Criminal Code Charges under Bill C-45 Withdrawn

By Yosie Saint-Cyr, Editor at HRinfodesk---Canadian Payroll and Employment Law, April 2005

On March 3, 2005, in Newmarket, Ontario, Criminal Code charges were withdrawn against the construction supervisor who became the first person in the country charged under the Criminal Code’s new Health and Safety criminal liability of organizations and individuals who direct work, Bill C-45. The supervisor had been charged with one count of Occupational Health and Safety (OHS) criminal negligence causing death and eight counts of contravening the Ontario Occupational Health and Safety Act (OHSA) and Regulations. He pleaded guilty to three of the eight charges under OHSA and was fined $50,000 plus a 25% victim surcharge.

By pleading guilty, the supervisor admits to:

* Failing to ensure that a worker did not enter an excavation that was not properly shored or sloped;

* Failing to ensure that a worker was wearing protective head gear; and

* Failing to ensure the worker was wearing protective footwear.

Summary of the Case and the Law

On April 19, 2004, Mr. Fantini was supervising two workers who were repairing a drainage problem in the foundation of a house when the trench they were working in collapsed. Ameth Garrido, a 38-year-old Toronto man, was in the trench when the ground gave way and was trapped by heavy dirt. Mr. Fantini desperately clawed at the ground, trying to rescue his co-worker, but couldn't get to him. By the time emergency workers arrived on the scene, Garrido died. The Ontario Ministry of Labour spent months looking into the incident, and their conclusion led police to believe there was cause to charge the 68-year-old with criminal negligence causing death.

The new provisions in an Act to amend the Criminal Code (criminal liability of organization) which came into force last March, increases the risk of exposure to criminal liability in respect of workplace health and safety above and beyond the existing obligations and liabilities under Occupation Health and Safety legislation. The Act imposes a duty on employers and those with the power to direct how others work to take reasonable steps to ensure the safety of the persons performing the work as well as the public nearby. It clearly defines responsibility for safety in the workplace and allows for prosecution under charges of criminal negligence when those responsibilities are recklessly or willfully disregarded. In offences based on negligence, the court must determine whether an individual acted so carelessly or with such reckless disregard for the safety of others as to deserve criminal punishment.

Penalties under Bill C-45 for individuals include fines and life imprisonment.

Consequences

The charges were withdrawn and the case resolved in favour of the defendant. However, according to Norm Keith, a lawyer at Gowlings and an Occupational Health and Safety specialist, in their OHSLAW NEWSFLASH April 2005, the resolution of the matter did not satisfy many OHS professionals and interested stakeholders because it left a number of important questions unresolved, including:

* Did the York Regional police have a strong case to charge Mr. Fantini in the first place?

* What is the standard of care expected under Bill C-45?

* Did the Ministry of Labour influence the decision of the police to withdraw the charge against Mr. Fantini as part of the plea bargain agreement?

There have not been any other OHS Criminal Code charges laid in Canada. It brings into question how the police and crown attorneys are applying Bill C-45 and if the purpose of Bill C-45 is being met as intended.

By Yosie Saint-Cyr, Editor at HRinfodesk

Published on HRinfodesk---Canadian Payroll and Employment Law

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