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Focus On - Workplace accidents can provoke parallel prosecutions

|Written By Julius Melnitzer - Law Times

WhenBill C-45 — which exposed employers to potential criminal liability for certainhealth and safety offences — came into force on March 21, 2004, the prospect ofparallel prosecutions under the Criminal Code and occupational health andsafety legislation loomed large for employers.

John Mastoras says there may be times when employers who invoke the Canadian Charter of Rights and Freedoms in respect of the criminal charges find their rights conflict with the powers of health and safety inspectors.
John Mastoras says there may be times when employers who invoke the Canadian Charter of Rights and Freedoms in respect of the criminal charges find their rights conflict with the powers of health and safety inspectors.
"Senior management in the United States have been convicted of murder and similar offences arising from workplace injuries on many occasions over the years," said Cheryl Edwards, an employment lawyer at Toronto's Stringer Brisbin Humphrey. "So the prospect of criminalizing this area grabbed the attention of corporate Canada."

Christopher Little, an employment lawyer at Filion Wakely Thorup Angeletti LLP in Toronto, warned that the criminalization of occupational health and safety standards represented a "dramatic shift" in the regulatory environment.

"It's 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 regulatory investigations."

Indeed, it took less than a month after Bill C-45 came into force before a workplace accident provoked parallel proceedings.

On 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.

The 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.

The 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.

Shortly after Fantini left, the soil wall of the trench collapsed, burying and killing one of the workers.

In 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.

The 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).

In 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.

Although 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 criminal conviction.

"There's a legitimate concern that the existence of a criminal charge may affect the decision to plead guilty to regulatory charges," says Ryan Conlin, Edwards' partner.

But Bridget Lynett, deputy director of the Ministry of Labour's legal services branch, points out that the ministry and Ontario police conduct separate investigations.

"In Fantini's case, the Newmarket [York] regional police made the decision to lay criminal charges," she says.

"That decision was based on an investigation that Newmarket police conducted independently of the Ministry of Labour investigation and independently of the ministry's decision to lay OHSA charges."

The experience so far bears this out. Although 800 workplace deaths occur annually in Canada, Fantini's is the only case in which a parallel prosecution has occurred since Bill C-45's enactment.

"Parallel 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.

"I expected parallel prosecutions to be fairly rare, and so far that's been the case."

However 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.

"It makes sense to have some conversation and some co-ordination," Lynett says.

And 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.

But whether or not this is the case, the threat of parallel proceedings remains out there.

"The charges against Fantini are a sign of things to come," says John Mastoras, an employment lawyer at Ogilvy Renault LLP.

"More such charges will like be laid as the Crown tests the new health and safety provisions in the Criminal Code."

This possibility requires employers to be wary in their response to investigations.

"Employers should act cautiously in light of the possibility of parallel proceedings," Mastoras says.

But 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.

"Workplace 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.

By 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 legal counsel.

Otherwise, 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.

The 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.

"The 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.

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