Norm Keith, B.A., J.D., LL.M., CRSP
Reducing workplace accidents, injury, and death is the purpose of Canadian Occupational Health and Safety ("OHS") laws in every province, federally under the CanadaLabour Code, and the Bill C-45 amendments to the Criminal Code ("Code"). In recent years, enforcement of OHS laws has taken on more of a criminal appearance. OHS Regulators have increased pressure to punish employers and their representatives when accidents occur in the workplace. More organizations, officers and directors, managers, and supervisors being charged with criminal or quasi-criminal offences. For example Joel Swartz, the President of Metron Construction was personnaly found guilty of four penal infractions while his company Metron was found guilty under the Code, even if Mr. Swartz was not present at the place of work at the moment of the accident. Karl-Heinz Lilgert was jailed for 3 years when he was convicted of OHS Criminal Negligence.
From a policy perspective it needs to be asked if the criminalization of OHS laws, and increased risk of jail for individuals charged, is really improving Occupational Health and Safety compliance? Or to put it another way, will jail, or the threat of jail, really help reduce the number of workplace accidents, injuries, and fatalities in Canadian workplaces?
Learning from crack down on crime
The Harper Government's "crack down" on violent crime, with more mandatory minimum jail terms and longer jail terms, appears to be having a positive impact on the level of crime in Canada. The five-year trend for virtually all types of criminal activity in Canada is on the decline. By taking a "tough on crime" approach, together with community policing initiatives, the federal government has reduced crime, decreased the number of victims, and made Canadian society safer. Can a similar approach reduce workplace accidents?
OHS Regulators are using stricter laws and more aggressive enforcement across Canada. However, using more criminal enforcement strategies, has not materially seen an improvement in workplace health and safety over the last 5 years. The 5 year average for workplace accidents in Canada has remained relatively static. In 2012, the Association of Workers Compensation Boards of Canada reported that there were 244,365 workplace accidents that resulted in loss time claims with workers compensation boards across Canada. This is a slight decrease from 2011, but not a material change over the last 5 years. The number of workplace fatalities across Canada has not materially varied over the last 5 years. In 2012 there were 977 fatalities that were reported to be work related. This was slightly increased in the number of workplace fatalities reported in 2011.
Do these workplace injury and fatality statistics reveal the need for even greater criminal enforcement of OHS laws. Do we need more individuals going to jail under OHS laws, or do the statistics indicate a lack of effectiveness of the criminalization of OHS law enforcement? What is the best approach to achieve the purpose of OHS laws, to reduce workplace accidents, injuries and death.
The cost for workplace accidents have been well documented in Canada, and internationally. Those costs include human costs, economic costs, and legal costs. They are in the billions of dollars every year. There is clearly a public interest in preventing workplace accidents and enhancing workplace health and safety. Regulators have strong moral and political authority, to enforce laws with significant emphasis on workplace accident prevention. Further, lack of accident prevention has resulted in terrible, national disasters, such as the Westray Mine disaster in May 1992, and Lac Megantic in 2013.
Why criminals go to jail
There is little need to extensively review the mandate of improving workplace health and safety, since approximately 1,000 workers die every year in Canada from workplace traumatic incidents or health or exposures. But will jail be a deterrent to workplace accidents, injury and death? The most critical OHS legal omission is not in criminal enforcement, the lack of consistency in OHS legal standards across Canada.
Jail is often determined to be the appropriate penalty for individuals who commit crimes under the Code. Sentencing provisions of the Code have been extensively reviewed and refined by a number of successive federal governments. The key principles that guide when and why jail should be used, including the following:
- to denounce unlawful conduct;
- to deter the offender and other persons from committing offences;
- to separate offenders from society, when necessary;
- to assist in rehabilitating offenders;
- to provide reparation for harm done to victims or to the community; and
- to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.
The Code has another guiding principle for when courts incarcerate individuals who have committed crimes; the Code states, "a sentence must be proportionate to the gravity of the offence and the degree of the responsibility of the offender." Public safety from dangerous individuals is a strong reason to put away and keep them in jail.
Do the same principles of incarcerating individuals convicted of crimes equally apply to OHS laws in Canada? This is the heart of the question being addressed by OHS Regulators, politicians and all workplace stakeholders.
Why filling the jails will not prevent accidents
How can OHS Regulators benefit from the reasons for the declining crime rate. Some OHS regulators argue that, harsher penalties and more individuals going to jail is necessary. It is also suggested that jailing individuals who are responsible for workplace accidental injuries and death, and have committed OHS offences, will be effective at reducing workplace accidents. However, it is the writer's view that this will not logically likely follow. This position is supported by three specific arguments.
- OHS statutes are strict liability, quasi-criminal, regulatory offences; the procedure in prosecuting such an offence is essentially criminal but, the presumptive penalties associated with a conviction are quite different; courts have consistently held that the presumptive penalty of a conviction of an OHS offence for an individual is a fine, not jail; jail is not presumptively an appropriate penalty for a guilty individual, be they a supervisor, manager, or officer and director of the corporation.
- Although criminal charges presumptively are a moral affront to society and may result in an individual getting a jail term, OHS statutes do not have that same social stigma; to peruse a jail term, OHS criminal negligence charges necessary; however, there have been very few prosecutions under the Bill C-45 amendments to the Code. Only 10 cases in the first 10 years. Therefore, unless the police, and Crown Attorneys increase their attention to workplace accidents or threat of jail is just not serious under the Criminal Code.
- There is a surprising lack of empirical evidence to suggest that jail terms will result in increased attention to health and safety accident prevention and reduction in workplace injuries and fatalities; there is empirical evidence with respect to the effectiveness of monetary incentives demonstrated by workers compensation experience rating systems, there is empirical evidence of improved workplace safety through training prevention programs; but there is no serious study that the criminalization of OHS laws, and the imposition of jail terms on directors, officers, managers, and supervisors, materially effects behaviour such that accidents, injuries, and death in the workplace are reduced.
The threat of jail has unintended consequences
The degree to which policy makers, politicians, and organized labour have called for the criminalization of health and safety law offences and jail for offenders, is more of a knee-jerk reaction than good public policy. Jailing OHS offenders may also have serious unintended consequences. Prosecution of individuals enhances the rights of individuals, charged with OHS crimes. Our legal system provides greater procedural protections to criminal defendants. Criminal defences to OHS criminal charges, including various rights under the (Charter of Rights and Freedoms) (the "Charter").
There is a well-known practice that the Ministry of Labour inspectors in Ontario purport to use "inspection" powers, under s. 54 of the Act, during critical injury and fatality investigations. This practice, however dubious in view of the Supreme Court of Canada's decision in Jarvis, will be challenged if individuals are more likely to be put in jail for an OHS offence. The full rights of an individual being investigated, charged, and taken to trial that exist under the Charter are beyond the scope of this article. However, suffice it to say, that the more aggressive and serious the penalties are for OHS offences, the more likely that the rights and defences of an accused will be pursued vigorously.
This takes time, money, court administrative resources, costs and the opportunity costs to the judicial system; all paid by Canadian taxpayer.
The question then becomes if imposing jail terms on individuals to attempt to reduce workplace accidents is fundamentally flawed, without proof of meaningful reduction in workplace accidents, but increased costs of the administration of justice to the taxpayer, why do governments persist in talking about, and threatening greater number of prosecutions and even jail terms for individuals?
Towards a better model of OHS prevention and enforcement
Ultimately the question that all public policy, political, union and management representatives must consider is, what is the most effective way to reduce workplace accidents, injury and deaths. One extreme suggestion to just ban all high risk work activities. Using jail as a criminal deterrent looks too much like revenge and not enough like prevention. Knee-jerk after the fact reaction of criminalizing OHS penalties is not an effective or meaningful way to address the problem.
There are a number of tried and true legal enforcement methodologies that have been used, in Canada and around the world, to effectively motivate, encourage, and enforce OHS laws. Jail, in my opinion, is not one of them.
In summary, it is the author's contention that jail terms, and increased criminalization of OHS offences, will not materially affect or reduce workplace actions, injuries and deaths. Increased criminalization of OHS offences will result in more aggressive defences, invocation of rights of individuals under the Charter, and increased delays, costs, and strain on administration of justice. There are effective ways, beyond jail terms, to improve health and safety. These should be considered by OHS regulators, more carefully than they have been in the past, to improve health and safety in the workplace.