BILL C-45: The advent of a new health and safety crime

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By Norm Keith, B.A., LL.B, CRSP and Yvonne O'Reilly, CRSP

New legislation has been passed that establishes for the first time a duty to ensure workplace health and safety under the Criminal Code .  Bill C-45 will be proclaimed into force on March 31, 2004.  Bill C-45 compels all employers across Canada to prepare how to demonstrate that they have met their legal obligations relating to workplace health and safety.  
 
The federal government through Bill C-45 will also impose a new legal duty to all “organizations” whether they are federally or provincially regulated and it will be in addition to existing occupational health and safety (OHS) legislation. 
  New Legal Duty: “Every one 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”.
 This duty will apply to individuals and to organizations.  Some of the key points to review are:
1. The duty applies to every one who undertakes or has the authority to direct how work is performed.  This duty goes beyond the title of supervisor and could even potentially involve a lead hand or a co-worker.
2. A 'representative' of the organization includes a contractor.  This definition extends beyond the relationship established in most OHS legislation, and requires you to become more aware of not only your contractor's OHS program but also how they implement it.
3. The organization's liability will depend on the actions of the “senior officer”.  Senior officer is not just an officer or director of a corporation, but is more broadly defined to be either a person who plays an important role in the establishment of an organization's policies or is responsible for managing an important aspect of the organization's activities.  This could not only involve a senior officer or director, but potentially someone in the role of plant manager or site superintendent  an individual who is responsible for managing an important aspect of the organization's activities. 
4. The term “corporation” has been replaced by “organization” so as to deliberately capture the complex structure of businesses.
  The Criminal Code does not establish specific criteria that must be in place or regulations that must be followed. Instead, it merely requires that “reasonable steps” be taken, and includes the penalties that would follow if it was determined the duty was not met.  One of the key drafters of the legislation from the Department of Justice has publicly stated that in his opinion, taking reasonable steps would imply following your OHS legislation.  What must also be considered and included in your OHS management system is incorporating best practices and industry standards, so as to demonstrate taking all reasonable steps.  It is unclear if industry standards and best practices will now be established nationally, or if the police investigating offences under the Criminal Code will be influenced by OHS requirements from a particular jurisdiction.  High fines are currently not uncommon for health and safety prosecutions; however, life imprisonment, a criminal record and the public shaming aspect of probation are far reaching to you as an individual and to your organization itself.
 
Bill C-45 will make full awareness of your rights under the Charter of Rights and Freedom more important than ever.  Pre-charge rights under the Charter include the right to be free from unreasonable search and seizure and the right to retain and instruct legal counsel.  Documents cannot be seized by the police or other authorities for the purpose of use in a criminal investigation without proper authorization, likely in the form of a search warrant.    Further, the right to direct a lawyer and obtain legal advice is critical with the new risks and criminal liabilities of Bill C-45.  Also, once charges are laid, the accused is presumed under the Charter to be innocent and therefore receive the proper protection of their rights under the Charter.  The importance of obtaining and relying upon legal advice from an expert in the area of OHS and criminal law is one of the most important rights that an accused will have under the Charter if charged with a criminal offence.
  Recommended steps at this point are to become familiar with how your organization has been structured, and identify who meets the new definitions as listed under the Criminal Code with particular focus on who has the authority to direct work within your organization, and your relationship with contractors.  It is also worth considering consulting a lawyer to draft a response protocol for your organization to ensure all of your rights would be protected with relation to a criminal or regulatory investigation.  Assess your current OHS management system to ensure that as a minimum, your organization is currently in compliance with the requirements under the applicable OHS legislation.
  Bill C-45 emphasizes the importance of integrating an effective OHS management system throughout your organization.

* Norm Keith is a Partner at Gowling Lafleur Henderson LLP and leads the National Occupational Health and Safety Training, Consulting and Legal Services practice. He can be contacted at 1-866-862-5787 Ext. 5699 or at norm.keith@gowlings.com. Yvonne O'Reilly is the Senior OHS Consultant within the team and can be contacted at Ext. 3580 or yvonne.oreilly@gowlings.com.   Gowlings can draft a Legal Response Protocol Procedure for your organization, conduct an OHSLAW Gap Analysis and is offering our “Bill C-45: From Boardrooms to Courtrooms” seminars across Canada  further seminar information and legislative updates are available at www.gowlings.com/ohscourses under 'News & Trends'.
  ©Norm Keith, B.A., LL.B, CRSP, and Yvonne O'Reilly, CRSP, Gowling Lafleur Henderson LLP, 2004 5661279