The Generals - Spring/Summer 2014 - (Page 36)

FEATURE BillYears Later C-45: Ten By Norm Keith, B.A., J.D., LL.M., CRSP, Partner, Fasken Martineau (Toronto) O n March 31, 2014, Bill C-45 will celebrate its 10th anniversary. This decade-old law established, for the first time in Canadian history, a crime of Occupational Health and Safety (OHS) Criminal Negligence. Upon conviction, an individual may receive life imprisonment and a corporate defendant may receive an unlimited fine. For the last ten years, Canada has had one of the most strict criminal laws relating to workplace health and safety in the western world. However, in these first ten years, this law has not been strictly enforced nor has it been effective in reducing workplace accidents. Why have there been so few charges laid by the police under the legal changes? Why has Bill C-45 been so ineffective? This article will look at those questions and the changes that Bill C-45 brought about, how it has been enforced, and how employers, directors and officers can best protect themselves from criminal prosecution. This article will also provide a review of the Metron Construction case and its implications for future prosecutions and penalties under Bill C-45. Bill C-45 was the Criminal Code amendment reaction to the Westray Mine Disaster that occurred in May, 2002. Almost 12 years after the death of 26 miners in the Pictou County, Nova Scotia, mine disaster, the federal government led by Jean Chretien passed Bill C-45 into law. Greg Jost, one of the drafters of Bill C-45, said that the bill was a "made in Canada" solution to three perceived problems: 1. the need for a new OHS crime to deal with a Westray Mine scale of workplace disaster; 2. a new approach to holding corporations accountable in criminal law; and 36 3. new powers for courts to impose penalties and probation on organizations. I have often been asked why there have not been more than ten prosecutions in the ten years that Bill C-45 has been law, especially since the number of fatalities has not changed over that decade. I have also been asked if Bill C-45 has reduced workplace fatalities. The Association of Workers Compensation Boards of Canada indicates that for the last ten years, the average number of fatalities has remained constant, at approximately 990 every year for the last ten years. One is hard-pressed to understand why, when you have over 9,000 persons killed on the job in a ten-year period, only ten of them have resulted in a police investigation and criminal charges. That number of criminal charges, and number of convictions, is extremely low. Therefore the question remains, why are so few cases prosecuted under Bill C-45? View this issue online at In my view there are at least three reasons. First, there has been very little education for both police and Crown attorneys on the existence of Bill C-45. The Bill C-45 amendments, especially for corporations, require an assessment of a company's management structure to determine who is a "senior officer" and of the decision-making process. This is not the normal area of training, knowledge, and expertise of the police and Crown attorneys to investigate and prosecute criminal charges under Bill C-45. Secondly, some police officers who have recommended Bill C-45 charges have been told by Crown attorneys that they should "leave it to the Occupational Health and Safety regulator" and not lay criminal charges. The police have been told by Crown attorneys that this is really not an area of concern for the police. This is completely contrary to the purpose of Bill C-45 and the intention of the federal government in

Table of Contents for the Digital Edition of The Generals - Spring/Summer 2014

Chairman’s Message
President’s Message
Member Milestones
Government Relations Report
Index to Advertisers
Partnering: The Deliberate Creation of Culture that Supports Collaboration
75th AGM and Conference – Scottsdale, Arizona
2014 Conference: Las Vegas
OGCA Affinity Program
OGCA 75th Anniversary Gala
The Winds of Change Help Transform the WSIB
COR Designation Provides Safety to Construction Workers and Buyers
Thinking, Working, Growing: Ledcor Group
Bill C-45: Ten Years Later
Workshield Health and Safety Solutions Inc. Formed to Meet the Requirements of New Legislation (297/13)

The Generals - Spring/Summer 2014