Employers often ask us whether their employees can be forced to give a statement to an Ontario Ministry of Labour inspector. A recent decision shows when inspectors cross the line by forcing statements.
A supervisor, Ms. Lootawan, was charged with three offences under the Ontario Occupational Health and Safety Act, including giving false information to an inspector. The charges arose out of a workplace accident.
The MOL inspector had issued two Orders requiring the supervisor to give a statement. After the first Order, the supervisor wrote the inspector declining to give a statement and invoking her right to silence. The inspector’s form containing the second order warned her that if he refused to give a statement, she could face either imprisonment or a $25,000.00 fine or both. She then went ahead and gave the statement.
The court decided that the second Order to give a statement violated the supervisor’s constitutional right against self-incrimination and her right to be secure against unreasonable search and seizure.
The court noted that the inspector, when he took the statement, already had reasonable and probable grounds to charge the supervisor under the OHSA, which triggered the requirement to caution the supervisor that she could be charged and to invite her to obtain advice from a lawyer. If the lawyer was not immediately available, the supervisor had the right to wait a reasonable amount of time to speak with the lawyer.
As a result, the court ordered that the supervisor’s statement could not be used as evidence at the trial of the OHSA charges against her. The statement was thrown out.
Government safety inspectors do not have an unlimited right to compel employees to give statements. When the inspector has “reasonable and probable grounds” to lay charges against an employee, the employee has the right to refuse to give a statement and the right to speak with a lawyer. Supervisors and employees who are at risk of charges should obtain legal advice to ensure that their rights are protected when the MOL comes calling.
The decision may be read at: http://www.canlii.org/en/on/oncj/doc/2011/2011oncj316/2011oncj316.html