What is Bill C-45?
Bill C-45 is federal legislation that amends the Canadian Criminal Code. Bill C-45 became law on March 31, 2004 and is now the new Section 217.1 in the Criminal Code which reads:
"2.17.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task."
established new legal duties for workplace health and safety, and
imposes serious penalties for violations that result in injuries or
death. It also establishes rules for attributing criminal liability
to organizations, including corporations, for the acts of their
representatives and also creates a legal duty for all persons
directing work to take "reasonable steps" to ensure the safety of
workers and the public.
Why was Bill C-45 (Section 217.1 in the Criminal Code) created?
Bill C-45, also known as the "Westray Bill", was created as a result of the 1992 Westray coal mining disaster in Nova Scotia where 26 miners were killed after methane gas ignited causing an explosion. Despite serious safety concerns raised by employees, union officials and government inspectors at the time, the company instituted few changes. Eventually, the disaster occurred.
After the accident the police and provincial government failed to secure a conviction against the company or three of its managers. A Royal Commission of Inquiry was established to investigate the disaster. In 1998, the Royal Commission made 74 recommendations. The findings of this commission (in particular recommendation 73) were the movement that led to Bill C-45.
What are the main provisions of Bill C-45 (Section 217.1 in the Criminal Code)?
Bill C-45 (Section 217.1 in the Criminal Code):
Created rules for establishing criminal liability to organizations for the acts of their representatives.
Establishes a legal duty for all persons "directing the work of others" to take reasonable steps to ensure the safety of workers and the public.
Sets out the factors that courts must consider when sentencing an organization.
Provides optional conditions of probation that a court may impose on an organization.
Who does this Criminal Code affect?
This Criminal Code affects all organizations and individuals who direct the work of others, anywhere in Canada. These organizations include federal, provincial and municipal governments, corporations, private companies, charities and non-governmental organizations.
Who is responsible for enforcing this Criminal Code?
Police and crown attorneys enforce Bill C-45. The police and crown are responsible for investigating serious accidents and will determine whether any charges should be laid under the Canadian Criminal Code. The criminal code is a very different set of rules, and should not be confused with "regular" occupational health and safety laws (OH&S) and how they are enforced.
Who is responsible for enforcing occupational health and safety laws?
Depending on your jurisdiction, the Ministry (or Department) of Labour or Workers' Compensation Board (WCB) enforces OH&S laws. Across Canada each province, territory and the federal government are responsible for enforcing their own individual set of occupational health and safety laws. Each jurisdiction employs inspectors who visit workplaces to ensure companies are complying with their OH&S rules. In the unfortunate event of a serious accident, these inspectors conduct an investigation and determine if a charge should be laid under the appropriate section(s) of the OH&S act or regulation. An accused individual or company may then need to appear in court where a fine or other penalty could be imposed if they are convicted. The police are not normally involved in this process.
Does Bill C-45 (Section 217.1 in the Criminal Code) impact on other legislation?
No. Bill C-45 is a separate piece of legislation that applies to the Canadian Criminal Code only. It does not intrude upon, or override, other existing federal, provincial or territorial occupational health and safety statutes and regulations. In the event of a conviction; however, Bill C-45 does require the courts to look at any penalties imposed by other jurisdictions in determining a sentence.
Can a company be charged under a provincial OH&S act and the Criminal Code at the same time?
Not likely. According to the Charter of Rights and Freedoms, a party cannot be charged for the same offence twice -- whether found guilty or acquitted. This rule against multiple convictions for the same offence is known as "double jeopardy".
What types of offences will be targeted?
It is unclear at this time. To date we are only aware of two cases, where individuals were charged under the new provisions in the Criminal Code. In both cases, these charges were later dropped.
Note: At the time the law was being discussed in parliament, the government commented on its intentions for the Bill stating that:
"the criminal law must be reserved for the most serious offences, those that involve grave moral faults... the Government does not intend to use the federal criminal law power to supplant or interfere with the provincial regulatory role in workplace health and safety"
These comments may serve to help guide authorities in their
application of the law, but they do not in of themselves constitute
the law. Once a law is passed, it is up to the police, crown
attorneys and the courts to interpret and apply the law based on the
Criminal Code and previous cases under common law.
Has anyone been charged?
Yes. To date there have only been two cases where individuals were charged though in both cases, the charges were later withdrawn.
On April 19, 2004 near the city of Newmarket, Ontario a worker was killed after the ground around him collapsed while digging a ditch at a residential construction site. The construction site supervisor was charge under section 217.1 of the Criminal Code with one count of criminal negligence causing death. In March 2005 the charges of criminal negligence against the site supervisor were dropped in an apparent plea bargain which saw the supervisor agree to three of eight charges under the Ontario Occupational Health and Safety Act.
In the other case, in June 2002 near Calabogie, Ontario, two people were killed when a gate to a hydroelectric dam was opened, causing a flood. Two supervisors were acquitted of criminal negligence causing death in 2006.
How can I ensure a safe workplace and limit my liability?
Employers can limit their liability and reduce the chances of being charged under the provisions of the Criminal Code by implementing an effective workplace health and safety program.
You will want to know:
what your legal obligations are under occupational health and safety laws and standards,
what hazards exist in your workplace, and
how to effectively reduce or eliminate them.
You will also want to ensure employees are aware of the company's health and safety program, are informed of any risks, and receive appropriate training and protective equipment.
Below are some OSH Answer documents that may help. You may also want to consider hiring a health and safety consultant to assist you with this process.
|OH&S Legislation in Canada - Introduction|
|OH&S Legislation in Canada - Basic Responsibilities|
|OH&S Legislation in Canada - Internal Responsibility System|
|OH&S Legislation in Canada - Due Diligence|
Elements of a Health and Safety Program
|Basic OH&S Program Elements|
|Job Hazard Analysis|
|Inspection Checklists - General Information|
|Guide to Writing an OSH Policy Statement|
For further information, review our other OSH Answers documents
Where can I find a copy of the Criminal Code?
Criminal Code of Canada: http://laws.justice.gc.ca/en/C-46/index.html
Plain Language Guide: Bill C-45 - Amendments To The Criminal Code
Affecting The Criminal Liability Of Organizations: