Bill C-45 Alert:

Sentence Handed Down in First OHS Criminal Negligence Conviction

By Norm Keith, B.A., LL.B., CRSP and Graham Walsh, B.A., LL.B.

On Monday, March 17, 2008, the court formally accepted the joint recommendation of the Crown and the Defence and fined Transpavé $100,000. Pursuant to section 737 of the Criminal Code, Transpavé will also have to pay an additional victim surcharge of $10,000 which will go towards provincial programs designed to assist victims of criminal and regulatory offences.

On December 7, 2007, Transpavé Inc. ("Transpavé"), a Québec manufacturer, became the first organization to be convicted of the Occupational Health and Safety ("OHS") Criminal Negligence causing death. In October 2005, a 23 year old employee of Transpavé was fatally injured after moving into an area where a machine was apparently jammed. The equipment was equipped with a light-beam or curtain guarding system that was intended to stop the operation of the machine if the lightbeam/curtain was broken. However, the guarding system failed and the worker was fatally injured.

The Criminal Code was amended on March 31, 2004, to establish a new positive duty on individuals and organizations to take "reasonable steps to prevent bodily harm" to workers, the public, and others involved in workplace activity. Bill C-45 amendments to the Criminal Code also significantly change the threshold for establishing guilt for an organization, including a corporation.

In the Transpavé case, the Québec Commission de la Santé et de la Sécurité Travail ("CSST"), investigated the workplace fatality. The CSST concluded that the light-beam/curtain system was disabled at the time that the accident occurred. The police became involved after the fatality and laid the Criminal Negligence causing death charges. The plea of guilty by Transpavé Inc, on December 7, 2007, was in contrast to their initial public reaction to the charges.

Transpavé publically stated their intention to defend the charge at trial. However, the entering of a plea of guilty, pursuant to a plea bargain agreement, resulted in the first conviction under the Bill C-45 amendments of the Criminal Code for an organization in Canada.

The sentencing phase of the Transpavé prosecution took place on February 26, 2008. On that date, a hearing was held in order to allow counsel for both the Crown and Defence to make arguments before the court regarding the level of the fine that should be imposed.

Since the Criminal Code does not provide for a maximum fine following an OHS criminal negligence conviction, there was some uncertainty going into the hearing as to the level of fine that would be imposed however, on February 26th, counsel for both sides agreed to a joint submission for a fine of $100,000. A joint submission is a common practice in criminal and regulatory prosecutions in which counsel for the Crown and Defence agree upon an appropriate penalty in advance of the sentencing hearing and present their argument jointly to the court.

The small amount of the proposed fine was likely based on the fact that Transpavé is a relatively small company with less than 100 workers and the fact that the company invested more than $500,000 in safety improvements to the workplace in order to avoid similar accidents in the future. These are both factors that are relevant considerations in the determination of an appropriate sentence and larger companies convicted of regulatory or criminal offences typically receive larger fines.

It is important to note that the court is not obliged to accept a penalty suggested through a joint settlement and may impose a different sentence. Typically though, the court will follow a joint submission unless the recommended sentence is contrary to the public interest and would bring the administration of justice into disrepute.

After hearing the joint submission on February 26, the court withheld its decision regarding sentencing and instead, adjourned the matter to March 17 at which time the sentence was formally handed down.

The sentence handed down against Transpavé is an important reminder to senior executives and their organizations of the legal risk when workplace incidents occur. To reduce risk, organizations need to ensure the following:

1. Establish and implement an effective occupational health and safety management system, and audit it regularly;
   
   
2. Prevent accidents and injuries since individuals and organizations cannot be charged under the Bill C-45 amendments unless there is "bodily harm"; and
   
   
3. Ensure compliance with applicable OHS statutes and regulations by an effective OHS management system.

For a detailed analysis of Bill C-45, and its compliance requirements, please see my book Workplace Health and Safety Crimes (Lexis Nexis, 2004).

Norm Keith, B.A., LL.B., CRSP leads the firm's national OHS practice group and is the author of Canadian Health and Safety Law, Canadian Emergency Management Response Manual, Human Resources Guide to Preventing Workplace Violence, and Workplace Health and Safety Crimes (Bill C-45). Additional information on Gowlings' national OHS practice is available at www.gowlings.com/ohslaw. Mr. Keith may be contacted at 1-866-862-5787 ext. 85699 or at norm.keith@gowlings.com.

Graham Walsh, B.A., LL.B., is an Associate with Gowlings’ national OHS practice. Mr. Walsh may be contacted at 1-866-862-5787 ext. 84608 or at graham.walsh@gowlings.com.

Additional information on Gowlings' national OHS practice is available at www.gowlings.com/ohslaw.