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Shifting Burdens: OHS Prosecutions May Be Getting Harder for the Crown

Fasken
Reading Time 4 minute read
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"Do" Diligence: OHS/WSIB Newsletter

A recent decision of the Alberta Court of Appeal may make it more difficult for the Crown to prove general duty offences under occupational health and safety legislation in Alberta.    

On August 22, 2018 the Alberta Court of Appeal released its decision in R. v. Precision Diversified Oilfield Services Corp. (PDF), 2018 ABCA 273. The decision attempts to clarify the scope of the actus reus to be proven by the Crown where an employer is charged with failing to ensure the health and safety of a worker under OHS legislation.

Facts

After one of its workers suffered a fatal head injury while working on one of its drilling rigs, Precision was charged with failing to ensure the worker's safety "as far as it is reasonably practicable for the employer to do so", contrary to s. 2(1) of Alberta's former Occupational Health and Safety Act, RSA 2000, c O-2 (now s. 3(1) of SA 2017, c O-2.1). Precision was also charged with failing to adopt engineering or administrative controls in order to mitigate workplace hazards as required by the Occupational Health and Safety Code, but the focus of the appeal was on the offence in s. 2(1).

Precision was convicted at trial on both counts, but the convictions were overturned by the Alberta Court of Queen's Bench. One of the issues before the Court of Appeal was whether the expression "as far as it is reasonably practicable for the employer to do so" forms part of the actus reus to be proven by the Crown or part of the due diligence defence to be proven by the accused.

Issue

The question was whether, in addition to proving that the employer had failed to ensure the health and safety of the worker, the Crown also had to prove that the employer could have prevented the harm through "reasonably practicable" efforts that the employer failed to undertake.

The Crown opposed this interpretation, arguing that it would essentially shift the burden to the Crown of disproving the accused's due diligence. The majority of the Court disagreed. It held that the wording used in the legislation cast the "reasonably practicable" element, not as a codification of the "due diligence" defence, but rather as part of the offence that the Crown must prove. The majority thus held that the Crown had to prove all of the following in order to secure a conviction of an employer under s. 2(1):

  1. the worker must have been engaged in the work of the employer;
  2. the worker's health or safety must have been threatened or compromised (i.e. an unsafe condition); and
  3. it was reasonably practicable for the employer to address the unsafe condition through efforts that the employer failed to undertake.

The majority downplayed the Crown's concerns about the increased difficulty of prosecution, observing that "ease of enforcement alone cannot justify disregarding the ordinary meaning of the text and adopting a strained interpretation instead." It also noted that appellate courts in both Ontario and Saskatchewan have adopted similar approaches to the Crown's burden of proof in OHS offences.

Commentary

Although Alberta has recently adopted new OHS legislation, this new legislation also contains a general duty offence including the words "as far as it is reasonably practicable for the employer to do so". These same words are also used to qualify duties of other work site participants including supervisors, suppliers, owners, contractors, and prime contractors. Moreover, the concept of reasonable practicability is incorporated into many public welfare statues such that the impacts of Precision may prove to be far reaching.

In our view, this decision may increase the Crown's burden in OHS prosecutions and could make convictions more difficult. Although the majority in Precision listed numerous sources of evidence potentially available to the Crown in an OHS prosecution, including the circumstances of the incident, the results of any investigation into the cause of the incident, the employer's preventative efforts, and the employer's health and safety policy, the practical reality is that the Crown often has less insight into industries and workplaces than do employers (or other work site participants). Moreover, it is not immediately clear how the Crown could satisfy its burden in situations, as in Precision, where the Crown may not be able to prove exactly how an incident occurred, and thus to establish the specific duties that the employer breached. Requiring the Crown, instead of the employer, to lead evidence of what is "reasonably practicable" could also result in longer and more difficult prosecutions.

Given the strong dissent in Precision, the scope of the Crown's burden in general duty regulatory offences may well be revisited by the Supreme Court of Canada.

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