Defending The Regulatory Offence
Daniel P. Ryall, Associate
FILLMORE RILEY
1700 Commodity Exchange
Tower
360 Main Street, Winnipeg,
Manitoba.
danryall@fillmoreriley.com
(204) 957 8355
Question:
What does a prosecution for violating an occupational health and
safety law mean?
In the simplest terms,
any individual, or business entity, whether it is a corporation,
partnership or association, that employs people (and in certain
circumstances "controls" others) in a workplace have general and
specific duties imposed upon them by law to provide for the safety,
health and welfare of those people. In the event that the individual
or business entity fails to meet these duties, the appropriate
governing body may investigate and institute a prosecution.
The prosecution of the
individual or business entity is not dissimilar to a criminal
prosecution. The action is brought before the Provincial
Courts and is prosecuted by a Crown attorney. The rules
of criminal procedure apply. In the event of a conviction,
penalties in the nature of fines are typically imposed and, at
least for individuals, the potential for incarceration exists.
Although a conviction for a violation of occupational health
and safety laws does not result in a criminal record, the appropriate
governing body does maintain a record which may impact the severity
of penalties and prosecutorial discretion to lay charges in the
event of future violations.
New Criminal
Provisions:
Although violations of
health and safety laws typically do not lead to criminal liability,
the Federal Government has recently passed Bill C-45 in order
to expand corporate criminal liability in workplace safety.
The amendments were largely due as a result of the efforts of
the United Steelworkers of America following the Westray Mine
disaster, which occurred in Nova Scotia in 1992. As of
November 7 th , 2003, the Bill received Royal Assent. The
Criminal Code of Canada now contains provisions affecting
occupational health and safety.
Prior to the amendments,
corporate criminal liability depended upon acts or omissions by
a senior member of an organization i.e., the "directing mind"
(any individual who has explicitly or implicitly been given authority
to design and supervise the implementation of corporate policy
rather than simply carrying it out) if the acts or omissions were
within the scope of the actor's authority. Now, corporate
criminal liability may be attributed to a corporation by any act
or omission by any employee, agent or contractor. In addition,
separate acts or omissions by different persons may be taken together
or in the aggregate in order to constitute the offence which is
predicated on negligence.
Question: What
is the threshold of intent, if any, for a corporate criminal act?
Corporate criminal liability
need not be founded on the specific intent to commit an offence.
Crimes that embody an element of negligence may
be attributed to a corporation through the aggregate fault of
the senior officers (any representative of a corporation who plays
an important role in operational or policy making functions, e.g.
a directors, CEOs, and CFOs ). The sufficient level of
negligence required is a "marked departure" from the reasonably
expected standard of care.
Crimes that embody an element
of intent or recklessness may be attributed to
a corporation where a senior officer is party to the offence or
where a senior officer has knowledge of the commission of the
offence and fails to take all reasonable steps to stop it.
However, crimes of this nature do not permit the consideration
of aggregate acts or omissions of multiple persons. Further,
the acts or omissions must be undertaken, at least in part, for
the benefit of the corporation. In order to run afoul of
these provisions, the actor must intend to commit the offence
and direct other representatives to act in the commission of it,
or at a minimum, failing to take reasonable measures to stop an
offence knowing a representative is about to be a party to it,
i.e. willful blindness. Obviously, the ability to recognize
what constitutes an occupational health and safety offence now
becomes critical. The failure of senior officers to appreciate
conduct as a violation may well lead to criminal liability.
With respect to criminal
offences for workplace safety, the amendments now specifically
permit criminalization of a breach by those who are responsible
for directing the work of others, or
of one's duty to take reasonable steps to prevent bodily
harm arising from that work.
Of particular interest
will be how the possibility of being charged with a criminal offence
will alter the investigative powers of safety officers who, under
statute, have expansive powers beyond what ordinary peace officers
enjoy. This aspect has not been considered by the new amendments
and will likely result in various Constitutional questions.
For the most part, the
vast majority of charges for violations of occupational health
and safety laws are and continue to be properly classified as
a "regulatory offence." Regulatory offences are classified
as "strict liability offences." To understand the duties
under the governing occupational health and safety laws it is
essential to understand what is meant by the term "strict liability
offence."
