A recent case has tested Bill C-45, the amendment to the Criminal Code that attached criminal responsibility to an organization or corporation for negligence related to health and safety in the workplace, and broadened the range of individuals who are subject to charges under the Code. Since the inception of Bill C-45 on March 31, 2004, charges have been laid in just four cases, and only one resulted in a conviction. As a result, many are wondering if the enforcement of such provisions is even possible.
Moreover, Bill C-45 added Section 217.1 to the Criminal Code to impose a duty on organizations and their representatives (whether a director, partner, manager, supervisor, employee, member, agent or contractor of the organization) who have authority to direct how others do work or perform a task to take reasonable steps to prevent bodily harm to persons performing the work or task, and to the public, arising from the work or task.
Well, another attempt at enforcing organizations’ criminal liability as a result of the acts or omissions of managers/supervisors is underway.
Police in Sault Ste. Marie have charged two individuals and one organization with criminal negligence causing death in the death of public works employee James Vecchio at the city landfill: crane operator Anthony Vanderloo, crane owner David Brian Selvers, and 1531147 Ontario Ltd., operating as Millennium Crane Rental of Sault Ste. Marie. The criminal charges came after the police service issued a statement that its 10-month investigation into the fatality was complete. Preliminary results suggest that the operator of the crane, which was loading concrete into the excavation hole where Vecchio was working, backed up too far while repositioning, and subsequently fell into the hole, crushing Vecchio.
These criminal charges came shortly after Ontario's Ministry of Labour confirmed it also laid six civil charges under the Occupational Health and Safety Act. OHS charges against Millennium Crane revolve around the proper maintenance, operation and use of a crane, and providing instructions to employees about operating equipment in a manner that might endanger the operator or another individual, including failing to ensure the crane operator was properly licensed.
The first court appearance in the Ontario Court of Justice provincial offences division is scheduled for March 22, 2010.
Criminal negligence causing death is an indictable offence for which the maximum sentence is life imprisonment, or very steep fines with no limits. If the case goes to court, in offences based on negligence, the court must determine whether an individual acted so carelessly or with such reckless disregard for the safety of others as to deserve criminal punishment. The Crown will have to prove that employees of the organization committed the careless and reckless act, and that a senior officer, director or manager did not take the necessary reasonable steps to prevent them from doing so.
We will have to wait and see how this case evolves.
The provisions of Bill C-45 may not yet have received the judicial interpretation that it warrants, but the tide maybe changing. In any case, full compliance with the Occupational Health and Safety Act duties and requirements should provide organizations and corporations with a strong defence against a charge of criminal negligence.
Actually for criminal negligence, the Crown must prove beyond a reasonable doubt that the accused's actions were a marked departure from the standard of care required. Carelessness or a mere departure from the norm is not enough. See also s. 22.1 of the Criminal Code.