CONDOCENTRIC: Bill C-45 - Criminal Code Amendments

"When the death knells of Chernobyl and Bhopal echoed around the world, research on the catastrophic potential of complex technologies went into high gear. Evidence from Westray [the mining disaster which claimed 26 lives] shows a long-standing pattern of safety violations: combustion engines refueled with the motors running, a "volunteer" system for applying limestone to reduce coal dust concentrations, cigarette butts and oily rags littering the mine floor. 'We found at Westray a pattern of behaviour that sociologists call mock bureaucracy - a situation in which workers fail to follow regulations and the managers fail to enforce compliance,' says Hynes, whose investigation of Westray is part of his doctoral research. Rules are ignored because they are perceived as "bureaucratic paraphernalia" without legitimacy in themselves. What is remarkable at Westray though, he says, is that rules tied to workers survival, which should be deeply meaningful, were ignored?."[1] [emphasis added]

Bill C-45, which came into force on March 31, 2004, amended the Criminal Code of Canada, specifically via section 217.1, to change the perception of rules as "bureaucratic paraphernalia" by significantly expanding the scope of liability faced by employers, directors, officers, managers, employees, agents and contractors who exercise control over or have authority over a workplace. Specifically, section 217.1 states:

Duty of persons directing work

217.1 Everyone 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.

Other consequential amendments to the Code include the change in terminology from "corporation" to "organization", which broadens the nature and scope of liability by focusing on the nature and quality of the association rather than the entity’s legal status. However, there are statutory limits put on liability as exemplified in sections 22.1 and 22.2:

22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if

1. acting within the scope of their authority
   1. one of its representatives is a party to the offence, or
   2. two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and

2. the senior officer who is responsible for the aspect of the organization's activities that is relevant to the offence departs - or the senior officers, collectively, depart - markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence.

22.2 In respect of an offence that requires the prosecution to prove fault - other than negligence - an organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers

1. acting within the scope of their authority, is a party to the offence;
2. having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the organization so that they do the act or make the omission specified in the offence; or
3. knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence. [emphasis added]

It should also be noted that "representative" and "senior Officer" as defined cover broader categories of personnel than the "directing mind" concept under common law, which previously limited corporate liability to the conduct of senior corporate officials with the authority to make policy. The modifications seek to widen the pool of individuals whose actions and intentions can trigger criminal liability of the organizations for which they work. [2]

What does this mean? Accountability for actions or omissions by organizations and those individual placed in authority, either individually or in the aggregate, where the prescribed criminal threshold is met. Where an employer, its officers, directors, senior management, agent, contractor and even staff are criminally negligent, encourage a breach or fail to take reasonable steps to prevent bodily harm to a person in respect of work or a task, he/she/it will be exposed to criminal liability. Prior to these legislative changes, corporate entities were largely immune to criminal liability.

These new standards under the Criminal Code do not replace or override an employer’s obligations under the Occupation Health and Safety Act (Ontario) (OHSA). Rather, an individual found guilty of an offence under the OHSA may, in addition to criminal liability, still be fined up to a maximum of $25,000.00 and/or sentenced up to one year in jail per offence. If a corporation is convicted of an offence under the OHSA, the maximum fine that may be imposed upon the corporation is $500,000. Under the Criminal Code, there is no pre-determination of potential fines for indictable offences. Conviction of criminal negligence causing death could also mean a penalty of life imprisonment under the Criminal Code.

The new provisions do send a very serious and clear message to employers, and their respective directors, officers, managers and anyone directing the performance of another’s work to ensure: (1) that there are adequate resources devoted to the development of safety policies and procedures; (2) that such policies and procedures are actually developed, documented, implemented through training of employees to prevent a workplace injury; and (3) that such policies and procedures are systematically audited for implementation compliance. To paraphrase Mr. Jeff Jeffcoatt (Construction Control Inc)’s sentiment from an article he produced for us last year, the reality is that it has never been more important to ensure and be able to demonstrate organizational compliance with applicable occupational health and safety laws.

From “Common Elements" Winter 2005

[1] Leslie-Spinks, A., “Researchers Criticize Westray Mine Safety - Better Grasp of Organizational Culture Needed”, The Gazette (University of Calgary) 1996.

[2] Goetz, D.; “Bill C-45: An Act to Amend the Criminal Code (Criminal Liability of Organizations)”; Parliamentary Research Branch, July 3, 2003.

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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