The Strict Liability
Offence:
It is helpful to understanding
the strict liability offence by comparing it to what it is not,
i.e. a criminal offence. Justice Cory, formerly of the
Supreme Court of Canada in Wholesale Travel Group [1]
differentiated it as follows:
"…regulatory offences
and crimes embody different concepts of fault. Since regulatory
offences are directed primarily not to conduct itself but to the
consequences of conduct, conviction of a regulatory offence may
be thought to import a significantly lesser degree of culpability
than a conviction of a true crime. The concept of fault in regulatory
offences is based upon a reasonable care standard and, as such,
does not imply moral blameworthiness in the same manner as criminal
fault. Conviction for breach of a regulatory offence suggests
nothing more than that the defendant has failed to meet a prescribed
standard of care."
In the landmark decision
Sault Ste Marie [2]
(the seminal decision with respect to the defence of due diligence
discussed hereafter), the Supreme Court of Canada determined that
provincial legislatures have the power to create one of three
types of offences: (1) mens rea offences; (2) absolute
liability offences; or (3) strict liability offences. They are
differentiated as follows:
• Mens
Rea offences : the prosecution must prove beyond
a reasonable doubt, the positive state of mind of the accused,
such as intent, knowledge, or recklessness; e.g. arson
• Absolute
Liability offences : the prosecution need only prove
beyond a reasonable doubt that the accused committed the prohibited
act. There is no relevant mental element .
Intent is irrelevant and it is no defence that the accused was
entirely without fault; e.g. speeding
• Strict
Liability offences : the prosecution need only prove
beyond a reasonable doubt that the defendant committed the prohibited
act – much like absolute liability offences.
However, in these types of offences, the onus then shifts to the
accused to establish on a balance of probabilities that he has
a defence of due diligence.
Justice Dickson's comments
in the Sault Ste. Marie are instructive:
"Offences in which
there is no necessity for the prosecution to prove the existence
of mens rea [a mental element]; the doing of the prohibited
act prima facie imports the offence, leaving it open
for the accused to avoid liability by proving that he took all
reasonable care. This involves consideration of what a reasonable
man would have done in the circumstances. The defence will
be available if the accused reasonably believed in a mistaken
set of facts which, if true, would render the act or omission
innocent, or if he took all reasonable steps to avoid the particular
event . These offences may properly be called offences of
strict liability." (emphasis added)
Before discussing what
is meant by the term "due diligence" it is important to note that
generally, all legal defences which are available in prosecutions
for provincial offences are also available in a strict liability
offence. For example, it is always open to an accused to argue
that the Crown has failed to prove its case beyond a reasonable
doubt. [3] Other defences
such as officially induced error, necessity, impossibility, self-defence,
duress, de minimis non curat lex , are available but
occur less frequently and as such will not be discussed in this
paper.
Proving the
Offence: General v. Specific Employer Duties:
Question: What
does the Crown have to prove in order to convict an accused, and
what does the accused have to do to avoid a conviction?
Occupational health and
safety legislation usually provides specific and detailed standards
for compliance, most often by way of regulations. In the absence
of specific provisions delineating the standard to be met by employers,
general industry norms and/or technical standards may
apply. Examples of such standards include the Canadian
Standards Association (CSA), and the International Standards Organization
(ISO).
When confronted with the
industry norm or standard, it is important to remember that unless
such standard is specifically incorporated into law by way of
a statute or regulation, then generally speaking, that standard
is not law . If, however, the standard is incorporated
into statute or regulation, then it has specific and direct legal
authority.
Typically, there will not
be a specific standard referenced in the legislation. In
these circumstances the Crown might seek to argue that the "industry
standard" is the "reasonable precaution that an employer
failed to undertake." This, however, is not the law.
At best, if evidence is presented demonstrating that a
particular course of conduct or precaution is standard industry
practice, it may then become a reference point from which to measure
an accused's conduct and nothing more.
