Events Leading to Bill C-45
The Westray Coal Mine began operating on September 11, 1991 in Pictou County, Nova Scotia. The mine was owned by Curragh Resources Inc. and operated by a subsidiary, Westray Coal Inc. In the early morning hours of May 9, 1992, only eight months after it began operations, a catastrophic explosion destroyed the mine, killing all 26 miners who were working underground at the time.

In the aftermath of the tragedy there was public outcry and allegations of various safety violations and gross mismanagement by mine managers. Facing pressure from the victims’ families and union leaders, the Nova Scotia government brought criminal charges against the individuals responsible for managing the mine’s operations. However, attempts to prosecute corporate managers were unsuccessful. Critics alleged that the Crown had botched the prosecution. However, part of the failure to successfully prosecute the responsible individuals was due to the wording of the Criminal Code.

The report of a public inquiry into the disaster recommended changes to the Criminal Code that would make it easier for provincial governments to criminally prosecute companies and other organizations for failing to ensure the existence of safe work environments. The United Steelworkers’ Union, who represented the deceased mine workers, lobbied the federal government to implement the board of inquiry’s recommended changes to the Criminal Code.

On June 12, 2003 Parliament introduced draft legislation that would make corporations and other organizations criminally responsible for failing to provide safe workplaces. Bill C-45 received royal assent on November 7, 2003 and was proclaimed in force on March 31, 2004.

An Overview of Bill C-45
The Westray Mine disaster helped to focus attention on the difficulty of prosecutors to make corporations and other organizations criminally responsible for the wanton or reckless disregard of workplace safety. Prior to Bill C-45 corporations could only be found criminally responsible if a “directing mind” (usually a senior executive of the corporation), committed a crime. In such a case the corporation would only be responsible if the senior executive had intent to commit a crime and actually carried out the physical act of committing the crime. The inherent difficulty with the law prior to Bill C-45 was that it failed to address the reality in large corporations and organizations that it more often the case that the criminal act is carried out by lower level manager, supervisors and employees who are not legally considered to be “directing minds”. A further difficulty was that in many cases the intent (i.e., the wanton and reckless disregard for employee safety), to commit the crime may exist at the senior executive level but the actual criminal act is carried out by other individuals within the organization.

Bill C-45 was intended to get around the historical difficulties in prosecuting corporations and other organizations by:

1. removing the requirement that the offence be committed be a senior executive or “directing mind” of an organization;
2. removing the requirement that both the criminal intent and the act of committing the crime be carried out by the same individual within the organization;
3. expanding the identity of individuals within an organization who can commit a criminal act to include all employees, agents and subcontractors;
4. establishing that criminal intent can be attributed to an organization as a whole rather than to a specific individual within the organization;
5. in the case of wanton or reckless disregard, establishing that criminal intent will exist where a senior executive of the organization had knowledge of the offence but failed to take steps to stop the offence from occurring; and
6. creating a specific legal duty on anyone who undertakes, or has authority to direct how another person does work or performs a task to take reasonable steps to prevent bodily harm from occurring to anyone arising from that work or task.

As a result, Bill C-45 now creates liability for any organization (not just corporations), where an employee or representative has been criminally negligent. Organizations will also be criminally liable where a senior executive instructs another employee or representative to commit an offence under the Code or knows the commission of an offence is about to take place and does noting to stop it.

Aside from making it easier to prosecute organizations for the acts or inaction of their representatives, Section 217.1 of the Criminal Code creates a specific offence, for individuals and organizations, of failing to take reasonable steps to prevent harm to anyone arising from the performance of work or a task. The inclusion of the word “task” in this new section broadens the types of activities that will come within the purview of the section.

The new legislation does not replace the various Occupational Health and Safety statutes that exist in each province and at the federal level. Employers and managers continue to face potential fines and imprisonment under those statutes. Bill C-45 simply adds another layer of responsibility.

Should an organization be found guilty of an offence under the Criminal Code it faces a potential maximum fine of $100,000 for a summary conviction. The fine for a conviction of an indictable offence is unlimited. The organization could also be put on probation which could entail strict operating conditions. Any organization convicted of a criminal offence would have a permanent criminal record.

Individuals convicted of a violation of Section 217.1 would face possible fines and imprisonment and a permanent criminal record.

Avoiding Liability
Bill C-45 essentially requires organizations to be diligent about providing a safe workplace for employees. Wanton or reckless disregard for the safety of employees could be subject to prosecution of the organization. Because the law now imposes criminal liability on the organization based on the acts and inaction of the organizations employees and representatives as a whole, it is necessary that organizations institute processes, procedures and controls aimed at ensuring that each employee and representative in the organization is aware of, and in compliance with his or her health and safety responsibilities.

Steps that may help organizations reduce the risk of criminal prosecution and conviction include:

1. establishing comprehensive health and safety policies and procedures;
2. establishing a comprehensive health and safety training program for employees and managers;
3. providing health and safety training for senior officers and directors;
4. conducting regular audits and reviews of health and safety policies and training programs;
5. conducting regular health and safety compliance audits;
6. creating a health and safety department and/or appointing a health and safety manager;
7. establishing health and safety training and compliance requirements for all outside contractors;
8. establishing a records system to track compliance with health and safety policies and protocols;
9. establishing a health and safety information network or communication system to raise awareness of health and safety issues in the workplace;
10. conducting regular health and safety meetings and information sessions for employees and managers;
11. implement and enforce employee disciplinary guidelines for failing to comply with health and safety requirements; and
12. review and revise job descriptions to include appropriate health and safety responsibilities.

Conclusion
Employers and individuals have had legal obligations for the safety of employees for quite some time under Occupational Health and Safety Legislation. The Westray Mine disaster heightened awareness of the need for safe workplaces. Parliament has taken this issue seriously. With the amendments to the Criminal Code lawmakers have upped the ante for anyone who employs or supervises people.

It is too early to tell how vigorously prosecution under the new Criminal Code provision will be pursued against employers and managers. However, all organizations need to take health and safety in the workplace seriously and exercise diligence in ensuring that everyone connected with the organization is doing his or her part to ensure that the workplace is healthy and safe. Failure to do so could have grave consequences.