The question of whether corporations and their senior executives ought to be criminally prosecuted after tragic workplace accidents continues to ignite controversy in Canada and elsewhere.
Readers will recall that following Canada’s worst industrial accident in Nova Scotia, the report of the Public Inquiry “The Westray Story: A Predictable Path To Disaster” recommended greater corporate accountability for workplace accidents believed to have arisen from corporate criminal negligence. The Westray report decried the absence of a safety ethic, a multitude of illegal practices, an ineffective joint health and safety committee and management attitudes that actively discouraged reporting of safety concerns. Westray led to the Bill C-45 Amendments to the Canadian Criminal Code in 2004, creating new duties to prevent bodily harm, new mechanisms to prosecute and convict corporations criminally, and the potential for limitless fines for corporations if prosecuted and convicted of criminal negligence arising from a workplace tragedy. Expectations were raised somewhat that we might regularly see Criminal Code prosecutions alleging corporate “criminal negligence”. Such prosecutions remain rare.
But several developments in the area of criminal negligence prosecutions for workplace accidents are worth comment as we look back on 2011. First, we are rapidly reaching a point in Canada in which virtually all workplace deaths are considered in some circles as deserving criminal investigation, if not enforcement. After a workplace fatality in Toronto in October, the Ontario Federation of Labour was quoted (Canadian Occupational Health and Safety News, October 17, 2011) as stating publicly and in a letter to local police:“every worker who is killed at work deserves to have their death investigated through the lens of C-45 … their family deserves to know the police have done more than rule out foul play – that they have looked at criminal negligence by the employer as a possible cause”.
In British Columbia, following conclusions by the Crown Prosecutor that no criminal charges would be brought against Weyerhaeuser Company after a 2004 fatality, the United Steelworkers swore a private information (a charge under the Criminal Code) anyway, charging Weyerhaeuser with criminal negligence causing death, and pressed that case in court in 2011.
Secondly however, courts and Crown Prosecutors tempered apparent expectations about when Criminal Code prosecution ought to occur, and will be allowed to proceed. The blunt force of the criminal law is appropriate in some instances, but will not be applied to every worker death, was the message of 2011 in the following decisions:
- In Weyerhaeuser, the above private criminal negligence prosecution resulted in formal “process” or charges being issued to the corporation in BC in March, 2011. But the Crown took over the prosecution, and undertook further assessment of the case. After careful review of available evidence, the Criminal Justice Branch (the Crown in BC) concluded that while deficiencies existed at the facility (a $297,000 administrative monetary penalty was imposed against the corporation in 2007 under BC OHS provisions) available evidence did not show that company management knew that the risk leading to the fatality, entry into a hazardous area, was occurring and failed to address the risk, as required for a Criminal Code prosecution. The Crown stayed the proceedings against Weyerhaeuser;
- In Millennium Crane Rentals Ltd. criminal negligence charges against the corporation, company owner and crane operator commenced by the Crown in Ontario were also withdrawn in March, 2011. The case arose after a crane tipped or backed into an excavation at a City of Sault Ste. Marie landfill in 2009, causing fatal injuries. In withdrawing the charges Crown Prosecutors in Ontario stated their conclusion that there was no reasonable prospect of conviction under the Criminal Code.
Criminal Code and OHS prosecutions continue against a corporation, Metron, and company representatives, as well as a scaffold supplier following an Ontario incident in which four workers were fatally injured when they fell from a swing stage at a construction project at a Toronto, Ontario apartment building December 2009. Trial dates in the criminal proceeding in that matter have been set for 2012.
And outside of Canada, we saw the same pattern of controversy and agitation for criminal prosecution in 2011, despite the imposition of significant corporate penalties. Following the largest mine disaster in 40 years in the US, the Upper Big Branch Mine explosion in West Virginia, in April 2010, the new owner of the mine Alpha Natural Resources Inc. received a fine exceeding $10.8 million under the US Federal Mine Safety and Health Act, and agreed to pay restitution to the families of 29 miners who died in an explosion in the mine, and make other payments and safety investments amounting to approximately $209 million. A criminal investigation into the mine disaster occurred and resolution of the matter reportedly involved agreement involving these penalties and payments in lieu of criminal charges against the former owner. After announcement of the settlement on December 6, 2011, a worker advocate was quoted as saying that a civil settlement was not enough: “Reckless corporate activity that results in the death of dozens of workers must be punished with criminal prosecutions”.