Resource Articles
July, 2005
Bill C-45
Criminal Liability in Occupational Health & Safety
Sections:
BILL C-45
| Date |
Description |
| June 12, 2003 |
the Honourable Martin Cauchon, Minister of Justice and Attorney
General of Canada, introduced Bill C-45: An Act to amend the Criminal
Code (Criminal Liability of Organizations) |
| September 19, 2003 |
Bill C-45 received its Second Reading in the House |
| October 27, 2003 |
It was passed by the House with very minor revisions made by the
Standing Committee on Justice and Human Rights |
| October 30, 2003 |
It was passed, unamended, by the Senate |
| November 7, 2003 |
Bill C-45 received Royal Assent |
| February 25, 2004 |
The date for Bill C-45 to go into effect was announced.
"Her Excellency Governor General in Council hereby fixes March
31, 2004 as the day on which the Act, comes into force, other
than section 22, which come into force on assent." |
Among others, this Bill includes the following provisions:
- imposition of legal duties on employers and those who direct work
to take reasonable measures to protect employee and public safety;
- if this duty is carelessly disregarded and bodily harm or death results,
an organization could be charged with criminal negligence;
- organizations may be found guilty of “negligence” if a
“representative” is a party to the offence, or a “senior
officer” (or officers) who is (are) responsible for the aspect
of the organization’s activities that is relevant to the offence
departs “markedly” from the standard of care to prevent
a representative of the organization from being a party to the offence.
- Most importantly: “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.”
- The fine for a “summary conviction” has been increased
from $25,000 to $100,000. There is no ceiling for fines on indictable
or more serious offences. Fines of up to $1,000,000 are provided for
breach of the Canada Labour Code.
In general, the following proposed measures would make corporations criminally
liable:
- as a result of the actions of officers who oversee day-to-day operations,
but who may not be directors or executives;
- when executives with executive or operational authority intentionally
commit, or direct employees to commit, crimes to benefit the corporation;
- when officers with executive or operational authority become aware
of offences committed by other employees, but do not take action to
stop them; and
- when the actions of those with authority and other employees, taken
as a whole, demonstrate a lack of care that constitutes criminal negligence.
1The term “corporation” has been replaced
by the term “organization.” The definition of “organization”
now includes “a public body, society, and company,” which
are taken from the Criminal Code, but now adds a “firm, partnership,
trade union or municipality,” or various “association[s] of
persons,” which are new.
2The definition of “representative” now includes
“a director, partner, employee, member, agent or contractor of the
organization,” while a “senior officer” means a representative
who plays an “important role in the establishment of the organization’s
policies or is managing an important aspect of the organization’s
activities and, in the case of a body corporate, includes a director,
its chief executive officer and its chief financial officer.”
Implications for Member Firms
IAPA member firms will now become criminally liable for any actions,
or inactions, that result in serious harm to any employee or member of
the public.
Implications for IAPA
IAPA employees, Board Members, and Executives are not liable for the
actions of our member firms. They are neither “representatives”
nor “senior officers” of our member firms. They are, however,
“representatives” of our firm, and are thus liable for the
actions or inactions of our employees.
Potential Scenarios
Private
Bill C-45 was raised in the House of Commons as a result of the deaths
of 26 miners at Westray, Nova Scotia in 1992. Similar events may occur
in the future. Let us assume, for example, that there are multiple fatalities
due to the negligence of either a “representative” or a “senior
officer” at a milling facility. Let us assume that, due to a lack
of lock-out/tag-out procedures, there is a chemical spill from a degreaser.
Toxic chemicals are spilled and inhaled by a work crew. As a consequence,
there are three fatalities. Both the employer and specific employees could
be charged with criminal negligence, and fined accordingly. Specific employees
may even be sentenced to jail under the Criminal Code of Canada.
Public
Let us take the case of the deaths of two youth at a facility on “Take
Our Kids to Work” day. The youth had unauthorized access to a vehicle,
were not supervised, and crashed the vehicle, resulting in their deaths.
The firm and its “representatives” and/or its “senior
officers” would likely have been, if Bill C-45 were law, charged
with criminal negligence for endangering the public. The firm would have
been fined and the “representatives” and/or its “senior
officers” would have received jail sentences and/or fined. And the
charges would have been filed under the Criminal Code.
It is important to note that, in addition to being charged under the
Criminal Code, firms may also be charged under health and safety statutes
and regulations.
For more information on Bill C-45
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