Bill C-45 creates a new Criminal Code duty to protect workers and the public. This new duty fits within existing Criminal Code negligence provisions. Two main offences will fall into this category under OH&S:
- criminal negligence causing bodily harm,
- criminal negligence causing death.
The Criminal Code now reads “everyone who undertakes, or has the authority to direct how another person does work or performs a task, is under legal duty to take reasonable steps to prevent bodily harm to that person or any other person, arising from that work or task.” (S. 217.7) This has particular importance to lead hands and working forepersons who, before Bill C-45, were not clearly subject to a legal duty under OH&S legislations.
Ryan Conlin, a lawyer with Stringer Brisbin Humphrey, explains the Code is meant to be broadly applied – not just aimed at managers and supervisors. “Job descriptions are irrelevant in cases of criminal conviction,” he says. The Code now also applies to public bodies, corporations, societies, charities, companies, firms, partnerships, trade unions and municipalities. The proposed amendments clearly indicate that Parliament expects senior management to take a proactive role in health and safety matters.
As serious as it sounds, criminal negligence is defined as showing “wanton or reckless disregard” for the lives or safety of other persons in performing any duty or omitting to perform any duty required by law. Criminal negligence is not a mere error in judgment or failure to comply with a regulatory requirement. A breach of the Occupational Health and Safety Act (OHSA) is not automatically going to result in a Criminal Code prosecution – there must be a wanton or reckless disregard for safety. To explain the concept of “wanton and reckless disregard,” Conlin refers back to his law professor who gave the example of “purposely driving through a busy intersection while blindfolded.”
Fortunately, few companies will experience a serious, horrific workplace accident resulting in a criminal investigation and a charge under Bill C-45. However, companies would be well-advised to prepare a written Accident Response Plan as part of their official safety programs. Cheryl Edwards, a partner with Stringer Brisbin Humphrey, says the Accident Response Plan is about managing a dreadful accident once it has happened – it helps the organization and individuals record and preserve details and evidence for possible future litigation, as well as to manage the flow of information to the Ministry of Labour and police.
Bill C-45 also requires that all reasonable steps be taken to protect any person who enters a workplace or who may be affected by workplace activities – this includes the public. Edwards recommends conducting hazard assessments to determine the nature and extent of public access to workplaces and the extent to which people passing by a jobsite could be affected by the work. Protection of the public should now be included as part of safety training given to workers.
A Plain Language Guide to Bill C-45 is available on the Department of Justice web site at: www.canada.justice.gc.ca/en/dept/pub/c45/index.html.
