Get All TheFacts to Help Avoid Criminal Charges
The Criminal Code of Canada,as well as provincial laws, makes employers and their representatives criminally liable for neglect for certain safety and health violations.
The federal law covers all organizations, from corporations to partnerships, and their representatives, which includes directors, partners, employees, members, agents and senior officers.
Provincial occupational health and safety legislation imposes significant penalties on individuals and organizations convicted of negligence related to workplace safety.
For example, under the Ontario Occupational Health and Safety Act, individuals convicted of an offence may be fined up to $25,000.00 and/or face up to twelve months’ imprisonment on each count. Organizations may be fined as much as $500,000.00 on each count. Fines of more than $1,000.00 are also subject to the 25 per cent Victim Fine Surcharge.
Of course organizations cannot be sent to prison, so the federalCriminal Codeincreases the maximum fine for a summary conviction, a less serious offence, from $25,000.00 to $100,000.00. There is currently no set limit on fines for indictble or more serious offences. Individuals who are convicted of indictable offences under theCriminal Codecould face lengthy terms of imprisonment – up to life imprisonment where an individual is convicted of criminal negligence causing death. In addition to fines, theCriminal Codeallows probation conditions for organizations, such as restitution to a person for any loss or damage suffered, and requires the organization to provide information to the general public about the offence, including the sentence and any measures taken to reduce the likelihood of committing further offences.
Under theCriminal Code, individuals and organizations are liable for criminal prosecution if they do anything –or
fail to do anything— that it is within their duties and responsibilities in a way that shows “wanton or reckless disregard for the lives or safety of others.”
In other words, individuals who direct or manage the work of others must take every reasonable precaution to protect those employees from workplace danger, or be open to criminal prosecution.
For example, a factory employee who turned off three separate safety systems could be prosecuted for causing death by criminal negligence if employees were killed as a result of an accident that the safety systems would have prevented.
On the other hand, if three employees each turned off one of the safety systems, each thinking that it was not a problem because the other two systems would still be in place, they would probably not be subject to criminal prosecution because each one alone might not have shown reckless disregard for the lives of other employees.
Nevertheless, although the individual employees might escape prosecution, the employer may not because, in effect, it was the organization, through those three employees, that turned off the three systems.
To show intent, the law requires that the senior officer or officers responsible must have departed markedly from the expected standard of care. The organization might be convicted if, for example, the director of safety systems failed to give a negligent
employee basic training necessary to perform the job.
While accidents are inevitable in any business, to help protect your organization and its representatives from prosecution it’s essential to keep accurate records and investigate each injury. Proper attention to these details will uncover information you can use to make your workplace safer in the future.
Accidents seldom have a single cause. Use careful thought and sound judgment when investigating. And get all the details. Here are the elements of a successful inquiry:
Question the injured employee and all witnesses as soon as possible. Ask witnesses to draw sketches if they can’t adequately describe the scene. Keep asking questions. Don’t settle for simple responses such as “employee negligence caused it” or “it was faulty equipment.”
Trynot to ask “Why?” It’s better to ask “What?” because it is more objective and doesn’t imply fault. For example, “What were you doing at the time of the accident?” rather than “Why did this happen?” Or “What caused the equipment to fail?” rather than “Why did your equipment fail?”
Make sure you keep all records required under federal and provincial laws and regulations.
Involveother employees in the inquiry. It makes them feel like they’re a part of the effort to make your workplace safe. Conduct confidential interviews and take suggestions seriously. Use employee awareness, acceptance and participation to your advantage. Your ultimate goal is to eliminate accidents, not employees.
After you compile the details and witnesses statements, use them. Compare the findings with other accidents. Look for patterns such as:
Environment: Are the accidents occurring in the same department?
Time: Are the accidents occurring at a certain time?
Type of Injury: Do the accidents involve the same type of injury?
Equipment: Is it always an equipment failure or is the equipment mishandled?
Staff: Is the same employee having the accidents or are different employees involved? If accidents are random, are the employees getting proper training?
A Linguistic Perspective
If your company employs immigrants or others who speak different languages, it’s possible that some accidents happen because of a communication failure. If you suspect a language problem, ask the following: