Canadian Occupational Safety

April 2014

Canadian Occupational Safety (COS) magazine is the premier workplace health and safety publication in Canada. We cover a wide range of topics ranging from office to heavy industry, and from general safety management to specific workplace hazards.

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16 Canadian Occupational Safety www.cos-mag.com BY NORM KEITH LEGAL LANDSCAPE O n March 31, 2014, Bill C-45 celebrated its 10th anniver- sary. This decade old law established, for the fi rst time in Cana- dian history, a crime of occupational health and safety criminal negligence. Upon conviction, an individual may receive life imprisonment and a cor- porate defendant may receive an unlimited fi ne. For the last 10 years, Canada has had one of the most strict criminal laws relating to workplace health and safety in the Western world. However, in these fi rst 10 years, this law has not been strictly enforced nor has it been effective in reducing workplace accidents. Bill C-45 was the Criminal Code amendment reaction to the Westray Mine disaster that occurred in May, 2002, causing the death of 26 miners in Plymouth, N.S. According to Greg Jost, one of the drafters of Bill C-45, the bill was a "made in Canada" solution to three perceived problems: • the need for a new OHS crime to deal with a Westray Mine-scale work- place disaster • a new approach to holding corpo- rations accountable in criminal law • new powers for courts to impose penalties and probation on organizations. In the 10 years since Bill C-45 has been passed into law, there have only been 10 prosecutions. This is particu- larly concerning because the number of fatalities has not changed over that decade — the average number of fatal- ities has remained constant at about 990 every year for the last 10 years, according to the Association of Work- ers' Compensation Boards of Canada. In my view, there are at least three reasons why there have been so few prosecutions. First, there has been very little edu- cation for both police and Crown attorneys on the existence of Bill C-45. The Bill C-45 amendments, especially for corporations, require an assess- ment of a company's management structure to determine who is a "senior offi cer" and also its decision-making process. This is not the normal area of training, knowledge and expertise of the police and Crown attorneys who investigate and prosecute criminal charges under Bill C-45. Second, some police offi cers who have recommended Bill C-45 charges have been told by Crown attorneys that they should "leave it to the occu- pational health and safety regulator" and not lay criminal charges. The police have been told by Crown attor- neys that this is really not an area of concern for the police. This is com- pletely contrary to the purpose of Bill C-45 and the intention of the federal government in passing it. However, Crown attorneys are provincially not federally appointed. Third, Bill C-45 has not been aggressively enforced because Canada is "soft" on enforcing white-collar crime. Canada has been criticized internationally for not enforcing legislation such as the Corruption of Foreign Public Offi cials Act, with only four prosecutions since the law was passed in 1999. Canada has been publicly criticized at the G20, and at the Organisation for Economic Co- operation and Development for being soft on white-collar crime. PROSECUTIONS There have been several high profi le cases prosecuted under the Bill C-45 amendments. The fi rst corporation to be pros- ecuted was Transpavé. It actually pleaded guilty to a criminal charge under the amendments, but only faced a fi ne of $100,000. The fi ne, since it was a joint submission, was not challenged on appeal by the Crown. This was a remarkably low fi ne for a company convicted of a criminal offence that caused the death of a worker. The most important — and still ongoing — case is the Christmas Eve fatality involving the death of four workers employed by Metron Construction in Toronto. It involved the prosecution of four individuals, including the president of Metron, and Metron the corporation itself. On the day of the accident, fi ve workers plus one supervisor, Fay- zullo Fazilov, boarded a swing stage to travel from the 14th fl oor to the ground level. At the time, there were only two lifelines for six workers. The combined weight of the work- ers and the equipment caused the swing stage to collapse, opening like a drawbridge, where four workers fell to their deaths. As part of the legal resolution, the charges relating to violations of Ontar- io's Occupational Health and Safety Act (OHSA), and the regulation for construction projects were withdrawn. Metron agreed to plead guilty to one count of contravening Bill C-45. One of the critical admissions by Metron, as part of the plea bargain agreement, is that Fazilov was a "senior offi cer" of Metron Construction. This was an essential admission for the corpo- ration to ensure its plea bargain be accepted by the trial court. In other words, without the admis- sion that Fazilov was a "senior offi cer," even though he was only a fi rst-line supervisor, the Crown could not have secured a conviction under the Bill C-45 amendments to the Criminal Code. A fi ne of $200,000 was imposed by the trial judge. But the Court of Appeal held that the sentence was "manifestly unfi t" and it increased the fi ne from $200,000 to $750,000, because of the nature and gravity of the events, the victims, the principle set forth in section 718 and the specifi c factors described in 718.2(1) of the Criminal After 10 years, Bill C-45 yields few prosecutions OHS criminal negligence charges average just 1 per year The Shoe Technology Company 100% Technologie STC (6941) SM.pdf 1 14-03-19 2:02 PM

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