have been convicted of murder and similar offences arising from workplace
injuries on many occasions over the years," said Cheryl Edwards, an employment
Stringer Brisbin Humphrey. "So the prospect of criminalizing this area grabbed
the attention of corporate
not good news for employers," he said. "If governments continue to pursue
regulatory charges as aggressively as they have over the last decade, there
will be many employers facing federal criminal charges springing from
it took less than a month after Bill C-45 came into force before a workplace
accident provoked parallel proceedings.
April 19, 2004, 68-year-old Domenic Fantini of Vista Construction was
supervising workers repairing a drainage problem in the foundation of a house
located in King Township,
just north of Toronto.
workers were installing weeping tiles in a trench around the foundation of the
house. Fantini advised the workers regarding the dimensions of the trench, but
gave no directions to slope or shore the trench, as the owner had instructed.
task required the workers to enter the trench. They did so under Fantini's
supervision until he left the site to get materials for the job.
after Fantini left, the soil wall of the trench collapsed, burying and killing
one of the workers.
August 2004, police charged Fantini with criminal negligence causing death. The
police alleged that Fantini failed to "take reasonable steps to prevent bodily
harm," as required by Bill C-45. Criminal negligence causing death carries a
maximum penalty of life in prison.
Ontario Ministry of Labour also investigated the fatality, eventually charging
Fantini with eight counts of failing to ensure compliance under s. 25(1)(c) of
the Occupational Health and Safety Act (OHSA).
March 2005, Fantini pleaded guilty to the charges under the OHSA and received a
$50,000 fine. The Crown attorney prosecuting the criminal charges withdrew the
criminal negligence charges.
Fantini must have breathed a considerable sigh of relief at the withdrawal of
the more serious charges, the parallel prosecution raised the possibility that
the mere existence of Criminal Code charges would encourage unwarranted guilty
pleas under the OHSA for fear of the more serious consequences flowing from a
a legitimate concern that the existence of a criminal charge may affect the
decision to plead guilty to regulatory charges," says Ryan Conlin, Edwards'
Bridget Lynett, deputy director of the Ministry of Labour's legal services
branch, points out that the ministry and Ontario
police conduct separate investigations.
Fantini's case, the Newmarket [York] regional police made the decision to
criminal charges," she says.
decision was based on an
that Newmarket police conducted independently of the Ministry of Labour
investigation and independently of the ministry's decision to lay OHSA
experience so far bears this out. Although 800 workplace deaths occur annually
Fantini's is the only case in which a parallel prosecution has occurred since
Bill C-45's enactment.
prosecutions don't seem to be a common practice and it doesn't look as if the
authorities are using the threat of criminal charges as a sword to hang over
the head of people charged with regulatory offences," Conlin says.
expected parallel prosecutions to be fairly rare, and so far that's been the
that may be, chaos in the legal system would ensue if some communication
between labour ministry prosecutors and criminal code prosecutors did not occur
once parallel charges have been laid.
makes sense to have some conversation and some co-ordination," Lynett says.
this means there will be some discussion among prosecutors as to timing and
tactics. Some might say it defies logic to assume that inducing a guilty plea
of some kind to avoid the expense of what might be a long trial will not be on
the prosecutorial agenda.
whether or not this is the case, the threat of parallel proceedings remains out
charges against Fantini are a sign of things to come," says John Mastoras, an
employment lawyer at Ogilvy Renault LLP.
such charges will like be laid as the Crown tests the new health and safety
provisions in the Criminal Code."
possibility requires employers to be wary in their response to investigations.
should act cautiously in light of the possibility of parallel proceedings," Mastoras
there's a conundrum: in some cases, employers who invoke the Canadian Charter
of Rights and Freedoms in respect of the criminal charges may find that their
rights conflict with the powers of inspectors acting under the OHSA.
safety legislation allows the government to access information relating to
workplace accidents with greater ease than the Crown can in exercising its
criminal law power," Mastoras says.
way of example, the OHSA imposes an obligation to facilitate investigation into
workplace accidents. Failure to do so can lead to obstruction charges and
serious penalties. In contrast, the Charter provides a right to remain silent,
protection against self-incrimination, and the right to retain and instruct
the OHSA allows investigators to seize relevant evidence without a warrant at
any point before they have reasonable grounds to believe that an offence has
been committed. After that point, they must obtain a warrant.
Charter's prohibitions on warrantless searches are much wider, establishing the
right to be secure against unreasonable search and seizure. Police, then, may
not attend at a workplace and seize evidence at any time unless they have a
warrant to do so.
question of whether and to what extent regulatory investigators and the police
may share information regarding a workplace accident will therefore become
increasingly important," Mastoras says.