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Can corporations commit murder, or manslaughter?

In 1992, 26 coal miners were killed when the Westray Mine in Nova Scotia exploded.  A government appointed inquiry into the explosion concluded that the disaster was avoidable and that the employer’s representatives were aware that the mine could explode, yet continued to send workers down and failed to take the necessary remedial steps.  However, criminal charges filed against the corporation and the senior officials were dropped when the Crown concluded it could not obtain a prosecution.

These events led to a focus in Canada on the inadequacy of our criminal law when it comes to killings taking place at work that are due to the failure of management to take steps to avoid obvious risks.  The main problem, from a legal perspective, was that the existing test for finding organizations criminally liable was almost impossible to prove.  The leading case was Canadian Dredge & Dock. That test required the Crown to prove that a single person, who was a ‘directing mind’ (a senior official responsible for the management of the business) both had knowledge of the illegal act that causes the death and possessed the  ’guilty mind’ or intent (the mens rea) necessary for a criminal offense.  It was virtually impossible for the Crown to prove those conditions were satisfied.  As a result, corporations were rarely found guilty of criminal offenses.

In the wake of Westray, both the Federal Conservative party (then in opposition) and the Federal N.D.P. introduced Private Members’ Bills calling on the Liberal government to amend the Criminal Code to make it easier to convict corporations of criminal offenses.  The Bills were debated in Parliament and in Committee meetings (yours truly was retained by  the United Steelworkers to draft a research paper and appear as an expert witness in the Committee meetings.  My testimony can be read here).  Eventually, Bill C-45 was passed.  A main feature is that it changed the legal test for finding corporations criminal responsible by expanding the ways in which the act and intent can be attributed to a corporation.  For example, it created a legal duty for individuals in organizations to take “reasonable steps to prevent bodily harm to workers.” This quick and dirty flowchart of westray bill explains how that works.

In last month’s Canadian Lawyer, there is a story about whether C-45 has been an effective deterrent and led to proper punishment.  The story discusses the first case in which a company was prosecuted under the new law (R. v. Transpavé Inc.).  A worker was killed in that case when a safety device on a machine was deliberately disabled, and although it was not proven who disabled it, the evidence  was clear that management knew people disabled the safety in the past and that senior management people had disabled it themselves in the past. The company was charged under the new law and pleaded guilty.  The Court ordered a $110,000 fine.

The debate in legal circles is whether a fine is an appropriate penalty.  Fines were already possible under occupational health and safety regulation, so did the criminal charge make any difference?  One problem with fines is that, if they are too small, they have little deterrent effect, but if they are too big, they may cause employers to go bankrupt or to layoff workers.  Should senior officials of the company have been imprisoned?  That is possible under this law, but no one yet has been sent to jail.  

 

 

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One Response to Can corporations commit murder, or manslaughter?

  1. brian Fitzpatrick Reply

    July 6, 2017 at 2:16 am

    I strongly believe that senior officials as well as any supervisor or even other employees should be imprisoned if they have materially contributed to a serious worksite injury or death due to criminal negligence.
    Kill a worker, go to jail.
    This has and is being championed by the United Steelworkers Union.

    As you pointed out, fines don’t do much if anything except allow criminally negligent employers to carry on with little or no impact on worker safety.
    Your concerns surrounding stiff fines which could bring about bankruptcy to criminally negligent employers are immaterial to the safety of workers.
    Bankruptcy will get employer’s attention if need be.
    Other employers will step in.
    We are talking about people’s lives and well being.

    Are you aware that the RCMP, for the past approx. two years have become more actively engaged in investigations of serious injury or death on a worksite?
    This action has been put into policy. It is now high focus. This is now codified and best of all, non-negotiable.

    The Worker’s Compensation Board is no longer is able to botch investigations, hide or destroy evidence or get away with murder as they have for about 100 years.
    The WCB are no longer able to effectively immunize criminally negligent employers from legal consequences.
    The WCB are not permitted or allowed to enter onto a worksite which is being investigated for criminal negligence by the police?

    My 24 year old son, on February 22, 2009 was killed by a criminally negligent, indifferent and depraved employer.
    The WCB ignored safety regulations and allowed the employer to flaunt the rules.
    My son paid the price.
    The WCB made a deliberately botched investigation, which not so incredibly, learned nothing.

    After 3 attempts over a period of 5 years I was able to have the RCMP look at the evidence I had. The WCB, as required, refused to inform the police that a wrongful death may have occurred.

    The RCMP have been investigating my son’s death for approx. 3 years.
    Shortly thereafter the RCMP informed me that my efforts for my son had caused them to instigate worksite investigations on a continuing basis.
    This action relieved the WCB of worksite investigations involving serious or death. Period. Non-Negotiable.

    The RCMP have presented facts to Crown Counsel. Homicide and obstruction of justice charges, hiding evidence, destroying evidence and using lies to sway the outcome of the WCB investigation are being contemplated.

    The game has changed. The WCB can no longer protect criminally negligent employers from criminal charges.
    Kill a worker, go to jail.

    Charges are now able to be laid. Prosecutors are now able to present a case due to proper police investigations as required under our Charter.

    Professor Steven Bittle, Osgoode Hall is up to speed on these matters and has been of great support to the USW and myself.

    Brian Fitzpatrick

    Brian Fitzpatrick

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