace accidents. For this
reason, the amended Criminal Code refers to an “organization” and
then defines it to mean “a public body, a body corporate, a society,
a company” and “a firm, a partnership, a trade union or an
association of persons created for a common purpose” — an extremely
broad definition of those potentially liable.
Individual Liability of Directors and Officers
The new law deals only with the criminal liability of
organizations. It does not provide for amendments to the current law
dealing with the personal liability of directors and senior
officers. Under current Canadian law, directors and/or senior
officers can be held criminally responsible only if they direct a
corporation to commit crimes to benefit the corporation, or
otherwise participate in criminal activities.
Despite this, it should be noted that although the personal
liability of directors and senior officers is not addressed by
section 217.1, a specific legal duty is established, as will be
discussed below, requiring those charged with responsibility for
directing the work of others to take reasonable steps to prevent
bodily harm arising from such work.
Preventing Harm in the Workplace
Simply stated, section 217.1 requires that employers take steps
to provide a safe workplace for their workers. Employers who fail to
do so may face charges of criminal negligence under the amended
Criminal Code. Criminal negligence occurs when an act or omission of
an accused party shows wanton or reckless disregard for the safety
of others where the accused is under a legal duty to act. This
requirement under the new law is similar to the obligations already
imposed on employers under OHS legislation across Canada.
Previously, the Criminal Code imposed liability on corporations only
for the acts and omissions of senior employees such as directors and
officers. However, the criminal liability of corporations and other
organizations no longer depends on a senior member of the
organization having committed the offence. Under the amended Code,
the class of persons whose acts or omissions will be attributable to
a corporation or other organization has been expanded to include all
“representatives.” Representative is defined to include almost every
person engaged by an organization, including directors, partners,
employees, members, agents and contractors — again, a very broad
definition.
To establish a breach of the “duty to take reasonable steps” imposed
by the new law, the Crown has to prove the breach beyond a
reasonable doubt. This is similar to the standard of proof required
by strict liability offences under provincial OHS legislation. After
a violation has been demonstrated beyond a reasonable doubt, the
accused must establish due diligence in order to avoid a conviction
(in other words, the employer must prove that it took all the
precautions reasonable in the circumstances to prevent the accident
or injury in question).
The Due Diligence Defence
What constitutes due diligence will depend on the circumstances of each case. Generally, an employer can establish due diligence by demonstrating that it developed a proper system to prevent the commission of the offence. In assessing a due diligence defence in the workplace safety context, courts have considered facts such as whether the employer:
The same preventative steps taken by an employer in the workplace safety context will likely prove useful in developing a defence to a charge under the new Criminal Code provision. As such, employers must ensure that appropriate preventative steps are established, and that implementation of such steps occurs at all levels of their organization.
Consequences of Violating the Amended Criminal Code
In addition to increasing the maximum monetary penalty for organizations from $25,000 to $100,000 for summary conviction offences, the Westray Bill also amended the Criminal Code by establishing factors that courts should take into consideration when sentencing organizations convicted of criminal offences. These factors include:
The latter factor takes into consideration the possibility that concurrent prosecutions may occur under both the amended Code and provincial OHS legislation.
Concurrent Prosecution under the Criminal Code and Provincial Legislation
In some instances, as noted above, concurrent prosecutions could
be brought under both the amended Criminal Code and applicable
provincial OHS legislation for the same accident or event. However,
the specific legislation under which a prosecution will proceed will
be dictated by the facts of each case. For example, in certain cases
where the Crown believes that it would be able to establish wanton
or reckless disregard for the lives of employees or others, it may
proceed under the Criminal Code. Absent such evidence, an alleged
violation would likely be prosecuted under provincial OHS
legislation.
Should prosecutions be brought concurrently under both the Criminal
Code and OHS legislation, two potential defences that may be raised
include the principle of double jeopardy, and the rule against
multiple convictions for the same offence. The double jeopardy
defence, enshrined in section 11(h) of the Charter of Rights and
Freedoms,
essentially provides that once a party is charged with an offence,
whether found guilty or acquitted, that party may not be tried or
punished for the same offence again.
The rule against multiple convictions for the same offence is
similar in that it provides that an accused cannot be convicted of
the same offence more than once. This defence is distinguishable
from the principle of double jeopardy in that it assumes concurrent
charges at the same time for the same offence, while the double
jeopardy principle assumes that a final decision has been reached on
the trial of an offence. Though the applicability of the rule in
circumstances of concurrent prosecutions under different legislation
has not been tested, the defence may be raised in response to
charges under both the Criminal Code and OHS legislation.
Recommendations
In order to avoid prosecution under the new Criminal Code
provisions, employers are advised to perform compliance reviews to
determine the status of current workplace policies, practices and
procedures. If current procedures are not compliant with OHS
legislation, employers should keep in mind the following practical
points that will assist them in establishing a due diligence
defence:
Have written policies, practices and procedures in place;
Establish a program to monitor the workplace on a regular basis to
ensure that employees are following the policies, practices and
procedures;
Provide appropriate training and education to employees so that they
understand and carry out their work according to established
polices, practices, and procedures.
Given the new law attributes criminal liability to organizations
based on the acts or omissions of nearly every individual associated
with the organization, it is imperative that employers ensure all
“representatives” of the organization understand and apply stated
workplace health and safety policies and procedures.
The severity of a Criminal Code violation cannot be overstated. As
such, it is strongly suggested that the recommendations outlined
above be implemented in a structured way. Records should be kept at
all times to document an organization’s development and execution of
a proper workplace health and safety program.
Darren Williams is a Barrister and Solicitor (Lawyer) specializing in Admiralty Law, which has jurisdiction over maritime matters. Darren has worked extensively on the water as well as in the courtroom. He is a Barrister & Solicitor based out of Victoria, British Columbia, Canada, practicing at the Law Firm of "Williams & Company".
On this webpage, he brings us timely and relevant articles on the legal aspects of being a Marine Engineer in today's world. Although the articles have a predominately Canadian flavour, we are sure you will find his legal point of view enlightening where ever you ship sails. Darren has also published other legal articles on general admiralty law, view them all at the Williams & Company website. You can reach Darren for question or comment by phone at 250-478-9928 or by email.