The death of sawmill worker Lyle Hewer resulted in WorkSafeBC issuing their largest fine to date against any employer, that being Weyerhaeuser at $297,000.00. A machine that converts wood waste into wood chips became jammed. The worker was attempting to clear the blockage and was engulfed by the chips and succumbed to his injuries.
After conducting an investigation, the police recommended criminal charges be laid against Weyerhaeuser pursuant to Bill C-45 (the “Westray Bill”). The Westray Bill added sections 217.1, 22.1 and 22.2 to the Criminal Code. These sections collectively established new legal duties for corporations in the context of workplace health and safety. Corporations must now take reasonable steps to ensure the safety of their employees. These relatively new provisions have only been used a handful of times in Canada.
Despite the above, the Crown rejected the police recommendation of charging Weyerhaeuser for criminal negligence causing death, purportedly on the basis that a reasonable likelihood of conviction did not exist. In light of the Crown’s refusal to prosecute, the United Steelworkers Union (“USW”) took it upon itself to lay a private information for the prosecution of Weyerhaeuser.
This private information process consists of completing a standard form for submission to a Justice, which includes sufficient details of the alleged offence and a list of witnesses. The Justice who receives the information must first determine whether it is compliant. After that is confirmed, the Justice selects a date upon which a process hearing will be conducted. The Attorney General must receive a copy of the private information and reasonable notice of the hearing.
The last step, prior to the prosecution of the matter, is the “Pre-enquete” or the process hearing. This hearing determines whether the process of the court, a summons or warrant, should issue to compel the persons named in the information to attend. The USW Union completed this stage of the Weyerhaeuser prosecution. The hearing was held in camera, meaning that the only parties who can attend are the private informant, witnesses and the Attorney General. Weyerhaeuser itself was not permitted to attend the process hearing.
The process hearing was held on October 26, 2010 and was set over to be heard on February 8, 2011, for the purposes of allowing the USW to produce additional evidence. The testimony and evidence presented at these hearings convinced the judge that the case had merit that warranted a Summons to be issued. As such, Judge Alexander issued process and Weyerhaeuser was summoned to appear before a British Columbia Provincial Court judge. This hearing was scheduled on June 7, 2011.
The power of an individual to commence private prosecution is found at section 504 of the Criminal Code which states that “any one” may lay an information before a Justice. Pursuant to the Supreme Court of Canada, the right to commencing private prosecution is a “citizen’s fundamental and historical right”. Traditionally, private prosecutions have been utilized by the public to fill perceived gaps in the effectiveness of the public prosecutorial system. Although the USW information is one of the first of its kind under the Westray provisions, USW Union Director Stephen Hunt has indicated that unless the Crown starts to actively lay charges under these new provisions, it may not be the last.
Pursuant to sections 579 and 579.01 of the Criminal Code, the Attorney General has the power to intervene and either stay a private prosecution or take conduct of the proceedings at any time following the laying of the information.
On August 24, 2011, the Criminal Justice Branch of the Ministry of Attorney General directed a stay of proceedings on the information alleging the offence of criminal negligence. A comprehensive assessment was performed to determine whether the available evidence was enough for a prima facie case. It was concluded that “deficiencies in addressing the risk of falling objects such as the failure to create more explicit procedures, or the failure to obtain an engineering report to determine the viability of installing alternate doors may have demonstrated negligence… but not a degree to support a charge of criminal negligence”.
The role of a private prosecutor is essentially the same as that of a public prosecutor; they must both exclude any concept of only obtaining a conviction and instead embrace a sense of public duty, fairness and moderation.
A private prosecutor must also ensure that any communications made to the media are undertaken with the underlying intention of protecting the integrity of the criminal trial. Prosecutors should never communicate personal opinions with respect to the proceedings and must ensure they are not creating a sensation through the making of such statements.
It is essential that private prosecutors adhere to an elevated standard of care if permitted to maintain a private prosecution. If a Court finds that a private information has been laid solely for the purpose of drawing public attention to an issue, it may well stay the prosecution as an abuse of process.
The decision by the Justice Branch does not mark a flaw in Westray Bill. However, it does serve as a reminder that information alleging an offence under the Criminal Code should support a prima facie case.