Will Health & Safety Breaches Become a Crime?

EP Update - April 28, 2003

Legislation may be introduced as early as the spring of 2003 by the Federal government expanding corporate criminal liability in a number of areas. It is too early to comment in any detail. However, it appears that Criminal Code amendments may supplement Occupational Health & Safety Act provisions and other regulatory statutes to create new criminal offences for corporations and individuals who fail to protect or recklessly endanger workers and the public in the workplace.

We believe there is a serious commitment by the Federal government to criminalize behaviour previously subject only to regulatory processes. Corporations and its officers must ensure proper risk management and due diligence checks in their workplaces or potentially face serious criminal law consequences, including incarceration. Potential criminal sanctions should confirm the urgent need for timely review of workplace practices, if the increased fines levied recently under regulatory statutes such as the Occupational Health & Safety Act have not been enough incentive.

It is now even more important that employers understand legal rights should a workplace inspection turn into an investigation with the potential for criminal charges. Recent judicial comment with respect to the scope of an inspector's powers under regulatory statutes is topical.

When Does an Inspector Require a Warrant?

Inspectors can conduct two types of investigations under regulatory statutes. The first is to ensure compliance with statutory requirements. The second is where the inspector commences an investigation to gather evidence for the purpose of filing charges. An inspector conducting a true inspection or audit has broad powers to compel the individual or company to cooperate and provide information, produce documents and permit testing when reviewing compliance. However, once the investigator has decided to pursue charges, a warrant is required to gather further evidence. When confronted with an inspector responding to a workplace accident, the distinction between an inspection and an investigation are not often readily apparent.

In R. v. Jarvis, the Supreme Court of Canada clarified that a regulatory statute permits the inspector to proceed without a warrant until the point where the predominant purpose becomes the pursuit of a criminal or quasi criminal charge. In R. v. Inco, the Ontario Court of Appeal had earlier held that where an inspector has reasonable and probable grounds to believe that an offence had been committed, the inspector should obtain a warrant. In Jarvis, the Supreme Court of Canada eased the Inco test, by allowing the inspector to continue investigating, even though reasonable and probable grounds exist, provided that the inspector has not determined that charges will be imposed. The Court's primary concern in Jarvis was to avoid rendering inoperative the investigative powers of inspectors. The Jarivs case suggests the courts should look at the predominant purpose of the investigation to determine whether a warrant should be obtained.

A proper assessment of when a warrant is required is therefore of critical importance. Protections provided by the Charter of Rights and Freedoms are available once a warrant is required. These include protection against self-incrimination and from unreasonable search and seizure. Evidence obtained in violation of these rights may be excluded at trial. In the case of an extreme breach, the charges may be stayed. Therefore, it is important that employers and supervisors understand their rights while always ensuring that they do not interfere with a lawful inspection.

Should the Federal government proceed with criminalizing these issues, the Inco and Jarvis decisions will likely be tested. Charter protections will hopefully be given primary consideration if criminal sanctions are introduced.