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If You Can’t Do the Time, Don’t Commit the Crime: Bill C-45

The Federal Government of Canada on June 12, 2003, introduced legislation that would make available to prosecutors, the ability to charge individuals with criminal negligence for health and safety related offences under certain conditions. The bil…

The Federal Government of Canada on June 12, 2003, introduced legislation that would make available to prosecutors, the ability to charge individuals with criminal negligence for health and safety related offences under certain conditions. The bill was voted on, passed, received royal assent and is awaiting a date for proclamation (tentatively, March 31, 2004).

Charges for criminal negligence will depend on whether the offence is a summary conviction or an indictable offence. Summary conviction offences encompass the most minor offences in the Criminal Code. Examples are “cause disturbance,” and “harassing telephone calls.” An indictable offence is more serious than a summary conviction offence. Conviction of an indictable offence exposes you to greater penalties. The penalties are list below

INDIVIDUALS:

Injury – 10 years in prison

Death – Life Imprisonment

ORGANIZATIONS:

Summary Convictions – $100,000

Indictable Offence – $ unlimited

The legislation was brought forward in June of last year from a recommendation from a judicial inquiry from the Westray Mine Accident in 1992. 26 miners were killed as a result of a disregard for health and safety measures by the company. Charges for criminal negligence failed as a result of the lack of legislation in the Criminal Code of Canada.

Under Bill C-45, the Criminal Code places a legal duty on “Every one who undertakes, or has the authority, to direct how another person does work or performs a task to take reasonable steps to prevent bodily harm to that person or any other person, arising from that work or task,” this brings more people into the mix to include all persons who may be affected by the work or task. This legal duty is similar to many provincial requirements to take every precaution reasonable. The difference of course is that if convicted, you have a permanent criminal record.

Bill C-45 also clarifies or broadens some definitions such as the term “organization” rather than corporation and will extend to every business in Canada. The definition of organization will include “a firm, a partnership, a trade union or an unincorporated association” as well as the existing definition, “a public body, a body corporate, a society, a company”. Representative is defined as “a director, partner, employee, member agent or contractor or the organization” and the term Senior Officer is defined as “means a representative who plays an important role in the establishment of the organization’s policies or is responsible for managing an important aspect of the organization’s activities and , in case of a body corporate, includes a director, its chief executive officer and its chief financial officer”

Organizations would be best served by this legislation by ensuring that all levels of the organization have written job descriptions of all their managerial and supervisory personal whether unionized or not. These job descriptions must include an element of occupational health and safety, including responsibilities and authority to deal with any and all health and safety matters.

An organization that would exhibit best practice would ensure that their health and safety system includes four key areas, OH&S Leadership, Training, OH&S Administration and Program Development.

*OH&S LEADERSHIP

OH&S Leadership

Safety Committee

*OH&S ADMINISTRATION

OH&S Administration

Organizational Rules

Promotion and Communication

Job Task Analysis

Auditing

*TRAINING

Job Training

Safety Training

*PROGRAM DEVELOPMENT

Workplace Inspection

Health Controls

Engineering Controls

Emergency Preparedness

Wellness

Off the Job Safety

Employee Assistance Program

Ergonomic Controls

Accident Investigation

Purchasing Controls

Personal Protective Equipment

*Information pulled from the PPHSA System Audit

Organizations should develop standards, procedures and work instructions for all the areas mentioned above. They would be then communicated to all personnel, with an expectation that they will be followed to a tee and that anyone deviating from them, whether senior manager, supervisors, workers, suppliers and contractors will be dealt with in an equitable manner. The standards, procedure and work instructions would be reviewed on a regular basis and updated as the need arises. This would, of course, include changes to legislation as they became law.

Having these programs would not only help ensure your compliance with legislative requirements including the amendments to the Criminal Code of Canada under Bill C-45, but it would provide the framework for a healthy and safe workplace. After all, to be considered a best practice operation, this would be an expectation, not something we hope to achieve.

Jerry Traer, CRSP, is a Consultant Trainer with the Pulp and Paper Health and Safety Association covering Eastern Ontario. He has worked over 25 years in both pulp and paper industry and occupational health and safety.

PPHSA is a recognized leader in occupational health and safety in the pulp and paper and related industries. They can be reached at (705) 474-7233 or by e-mail at info@pphsa.on.ca