The Toronto Star recently reported that Vadim Kazenelson, 35, of Gormley, Joel Swartz, 51, of Toronto, Benny Saigh, 52 of Toronto, and Metron Construction Corporation have each been charged with criminal negligence causing bodily harm, and four counts of criminal negligence causing death for workplace fatalities. The charges carry the potential of life prison terms. An overview of this matter was posted on First Reference Talk recently here and here.
Under Bill C-45, an amendment to the Criminal Code passed on March 31, 2004, the Crown is allowed to prosecute corporate executives, directors and managers who act wrongfully or neglect to uphold their responsibilities to make and keep workplaces healthy and safe. Moreover, Bill C-45 added Section 217.1 to the Criminal Code to impose a duty on organizations and their representatives (whether a director, partner, manager, supervisor, employee, member, agent or contractor of the organization) who have authority to direct how others do work or perform a task to take reasonable steps to prevent bodily harm to persons performing the work or task, and to the public, arising from the work or task.
Since the inception of Bill C-45, charges have now been laid in just six cases, and only one resulted in a conviction. As a result, many are wondering if the enforcement of such provisions is even possible.
The last charges were laid in Ontario and British Columbia but the cases have not yet been heard.
Regarding the Ontario case, last March, Police in Sault Ste. Marie charged two individuals and one organization with criminal negligence causing death in the death of public works employee James Vecchio at the city landfill: crane operator Anthony Vanderloo, crane owner David Brian Selvers, and 1531147 Ontario Ltd., operating as Millennium Crane Rental of Sault Ste. Marie. Preliminary results suggest that the operator of the crane, which was loading concrete into the excavation hole where Vecchio was working, backed up too far while repositioning, and subsequently fell into the hole, crushing Vecchio.
Criminal negligence causing death is an indictable offence for which the maximum sentence is life imprisonment, or very steep fines with no limits. If the above cases go to court, in offences based on negligence, the court must determine whether an individual acted so carelessly or with such reckless disregard for the safety of others as to deserve criminal punishment. The Crown will have to prove that employees of the organization committed the careless and reckless act, and that a senior officer, director or manager did not take the necessary reasonable steps to prevent them from doing so.
We will have to wait and see how these three pending cases evolve.
The provisions of Bill C-45 may not yet have received the judicial interpretation that it warrants, but the tide maybe changing. In any case, full compliance with the Occupational Health and Safety Act duties and requirements should provide organizations and corporations with a strong defence against a charge of criminal negligence.
First Reference Human Resources and Compliance Managing Editor