Corporate Criminal Liability for Workplace Accidents: Still “No Soul to Damn; No Body to Kick”?
There is a mounting trend to charge organizations and their senior executives with criminal offences when workplace accidents occur. In Canada, the federal government enacted Bill C-45, An Act To Amend The Criminal Code (Criminal Liability Of Organizations) to permit organizations to be more readily prosecuted for crimes like criminal negligence. There are a number of recent examples. In R. c. Scrocca, a landscape contractor was convicted of criminal negligence and sentenced to a conditional sentence of imprisonment after the brakes on his backhoe failed and the backhoe hit and killed an employee. In Ontario, Millennium Crane and two individuals were charged after a crane fell into a trench and fatally injured an employee. Although, those charges were subsequently withdrawn because there was no reasonable prospect of conviction.
Canada is not alone in criminalizing workplace accidents. Australia, the Netherlands, Germany, Italy, Sweden, and the United Kingdom, among other countries, have laws that allow criminal proceedings to be commenced following a workplace accident. In the United Kingdom, for example, Parliament enacted the Corporate Manslaughter and Corporate Homicide Act 2007, which created a new offence called corporate manslaughter in England, Wales and Ireland, and corporate homicide in Scotland. Cotswold Geotechnical Holdings Inc., the first corporation to be charged with corporate manslaughter, was convicted and fined £385,000 after a junior geologist was smothered and killed in a trench collapse. Health and safety charges against Cotswold were withdrawn and criminal and health and safety charges against the managing director of Cotswold were withdrawn because of his poor health.
While the risk of criminal prosecution in Canada remains small, the police will lay criminal charges in certain circumstances and employers should take steps to minimize the risks of a criminal prosecution following a workplace accident and to mitigate the consequence of any criminal charges that are laid. Employers should:
- Ensure that supervisors, managers, officers and directors receive a reasonable amount of training focusing on Occupational Health and Safety Act, Criminal Code, and other regulatory requirements
- Consider ongoing retraining and implementation mechanisms to communicate critical developments in occupational health and safety law and to advise of any compliance issues within the organization, including failures or near-failures
- Provide senior officers with information on corporate compliance and have orders for remedial or corrective action issued in writing by the manager or senior officer
- Document and preserve notes, directives or meeting minutes regarding follow-up on health and safety concerns brought to the attention of senior officers
- Undertake a review to ensure that the organization can establish due diligence to the high standards established by courts in occupational health and safety prosecutions. The existence of due diligence should prevent a finding of “wanton or reckless” disregard required to constitute criminal negligence, and
- Develop an accident response plan to mitigate the consequences of workplace accidents, ensure that legal obligations are met, and balance obligations to co-operate with regulatory officials with substantive legal rights that may arise during the investigation