On the 20th anniversary of the deadly Westray explosion that killed 26 miners in Nova Scotia, the Canadian Labour Congress (CLC) has released a guide for investigating corporate criminal negligence in the event of a serious injury or fatality in a workplace.
Parliament passed legislation (Bill C-45) in 2004 holding employers criminally liable if they willfully fail to protect the lives and safety of their workers. Briefly stated, sections 22.1, 217.1 and 219 of the Criminal Code imposes 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.
The CLC guide titled Death and Injury at Work: A Criminal Code Offence was written by two University of Ottawa law students based on research and advice from police officers, prosecutors, lawyers and worker health and safety representatives.
According to the CLC, many Canadians have died at work since the law was passed; however, very few of these deaths have been investigated by police as possible charges. So far there have only been six charges laid. In two cases, criminal charges were subsequently withdrawn and replaced by OHS charges; one case ended in a plea, one convicted at trial; one charge was stayed and one charge is pending. In addition, there is no case law that directly addresses the application of the law.
Hence, in their opinion, the guide provides practical information to police about how they can do that.
I don’t know how willing the police force will be to use the guide, but it is an interesting document worth reading.