General Duties:
There is an important distinction
between the general and specific duty provisions of the governing
legislation, especially as they pertain to an accused's ability
to establish the defence of due diligence. Section 124
of the Code and Section 4(1) of the Act are the "general
duty" sections. They provide, respectively;
Section 124 -
Every employer shall ensure that the safety and health at work
of every person employed by the employer is protected. (Federal)
Section 4(1) – Every employer
shall … ensure, so far as reasonably practicable, the safety,
health and welfare at work of all his workers; and comply with
this Act and regulations. (Manitoba)
Specific
Duties:
Section 125 of the Code
and the Section 4(2) of the Act are the "specific duty"
sections. Along with regulations, these provisions provide
the detailed framework of specific standards every employer must
meet in the context of their particular area of work.
The standard used to determine
whether reasonable care or due diligence has been established
in the facts and circumstances of a particular case may be different
when the standards to be met are broadly stated in as
in the general duty provisions such as s.124 of the Code or s.
4(1) of the Act, compared to when a particular standard is very
clearly defined in a specific duty provisions such as s.125 of
the Code or s. 4(2) of the Act (or even more specific where a
breach of a regulation is alleged). The difference is important
when considering what evidence is required for an accused's due
diligence defence.
This distinction was noted
in BBS Construction Ontario Ltd. [4]
which outlined the differences between establishing
that reasonable care had been taken in circumstances where a general
duty was placed on an employer compared to when specific duty
applied.
"In defence
of such a charge [general duties], evidence of general safety
consciousness, of good programs of safety instruction for workers,
of conscientious worker-supervision, or a general non-negligence
in the conduct in operation of the work place (at least in regard
to the general type of dangerous situation statutorily envisaged)
may suffice…But where the pith and substance of the statutorily
defined actus reus of the particular offence charged
amounts to failure to provide a piece of equipment to standards
specifically prescribed by regulation [specific duties], such
general evidence of "reasonable care" or "non-negligence"
will not, in my view serve to exonerate."
If the Crown has charged
an accused under the broad general provisions then the accused
is entitled to and should offer as evidence not only the safety
programs or measures related to the cause of the injury, but all
aspects of safety undertaken by the employer. This
evidence should be introduced to establish that the accused is,
on the whole and generally speaking, a careful employer who has
taken all reasonable steps to ensure a safe and healthy work place
. This evidence may properly be considered part of
the due diligence defence where the Crown has alleged that the
accused has "generally failed" to maintain a "safe
work place." Evidence of committee structures, safety
guidelines, general safety training and instruction, may all be
used to establish the defence in this respect.
In the Canadian National
Railway Company [5]
decision , the Manitoba Provincial Court found that
"the actus reus [the prohibited conduct] of the
offence charged as statutorily-defined, will determine to some
extent what kind of evidence will suffice for a defence of due
diligence to exonerate the accused." In CNR
the Crown took the position that the death of the employee was
in and of itself proof of the prohibited act. In other
words, the mere fact that the employee was employed and injured
at the work place was all that the Crown needed to establish.
The Court had difficulty with this contention and determined
that while the standard of care imposed on employers was high,
it did not go that far. Rather, in circumstances were the
death or injury of an employee was the direct result of the employee's
own negligence or deliberate breach of the safety rules and procedures
the employer, then something more should be required in order
to prove the offence.
Shifting the Onus of Proof to the Accused:
Question: Does
the employer have to prove anything?
Most non-legally trained
individuals will understand the principle that exists in most
free and democratic societies today, that the onus of proving
guilt or innocence, at least in a criminal context rests with
the prosecution. In other words, the accused does not have
to establish they are innocent, rather they are presumed innocent
and start from that position. In part, the same applies
to a regulatory or strict liability offence. The very nature
of a strict liability offence is that the Crown must first prove
a prohibited act beyond a reasonable doubt. The accused
is presumed and will be innocent until the Crown has met this
burden. However, if the Crown has met the burden that is not the
end of the matter. Once the Crown has established beyond
a reasonable doubt that the accused has fallen below the
reasonable standard of care the onus of providing proof to the
court then shifts to the accused who has a duty to prove on
a balance of probabilities that it took all reasonable care
under the circumstances to avoid falling below a standard.
To assist in understanding
the respective burdens of proof it is helpful, even if not legally
accurate, to liken the burden's to percentages. Proof beyond
a reasonable doubt might be equated with establishing to the Court's
satisfaction that it is 90% or more likely the accused committed
the offence. Proof on a balance of probabilities may be
equated with establishing to the court's satisfaction that it
is 51% or more likely the accused acted with reasonable care.
