Section 217.1

The New Bill C-45

(217.1) Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.

Bill C-45 has passed and is now a Criminal Code law in Canada. From now on, it should be referred to as Section 217.1. I’m sure you’ve read and heard more about this legislation than any other Occupational Health & Safety initiative in recent memory. Our first article on Bill C-45 generated a substantial number of hits, and the law certainly has brought about a great deal of debate about how it will be implemented.

As a former police officer, and investigator of accidents, incidents and occurrences, I can tell you that we now enter a grey area. For instance:

• Who will be responsible to investigate an occupational incident?

• Who will be in charge of the investigation?

• Who will have control over the scene?

• Who will document statements, and who will photograph and measure scenes?

I’ve got a number of concerns, as do I’m sure most of you. One of my chief concerns is that of the provision of statements to investigators. Under most Occupational Health & Safety Acts, you are required to cooperate fully with an investigating Occupational or Divisional Officer. As such, you are required to provide verbal or written statements to investigators.

This differs greatly from your requirements under the Criminal Code of Canada. More specifically, you are NOT required to make statements to the police investigating an incident that could result in criminal charges. In fact, the police are required to inform you of your “right to remain silent” (an American term), and must give you fair warning if a statement is sought from a suspect to a crime. These are referred to as “Warned Statements’.

Can a statement you make to an Occupational Inspector be turned over to the police for their investigation? Does it then become admissible as a Warned Statement? Can you legally refuse to provide a statement to an Occupational Inspector? Time will tell how these and other issues are worked out.

In my editorial on the standardization of standards, I talk about the different requirements from jurisdiction to jurisdiction that exist under various Occupational Health & Safety Regulations. Now, section 217.1 uses the term “reasonable steps to prevent bodily harm.” The implication is that there is one reasonable application of safety that constitutes these necessary steps. I think that an unforeseen consequence of this law is that its application will raise doubt to the varying standards from jurisdiction to jurisdiction. What is considered reasonable in Ontario is not necessarily the same as in British Columbia. Will this be raised as a defence? Who knows?

I’m sure that the implementation of this new law will not come without controversy. Crown Prosecutors will have to find the right case to present charges before the courts in what will become a precedent setting decision. Since nobody wants to be that test case, I suggest we each re-examine our own backyards to ensure that we don’t fall under the scrutiny of the criminal courts.

When we do consulting work, we generally get one of three types of clients. The first type of client is one who is proactive in regards to health and safety initiatives, and wants safety and training programs to ensure that problems don’t develop to begin with in the first place. They have a tendency towards lower incident rates, higher productivity, and lower turnover among staff members.

The second type of client initiates health and safety training because it is required by law, or in response to an issue that has been raised. They schedule training as required, sometimes in response to Occupational Health & Safety Committee recommendations, and sometimes after an internal audit or review.

The third type of client only brings in training or safety programs after an incident or a series of incidents. Sometimes they have been mandated by Occupational Inspectors to have the programs in place by a particular date, or face fines or workplace shutdowns. I’ve even had potential clients in this third category take me on a brief walk-through of their facilities, and after questions about their health & safety programs, I’ve provided ballpark figures as to how much program development, personal protective equipment and engineering controls, and subsequent training will cost.

Once I had a potential client blink at me, stare, and then say, “What are my chances of getting caught?” This from a guy whose employee I observed dangling over the side of a scissor lift, without any sort of fall protection in place, over-reaching to change a light bulb 50 feet in the air. Another employer, who had welded his own roll-over protective structures (ROPS) onto an old piece of earth moving equipment, told me point blank that he couldn’t afford to make the changes, and didn’t feel he would get caught in any event. He bristled at the suggestion that the ROPS was inadequate, since they had rolled the earth mover twice and it had held.

And no, I didn’t work for either of these clients. Both are still in business. From a consultant’s point of view, I’m frankly happy not to work with either. I’m happy to give 110% for a client who wants to have a safer workplace. I’m troubled with clients who take the results of safety audits or carefully crafted policy, and stick them on a shelf gathering dust. Action lists left unattended don’t make workplaces safer.

These are the employers who need to feel the leverage of laws such as section 217.1. They need to know that they will be held criminally accountable for their lack of reasonable care. If one of them goes to jail for what accounts to gross negligence, so much the better.

I’m just scared that someone will get hurt or killed waiting for that precedent setting incident to make case law.

Please e-mail your comments to comments@itd2.com

The New Bill C-45

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