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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