Bill C-45: Impact on Unions
Bill C-45, the so-called “Westray Bill” received Royal Assent on November 7, 2003. The Bill was conceived in response to the Westray Mine disaster in 1992. Neither the mining company nor any of its officers was charged in the deaths of 26 miners, despite extensive evidence of corporate negligence. Until now, a corporation could only be
found guilty of a criminal offence where the offence was committed by the “directing mind” of the corporation (i.e. someone with authority to set corporate policy). Bill C-45 changes this situation to make it possible to hold corporations criminally liable for the negligent actions of lower-level managers and supervisors. It amends the Criminal Code to:
(a) establish a legal duty for all persons directing work to take reasonable steps to ensure the safety of workers and the public;
(b) establish rules for attributing to organizations criminal liability for the acts of their representatives;
(c) set out factors for courts to consider when sentencing an organization; and
(d) provide optional conditions of probation that a court may impose on an organization.
Bill C-45 creates a legal duty applicable to persons having authority to direct the work of others to take reasonable steps to prevent bodily harm to the person(s) performing the work or to others. Failing to live up to this duty may attract a charge of criminal negligence.
There is now a greater possibility of criminal liability for a manager who fails to take action to keep a workplace safe. It will also be somewhat easier to hold a company criminally responsible for the acts of its managers.
Bill C-45 amends the definition of “every one”, “person”, “owner” in the Code to include “Her Majesty and an organization”. “Organization” replaces “public bodies, bodies corporate, societies, companies and inhabitants of counties, parishes, municipalities or other districts in relation to the acts and things that they are
capable of doing and owning respectively” in the definition. Every offence in the Code that uses one of these three expressions applies to the Crown and to organizations as well as to individuals (Criminal Code offences often begin with the phrase “every one commits an offence who…”).
“Organization” is defined as a public body, a body corporate, society, company, firm, partnership, trade union, municipality, or an association of persons created for a common purpose. The express inclusion of “trade union” in the Code does not represent a change in the status of unions under the Code. Unions can be held
criminally liable under the existing language as falling within the term “societies”.
The terms “representative” and “senior officer”, relating to organizations, are also added to the Code. “Representative” in respect of an organization means “a director, partner, employee, member, agent or contractor of the organization”. “Senior officer” means “a representative who plays an important role in the establishment
of an organization’s policies or is responsible for managing an important aspect of an organization’s activities”.
Bill C-45 adds two general provisions to the Code that make an organization a party to an offence committed by a representative or a senior officer. Where the offence requires the prosecution to prove mere negligence, an organization will be a party to the offence where one or more of its representatives, acting
within the scope of their authority, is a party to the offence or where the senior officer(s) responsible for the aspect of the organization’s activities that is relevant to the offence departs markedly from the standard of care that, in the circumstances could reasonably be expected to prevent a representative of the organization from being a party to
the offence.
Where the offence requires the prosecution to prove fault other than negligence, an organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers:
(a) acting within the scope of his or her authority, is a party to the offence;
(b) acting within the scope of his or her authority and having the mental state required to be a party to the offence, directs the work of other representatives of the organization so that they do the act or make the omission specified in the offence; or
(c) knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence.
The addition of these provisions to the Code means that an employer may be tried for an offence committed by an employee. However, the representative or officer must have been acting within the scope of their authority when the offence was committed.
The “false pretence or false statement” provision of the Code is amended so that the term “organization” replaces the more limited phrase “person, firm or corporation”. The provision makes it an offence for a person (including an organization) to knowingly make (or cause to be made) a false statement in writing with respect to
the financial condition or means or ability to pay (of the person or organization) for the purpose of procuring for the benefit of the person or organization, the delivery of personal property, the payment of money, etc.
Bill C-45 provides a set of factors that a court may consider (in addition to the generally applicable principles) when sentencing an organization. The factors include:
· any advantage realized by the organization as a result of the offence;
· the impact that the sentence would have on the economic viability of the organization and the continued employment of its employees;
· any regulatory penalty imposed on the organization or one of its representatives in respect of the conduct that formed the basis of the offence;
· any penalty imposed by the organization on a representative for their role in the commission of the offence;
· any measures that the organization has taken to reduce the likelihood of its committing a subsequent offence.
Under the Bill C-45 changes, an organization that is convicted of an offence is liable, in lieu of any imprisonment prescribed for that offence, for a fine to be determined by the court (except as otherwise provided by law). The maximum fine that can be imposed on an organization for a summary conviction offence is $100,000.00.
Ken Hurlbut
Legal Services, OPSEU
Legal Update Index
