Historical Overview This legislation comes in response to the death of twenty-six miners in the Westray Mine Disaster in Nova Scotia in 1992. Despite strong pressure from the victim’s families and their union, the province was unable to prosecute those in charge of the organization that owned and operated the mine for negligent acts which caused the explosion. Since then, the United Steel Workers have petitioned for greater accountability of corporations in industrial incidents. They succeeded in lobbying for the changes in Bill C-45
The legislation would make organizations criminally liable: As a result of the actions of senior officers who oversee day-to-day operations but who may not be directors or executives; When officers with executive or operational authority intentionally commit, or direct employees to commit crimes to benefit the organization; When officers with executive or operational authority become aware of offences being committed by other employees but take no action to stop them; and When the actions of those with authority and other employees, taken as a whole, demonstrate a lack of care that constitutes criminal negligence.
Investigations Regarding Workplace Health and Safety The Ministry of Labour currently has the lead responsibility for investigations respecting workplace health and safety in Ontario Ministry of Labour Inspectors investigate workplace fatalities and critical injuries to ensure compliance with the Occupational Health and Safety Act to determine if provincial charges are warranted Now….it will be important for organizations to note that fact scenarios which previously resulted in ONLY Occupational Health And Safety Act charges being laid, may now attract criminal liability as a result of the amendments under Bill C-45
An Act to Amend the Criminal Code (Criminal Liability of Organizations) received Royal Assent on November 7, 2003 and is in force as of March 31, 2004 Amends the Criminal Code to: establish rules for attributing to organizations, including corporations, criminal liability for the acts of their representatives; establishes a legal duty for all persons directing work to take reasonable steps to ensure the safety of workers and the public; sets out factors for courts to consider when sentencing an organization; and provides for optional conditions of probation that a court may impose on an organization. The Bill modernizes the law on the criminal liability of organizations to reflect the increasing complexity of today’s corporate structures. In addition, the Bill will help ensure organizations are held accountable when they commit criminal offences.
Current Canadian Law Criminal Liability Generally Criminal Liability of Organizations Criminal Liability of Directors, officers, and employees
Changing the Law Under Bill C-45 The provisions of Bill C-45 are a compilation of the existing rules with new reforms, which will modernize the law to reflect the increasing complexity of corporate structures. Bill C-45 deals only with the criminal responsibility of the organization and makes no change in the current law dealing with the personal liability of directors, officers, and employees. Directors, officers, and employees, like anyone else, are liable for all that they personally commit, whatever the context.
Why Does C-45 Refer to an Organization Rather than a Corporation? Defining the term “person” “ corporation” “ bodies” “criminal organization”
Why Does C-45 Refer to an Organization Rather than a Corporation? Re-Defined under Bill C-45 “organization” “ a public body, a body corporate, a society, a company” and “a firm, a partnership, a trade union or an association created for a common purpose”
Who are the “Directing Minds” of the Organization? Senior officer…includes everyone who has an important role in: setting policy (which is the current Canadian Law); or managing an important part of the organization’s activities (this part is new)
What does it Mean when an Organization is a Party to an Offence? Reflects both aspects found in Section 21 and 22 of the Criminal Code regarding “party to an offence”: Section 21 person actually commits the offence or aids another person to commit Section 22 person who counsels another person is party to the offence Bill C-45 reflects both sections of the code which provides a broader definition that will apply to more activities than only when the organization “commits the offence”
For Whose Physical Acts is an Organization Responsible? To obtain a conviction currently: the Crown must prove both the commission of the prohibited act, and, the requisite guilty mental state Under Bill C-45: the Bill differentiates between crimes requiring the Crown to prove negligence and crimes requiring the Crown to prove knowledge or intent the Bill also provides separate rules for the prosecution of each type so Crowns have much more latitude in prosecuting organizational crimes
How does an Organization Become a Party to a Crime of Negligence? In offences based on negligence, the court must decide whether an individual acted so carelessly or with reckless disregard for the safety of others as to deserve criminal punishment In order to be found guilty it would have to be proved that employees committed the act and that a senior official should have taken reasonable steps to prevent them from doing so With respect to the physical element of the crime, Bill C-45 provides that an organizationis responsible for the negligent acts or omissions of it’s representative The Bill provides that the conduct of two or more representatives can be combined to constitute an offence. Bill C-45 would require the senior officer (or officers) have departed markedly from the standard of care that could be expected.
How does an Organization Become a Party to an Offence Where Intent or Knowledge has to be Proven? Bill C-45 sets out three ways an organization can commit a crime requiring an awareness of a fact or specified intent. In all cases the focus is on a senior officer who must intend to benefit the organization to some degree. Three ways to commit the crime are: • The senior officer actually commits the crime • The senior officer has the intent, but subordinates carry out • the actual physical act • The senior officer knows employees are going to commit • a crime to benefit the organization and does nothing to • stop them
Sentencing an Organization Corporations cannot go to jail so the Criminal Code provides for fines as follows: Summary Conviction: less serious offences that are punishable for individuals by up to six months in jail and/or a $2000 fine. The code provides for a fine up to $25,000 for organizations BILL C-45 would increase the maximum fine on an organization for a summary offence to $100,000. For more serious indictable offences the Code already provides no limit on the fine that could be levied on an organization
How are Fines Set? MORAL BLAMEWORTHINESS PUBLIC INTEREST PROSPECTS OF REHABILITATION
What is Corporate Probation? Courts often place offenders on probation…often with conditions. there are no probation activities available to the courts for corporate offenders. Bill C-45 proposes to put in the Code a specific section dealing with probation orders for organizations. The conditions are: The new section also sets out orders to prevent an organization from repeating the behaviour in the future. The court can order and organization to: There will be no need for the courts to oversee changes in corporate policy or procedure where there is already a regulatory body in place. For example…if safety practices have to be reviewed there is a provincial Health and Safety department with trained inspectors….only where this does not exist will the courts oversee required corporate changes.
For Information or Questions DEPARTMENT OF JUSTICE: www.canada.justice.gc.ca 613-957-4222 To View the latest on-line version of the bill go to: www.parl.gc.ca