A few weeks ago I was at a local small business networking meeting when the topic of C-45 came up in the conversation. I had just spent a few minutes telling the group about the tragedy of Tim Hickman’s passing while I was the OHS Manager at the City of London back in the mid-1990′s. Following the short presentation one of the group members commented on the importance of safety due to Bill C-45. My reply…safety has always been important and has been regulated provincially across Canada for decades…C-45 has only raised the stakes for negligent individuals and organizations.
This wasn’t the only time I’ve heard these comments about safety now being regulated due to C-45. This seems to be a recurring theme in conversations with non-safety professionals when you get them thinking and talking about safety. Is it just that C-45 has been marketed better than provincial regulation? Did we do a better job of getting the message out to a broader audience?
Thinking back to 2003 and 2004, I was very involved in Ontario in getting the message out on C-45. As a Synergration Consultant with IAPA, I was the lead specialist responsible for the content of our C-45 information sessions. We teamed up with labour lawyers in communities across the province to deliver half day sessions extolling our views on how C-45 would change the health and safety landscape. We must have done hundreds of these sessions. I think we scared a lot of people. In some cases, we woke some people up as well. But you have to wonder, are the people that come out to a health and safety information session the type of people that C-45 would apply to?
So what does C-45 really say? Firstly, its not C-45 any more. C-45 was a federal bill to amend the Criminal Code of Canada. Today, it is the Criminal Code of Canada that raises the spector of unlimited fines and life imprisonment. Bill C-45 has no power over workplaces. So in future let’s just refer to C-45 as the CCC.
Last night I spent some time taking a look at some of my old files and presentations from that time, trying to refresh myself on the big changes that the CCC brought to OHS. Here are some observations for your consideration:
- the courts now have the ability to be successful in a health and safety negligence prosecution. One of the failings of Westray was that it was difficult to make a charge stick with the CCC as it was written.
- there is now a positive proactive duty for a person in authority over a worker or workplace to protect a person from bodily harm arising from a workplace activity. There are some interesting elements of this new duty:
- notice that the duty speaks to a person in authority – this does not necessarily mean they have to have supervisor, etc. in their title – just the power to direct the work of others
- the duty is one of protecting a person; not necessarily a worker as is referenced in most provincial statutes – there are some impacts to visitors and members of the public
- finally, the duty also relates to bodily harm from a workplace activity – is there a possibility of impact arising to a third party as a result of a workplace issue?
- the definition of “organization’ has been expanded to allow for other’s historically not touched by provincial health and safety regulation to be charged
- to be successfully prosecuted the directing mind of the organization has to be shown to to have acted with a wanton and reckless disregard for the health and safety of a person or to have insulated themselves from knowledge related to the management function of OHS
- since this is the CCC, the burden of proof is on the Crown vs. in a provincial charge the accused has to demonstrate due diligence – so under the CCC, innocent until proven guilty is the presumption
- penalties can be stiffer – on indictment the potential exists for an unlimited fine and life imprisonment
- the court can be more creative in establishing probationary penalties in addition to the fines and imprisonment
- not only would you have the provincial OHS regulatory body investigating a serious event; you may also have the police present ie. a workplace accident can become a crime scene
Some significant foundational changes, but from a proactive injury reduction perspective the CCC doesn’t do much, in my opinion. It raises the profile and potential penalties for workplace health and safety. It has gained more public attention than the host of other provincial health and safety legislation. Its tough to say if this will last though. There have been a few prosecutions but even after 6 years its still early days in the application of the CCC amendments made by C-45.
At the end of the day, I think its another motivational and enforcement tool for our society. It’s another tool for us, the OHS practitioner, to help leaders understand the importance of our work and the need to protect our people and our organizations.
That’s what I think about the CCC. What about you? How has the CCC affected your work?
Andrew…a Canadian Safety Guy
PS…these are just my thoughts…if you want legal advice…you know who to call…a lawyer…make sure though, that the lawyer specializes in OHS law!