"Criminalization" Of Health And Safety: How to Prepare for New Criminal Code Responsibilities and Criminal Negligence Risks

In light of recent amendments to the Criminal Code, it is now possible to face both regulatory and Criminal Code prosecutions in the wake of a serious workplace accident. The new law creates positive occupational health and safety-related duties toward workers and the public. It contains dramatic new sentencing provisions. It effectively creates a "due diligence" obligation for senior managers and executives across Canada.

You Will Learn: 

• Why the government is "criminalizing" OH&S
• How "criminalization" will work for individuals
• About the prospect of parallel criminal and OH&S charges and penalties
• How amendments to the Criminal Code remove traditional barriers to corporate criminal charges
• How "criminalization" will affect post-accident dynamics

The Program Will Cover:

Why The Government Is "Criminalizing" OH&S 

• How the Westray disaster and its aftermath of criminal charges and recommendations created an impetus
• Past Canadian attempts to "criminalize" corporations and individuals after workplace accidents
• Aren't corporate and individual fines for workplace accidents already high enough?  Brief review of recent OH&S penalty cases, particularly against supervisors and senior management 

The New Legislation:  Pinstripes To Prison Stripes 

• How "criminalization" will work for individuals
• The new positive duty for individuals and its scope:  supervisors, managers, officers and directors, lead hands
• Expected targeting of senior managers, officers and directors
• How and when individuals will be prosecuted for "criminal negligence"
• Criminal Code penalties for individuals including life imprisonment
• How the government will apply the experience of other jurisdictions, where "criminal" OH&S provisions exist and jail is more common
• The prospect of parallel criminal and OH&S charges and penalties 

How "Criminalization" Will Work For Organizations, Including Corporations 

• Defining the "organization" broadly, including municipalities, societies, public bodies, not-for-profit organizations (even trade unions)
• How the legislation removes traditional barriers to corporate criminal charges
• The expected two-stage process for a corporate criminal conviction
• How actions of corporate "representatives" from senior executives to workers and even lead hands and contractors) can result in corporate criminal liability
• How the government plans to turn strategies by corporate executives to insulate themselves from safety information into corporate criminal liability
• New corporate sentencing options:  limitless fines, probationary terms designed to impact corporate image

You've Had A Serious Workplace Accident:  How "Criminalization" Will Affect Post-Accident Dynamics

• How Criminal Code provisions and penalties will differ from and co-exist with the OHSA
• When the Criminal Code will be used against corporations and individuals
• The police and MOL are at the door:  OH&S or "criminal" investigation?
• How individual rights (and some corporate rights) clearly increase in a "criminal" investigation
• The right to remain silent, right to counsel upon arrest or detention, rights to be free from "unreasonable search and seizure"
• Police powers versus MOL powers
• Balancing cooperation required for OH&S inspections with rights on "investigations" by criminal and OH&S enforcers 

Keeping Your Senior Executives In Pinstripes:  Effective And Simple Strategies 

• Bringing OH&S into the boardroom - convincing senior officials, officers and directors that they must act
• Steps which senior officials must take to prevent corporate "criminal" convictions
• Who must take these steps?
• Ensuring that health and safety is on the agenda
• Simple strategies for safety and human resources professionals to create paper summaries of key information for senior officials to act on
• Why basic OH&S knowledge and directives to remedy safety problems will become increasingly crucial for senior executives
• A plan to create and record safety directives by senior officials 

Strategic Corporate Responses To "Criminalization" 

• Reviewing the sufficiency of current corporate OH&S programs to include new measures to prevent "criminal charges"
• How and why classic "due diligence" will be important, but not sufficient
• Preparing appropriate accident response plans to protect corporate and individual interests
• How and why worker, lead hand, and contractor compliance will be key to preventing corporate "criminal" charges
• Distribution of and training key personnel in accident response plan
• A precedent accident response plan for your organization