The Canadian Labour Congress (“CLC”), an association of unions, has published a guide for police use when investigating corporate criminal negligence in cases of serious workplace injuries and fatalities. The Guide is entitled, Death & Injury at Work: A Criminal Code Offence. In a press statement issued in May 2012, the President of the CLC indicated that the CLC’s motivation to produce the guide arose from an increasing sense that police are too rarely moving to enforce the corporate criminal negligence laws introduced into the Criminal Code in 2004 through Bill C-45.
The Bill C-45 amendments introduced a legal duty for all persons “directing the work of others” to take reasonable steps to ensure the safety of workers and the public – in effect, it made certain safety breaches criminal issues. Since 2004, Bill C-45 charges have been laid in only six cases. It would seem that the CLC wants to see more Bill C-45 charges and, certainly, some Canadian unions have been actively encouraging police to charge employers criminally after serious workplace accidents.
Of perhaps the greatest interest to employers is the section of the guide that sets out the CLC’s 10 recommendations for police during an investigation into the possibility of Bill C-45 charges. A brief summary of these recommendations follows:
1. Take control of the scene. The guide emphasizes the need to avoid key evidence being lost or tampered with by ensuring that a workplace accident is treated as any other crime scene.
2. Call for back-up. The guide suggests that the first police officer on the scene should notify the Ministry of Labour to send an inspector, if one is not already en route.
3. Understand the corporate structure. The guide recommends that police understand an organization’s hierarchy by clearly identifying people by name, title and function.
4. Identify the victims and relevant players. The guide recommends that police specifically identify the members of the joint health and safety committee and company health and safety staff that may have relevant evidence and information.
5. Identify relevant evidence. The guide notes that police must understand what was being done and why it was being done at the time of the accident and encourages police to track down relevant internal correspondence, memos, emails, records of meetings, policies and procedures in order to understand what was known by the organization, the decisions that were made and by whom. The guide also notes that some of this information may be kept and stored off-site.
6. Nature of relevant evidence. The guide notes some of the unique documents that police should request in the case of workplace injuries or deaths such as site plans, work plans, health and safety programs and minutes of joint health and safety committee meetings. The guide also suggests that the police quickly identify and speak with the organization’s manager in charge of health and safety.
7. Experts will assist after identifying relevant evidence. The guide encourages police to contact and work with experts once they have gathered evidence, as those experts may be able to establish a link not identified by the police – i.e. an expert opinion as to why a machine malfunctioned.
8. Fundamental questions. The guide encourages police to ask themselves questions when investigating individuals acting on behalf of an organization such as, “what did they know?”, “when did they know it?, “what should they have known?”, “what was done about it?”
9. No due diligence. The guide states that police must assess the degree of corporate failure to address the hazard that resulted in the harm.
10. Arrest/criminal charges. The guide emphasizes that unlike traditional crimes, charges or arrests should be made only after a very thorough investigation has been completed and access to off-site evidence is in the hands of police.
One is left to wonder whether the police will be interested in taking advice from a union organization with respect to criminal investigations. However, the recommendations contained within the CLC’s guide, at the least, provide employers with a sense of when unions will push for criminal safety charges against employers.
To review the full guide, please click here: http://www.canadianlabour.ca/sites/default/files/death-and-injury-at-work-en.pdf
To review the press statement, please click here: : http://www.canadianlabour.ca/national/news/clc-releases-guide-investigating-corporate-negligence-workplace-may-9-20th-anniversary