The Defence
of Due Diligence:
Question: What
is "reasonable care" and what is "due diligence"?
Reasonable care and due
diligence are simply interchangeable terms to describe the standard
of care required of an employer. Unwisely, Manitoba's legislation
incorporates the term "so far as reasonably practicable"
as the necessary standard of care. Theoretically, this could be
perceived as a higher threshold for an employer to meet than "reasonable
care" or "due diligence". In practice, Manitoba courts
do not appear to make any distinction between the two and simply
hold the employer to a standard of due diligence. Any interpretation
of the provincial legislative standard which would raise the standard
above "reasonable care" would likely be unlawful.
In the classic "due diligence"
or "reasonable precautions" defence, the test is whether
the defendant took all reasonable steps to avoid the particular
event. In Chapin [6]
, a case often cited in tandem with Sault Ste. Marie
, Justice Dickson of the Supreme Court of Canada described
the defence of due diligence as follows:
"An accused
may absolve himself on proof that he took all the care which a
reasonable man may have been expected to take in all the circumstances
or, in other words, that he was in no way negligent."
There are many factors
to consider when assessing the defense of due diligence.
The factors that follow are by no mean exhaustive, but are worth
consideration. Industry standards, economic realities,
forseeability, and experience of the employee all affect the standard
of care the employer must meet.
Industry Standards:
The existence of any general
standard of care common to the business activity in question must
be determined. Is there a standard practice of care commonly acknowledged
as a reasonable level of care and did the accused act in accord
with that standard? Second, are there any special circumstances
which might require a different level of care other than the level
suggested by the standard practice. Keep in mind evidence
of a standard practice is only a factor.
Reasonable care implies
a scale of caring. The reasonableness of the care is inextricably
related to the circumstances of each case. A variable standard
of care is necessary to ensure the requisite flexibility to raise
or lower the requirements of care in accordance with the facts
of each case. The degree of care warranted in each case is principally
governed by the following circumstances:
- Gravity of
potential harm;
- Alternatives
available to the accused;
- Likelihood
of harm;
- Degree of knowledge
or skill or expertise expected of the accused; and
- The extent
that the underlying causes of the offence were beyond the control
of the accused.
Economic Realities:
The relevance of economic
factors for an accused to pursue alternatives from the care exercised
is significant. The economics of various alternative solutions
is one consideration that must be weighed along with all the other
factors in assessing due diligence. The degree of control
that an accused can exercise over a problem must have an air of
reality and therefore must include some consideration of cost.
Economic factors are fundamental to determining what a particular
industry will adopt as its standard.
Forseeability:
Some courts have explained
the test of foreseeability to be not whether a reasonable man
in the circumstances would have foreseen the accident happening
in the way that it did happen, but rather whether a reasonable
man in the circumstances would have foreseen the source of the
danger as being a plausible hazard.
In Lackie Bros. Ltd.[7]
, the court determined that with respect to forseeability
and the defence of due diligence that:
"the Act
does not impose a duty to anticipate every possible failure; it
only expects the respondent to exercise every reasonable precaution."
It is important to understand
that the purpose of the legislation is not to require the employer
to eliminate every possibility of risk, however small, but to
guard against reasonable risk. What may properly be considered
foreseeable will under the circumstances likely be reasonable.
The Experience
of the Employee:
The experience of the employee
is a significant factor which affects the issue of forseeability.
Often the courts find that employers can not reasonably
be expected to foresee a highly trained and well experienced employee
will deliberately ignore safety procedures to their detriment.
The experience of the employee
will always be a factor to consider in determining whether due
diligence has been established. The statutory duty on employers
to provide information, instruction, training and supervision
will vary with each employee depending upon their experience.
Proving Due Diligence:
Establishing the defence of due diligence requires positive evidence
by the accused. Evidence that may assist an employer in meeting
its burden include, but are not limited to:
- that safety
was a priority at the workplace;
- that employees
were instructed in the proper work methods;
- that there
existed a proper and functioning safety committee
- there were
regular safety meetings
- the degree
to which rules were communicated to employees;
- whether a health
and safety inspector had previously inspected the workplace
area in question
- whether any
other employee had engaged in similar conduct previously;
- the fact that
the health and safety committee never contemplated the risk;
- whether the employee
negligently engaged in dangerous conduct;
- whether the company
reviewed its safety procedures regularly.
