© 2004  Karen Selick
Hasty, Ill-conceived Westray Bill Will Backfire
An edited version of this article first appeared in the September, 2004 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


Hasty, Ill-conceived Westray Bill Will Backfire

It was certainly embarrassing when a businessman complained to me recently about the draconian new legislation his company was facing called Bill C-45.  I’d never heard of the darn thing.

“It’s that new workplace safety law that came into effect in April,” he said.  “Don’t you lawyers keep up to date?”

I thought he must be mistaken.  Workplace safety has always fallen under provincial jurisdiction, but Bill C-45 was obviously federal.  A quick investigation revealed, however, that he was right.  Bill C-45 was rushed through parliament lickety-split last year (passing 3 readings in 3 days in the Senate) with support from all parties and very little publicity.  Only three articles in the Canadian Press database for 2003 even mention it. 

The bill resulted from the 1992 Westray Mines explosion in which 26 workers died.  The mine’s parent company and two on-site managers were charged criminally but not convicted.  Recriminations flew.  Someone should have gone to jail, unions and victims’ families insisted.  What to do?  That old fix-all: amend the Criminal Code to make convictions easier.

Previously, corporations and other organizations could be held criminally liable for workplace accidents only if the criminal act or omission could be attributed to a “directing mind” of the organization.  Now, companies can be held criminally liable for the acts of employees who don’t occupy positions of authority.  As well, the physical act of committing the crime—the actus reus—and the intent to commit it—the mens rea—no longer need to derive from the same person.  Furthermore, the bill imposes an explicit legal duty to prevent bodily harm on “every one who undertakes or has the authority, to direct how another person does work.”   Clearly, corporations, their officers and directors can expect to face many more criminal charges in future.

Why the rush to pass this bill?  Conservative Senator Raynell Andreychuk explained: “The emergency here is the emotional need to resolve the Westray situation.”   In other words, the bill was designed to appeal to the heart, not the head.  How typical.  How ill-advised.

Let’s put things in perspective.  Each year, about 700 Canadians die in workplace accidents.  Sounds high, right?  Yes—until you read the reports saying that between 9,250 and 23,750 Canadians die annually in hospitals as a result of preventable accidents.  Canadians are at least 13 times, and possibly as many as 34 times, more likely to be killed accidentally in hospitals than at work.

U.S. statistics are similar, showing that only 5.3 percent of fatal accidents occur in the workplace, compared with 18.9 percent in public places, 33.1 percent in the home and 42.7 percent in motor vehicles. 

My businessman friend fumed, “My employees are 6 times safer coming to work than they are in their own homes.  Instead of hassling me with these new criminal laws, the government should be thanking me for giving them a place to spend their time where they’re safer than virtually anywhere else they could be!”

Despite the wild enthusiasm about Bill C-45 in some circles, it’s easy to predict how it might backfire.  Every business organization larger than a push-cart has a chain of command.  The head honcho focuses on the big picture and steers the organization.  Each successive level of employee focuses on a smaller part of the operation.  The CEO, after handling the high-level negotiations with customers, suppliers, financiers and regulators, doesn’t have time to make sure the drill press operator is keeping his fingers clear of the machinery.  If executives can be imprisoned and the company fined should some guy crush a pinkie, two things might happen.  Either the executives will become so preoccupied supervising worker safety to the exclusion of their broader duties that the whole organization will founder, or the only people who will take on the executive positions will be those too stupid or too reckless to care about their own potential criminal liability for the errors of others.  Neither outcome will be particularly felicitous for workers.

How bad might things get for corporations and executives?  One criminal law professor interviewed by Canadian Press predicted that “much will depend on the discretion prosecutors exercise in bringing charges.”  This is not exactly a ringing endorsement of the law’s objectivity.  But objectivity may not have been the goal.  Increasing the power of government may have been the goal.

As philosopher Ayn Rand wrote in her novel Atlas Shrugged, “There’s no way to rule innocent men.  The only power any government has is the power to crack down on criminals.  Well, when there aren’t enough criminals one makes them.  One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”

Workplace safety legislation has abounded for decades throughout Canada, but was useless to prevent the Westray tragedy and to prevent the 700 or so annual workplace fatalities.  Why are people so convinced that if something has already failed over and over again, more of the same thing is sure to work? 



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October 3, 2004