Duties of the
Employee:
Question: How
do the actions of the employee affect a prosecution?
An employer cannot absolve
itself of liability for an accident simply because an employee
has violated his/her statutory duties. The employer's duties
exist separate and apart from any breach by an employee. However,
this is not to say that an employer may not be absolved of liability
if the accident could have been prevented but for the negligent
act of the employee. Where behavior on the part of an employee
was not anticipated or foreseeable on the part of the company,
the company cannot be said to have acted without reasonable care.
In the St. Lawrence
Cement [8] decision,
the court commented as follows:
"Consideration
of the worker's conduct in determining the guilt or innocence
of an employer or supervisor under the applicable health and safety
legislation is clearly sound. Workers have clear and defined responsibilities
under the applicable health and safety legislation. To ignore
that fact in setting the standard of reasonable precautions under
the second branch of the due diligence defence is contrary to
the intention of the legislature, the internal responsibility
system of the applicable health and safety legislation and the
public welfare character of the charges under the applicable health
and safety legislation."
Considerations when imposing sentences:
Question: If
guilty, what does the court consider when assessing a penalty
for a violation of occupational health and safety laws?
The penalty to be imposed
for an offence is determined by a number of considerations, including
but not limited to:
• the size of
the company involved;
• the scope
of the economic activity in issue;
• the extent
of actual harm to the injured party;
• the extent
of potential harm to the public;
• the maximum
penalty prescribed by statute;
• the need to
enforce regulatory standards by deterrence;
• the health
and safety record of the accused;
• whether the
accused plead guilty;
• the remedial
measures taken after the accident;
• the efforts
to assist the victim and his family;
• the degree
of culpability of the employer;
• the maximum
penalty prescribed by law; and
• the remorse
of the accused.
Without being harsh the
fine must be substantial enough to warn others that the offence
will not be tolerated and must not appear to be a mere licence
fee for illegal activity. By the same token, it is important
that the court be careful not to fashion a sentence that would
be unfit or disproportionate based on the impact or injury to
the employee. The purpose of the legislation and the penalty
imposed is not such as to cause so much in the way of pain or
financial hurt that the accused is put out of business or put
in a position that is so serious to its financial well-being that
the company will or may fail.
Conclusion:
Defending workplace stakeholders
in occupational health and safety prosecutions requires a thorough
understanding of the regulatory offence and the role of the due
diligence defence. The significant and very recent developments
in workplace legislation and government focus on workplace accidents,
may have very significant financial impacts on both individual
and corporate accused. The role of defence counsel is critical
in assisting employers in both setting up proper measures to prevent
becoming an accused, and in defending them if they become one.
[1]
R. v. Wholesale Travel Group (1989), 70 O.R.(2d)
545 at 567, 63 D.L.R. (4 th ) 325 (C.A.), varied, [1991]
3 S.C.R. 154, 4 O.R.(3d) 799n
[2]
R. v. Sault Ste Marie(City), [1978] 2 S.C.R. 1299,
85 D.L.R. (3d) 161 (S.C.C.)
[3]
R. v. Towne Concrete Forming (unreported, October
26, 1993, Ont. Ct. (Prov. Div.)); R. v. Canron Inc. (unreported,
February 12, 1993, Ont. Ct. (Prov. Ct.)); R. v. Cooper Corp.
(unreported, May 15, 1990 Ont. Prov. Ct. (Prov. Div.))(Ontario
O.H.S.A. offences)
[4]
R. v. BBS Construction Ontario Ltd. (1989) C.O.H.S.C.
203 (Ont P.C.)
[5]
R. v. Canadian National Railway Company , [2003]
M.J.No. 104 (Man. Prov. Ct.), p.28
[6]
R. v. Chapin (1979), 45 C.C.C.(2d) 333 (S.C.C.)
[7]
R. v. Lackie Bros. Ltd., (1982) 7 W.C.B. 262 (Ont.
Co. Ct.)
[8]
R. v. St. Lawrence Cement, (Unreported, July 7,
1988, Sutter J.P., Ont. Offenses Ct.)
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