2004년 캐나다 버전 기업살인법 웨스트레이 법 - the Westray Bill , Bill C-45

[중대재해기업처벌법] [기업살인법 corporate homicide act] 캐나다도 이와 같은 법이 2004년에 제정되었다. 그 법 이름은 '웨스트레이 법 Westray Bill '이다. 산업재해가 발생할 경우, 그 처벌 대상은 노동자를 고용한 연방 정부, 주 정부, 공기업, 사기업, 비영리 자선단체, 비정부기구 NGO 등이다. 사고 조사와 기소 담당은 캐나다 경찰과 검사 (crown attorney)이다. 

캐나다의 경우도 한국의 '산업안전보건법'에 해당하는 '일터 (직장) 건강 안전법 occupational health and safe laws'가 있고, 이와 별도로 '웨스트레이 법'이 있다. 

웨스트레이 법안 제정 배경에는 1992년 웨스트레이 석탄 광산 폭발 사고로 26명 광부가 사망한 사건이 있다. 캐나다 동부 대서양 해변가, 노바 스코샤 주, 플리머스에 있는 웨스트레이 석탄 광산에서 메탄 가스에 의한 폭발사고가 일어났다. 

아래 유투브 다큐멘타리는 웨스트레이 석탄 광업소가 영업을 하게 되기 까지 보수당 데이비드 캐머런, 멀루니 수상 등 보수파 정치권의 입김과 선동이 있었음을 밝혀준다.

메탄 가스 폭발 이전에 이미 광부들은 갱도와 메탄 가스 폭발 위험을 감지하고 경영자와 관리자에게 경고도 했지만, 다 묵살당했다.

웨스트레이 광산폭발 희생자들은 관리자 2명을 불법살인과 과실치사로 고발했지만, 증거불충분이라는 이유로 유죄판결을 받지 못했다.

이 법정 투쟁 패배 이후, 피터 리처드가 새 법을 제안했다. 일터에서 노동자 사망시, 고용주와 해당 기업에 대한 처벌을 쉽게 할 수 있는 법안, 웨스트레이 법이 2004년에 제정되었다.

캐나다에서 웨스트레이 법이 제정된 이후, 4건의 유죄가 확정되었다고 한다.  그러나 캐나다 노동자들도 일터 안전에 대해 다 만족하지 못하고, 웨스트레이 법 적용 사례가 적다는 평가도 나오고 있다. 이에 노동운동가들과 주 정부와 연방 정부도 협력해 웨스트레이 법을 시민들,노동자,기업에 선전하고 있다.

What was the Westray bill (Bill C-45)?

The Westray bill or Bill C-45 was federal legislation that amended the Canadian Criminal Code and became law on March 31, 2004. The Bill (introduced in 2003) established new legal duties for workplace health and safety, and imposed serious penalties for violations that result in injuries or death. The Bill provided new rules for attributing criminal liability to organizations, including corporations, their representatives and those who direct the work of others.

NOTE: The Canadian federal government reuses bill numbers. Currently Bill C-45 is being used to announce Act(s) respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts.

Sections of the Criminal Code

The amendment added Section 217.1 to the Criminal Code which reads:

"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."

The amendment also added Sections 22.1 and 22.2 to the Criminal Code imposing criminal liability on organizations and its representatives for negligence (22.1) and other offences (22.2).

Why was Section 217.1 in the Criminal Code created?

The amendments announced in Bill C-45 (2003), also known as the "Westray Bill", was created as a result of the 1992 Westray coal mining disaster in Nova Scotia where 26 miners were killed after methane gas ignited causing an explosion. Despite serious safety concerns raised by employees, union officials and government inspectors at the time, the company instituted few changes. Eventually, the disaster occurred.

After the accident the police and provincial government failed to secure a conviction against the company or three of its managers. A Royal Commission of Inquiry was established to investigate the disaster. In 1998, the Royal Commission made 74 recommendations. The findings of this commission (in particular recommendation 73) were the movement that led to amendments of the Criminal Code.

What are the main provisions of Section 217.1 in the Criminal Code?

Section 217.1 in the Criminal Code:

Created rules for establishing criminal liability to organizations for the acts of their representatives.

Establishes a legal duty for all persons "directing the work of others" to take reasonable steps to ensure the safety of workers and the public.

Sets out the factors that courts must consider when sentencing an organization.

Provides optional conditions of probation that a court may impose on an organization.

Who do these provisions of the Criminal Code affect?

These provisions of the Criminal Code affect all organizations and individuals who direct the work of others, anywhere in Canada. These organizations include federal, provincial and municipal governments, corporations, private companies, charities and non-governmental organizations.

Who is responsible for enforcing this Criminal Code?

Police and crown attorneys enforce the Criminal Code. The police and crown are responsible for investigating serious accidents and will determine whether any charges should be laid under the Canadian Criminal Code. The Criminal Code is a very different set of rules, and should not be confused with "regular" occupational health and safety laws (OH&S) and how they are enforced.

Who is responsible for enforcing occupational health and safety laws?

Depending on your jurisdiction, the Ministry (or Department) of Labour or Workers' Compensation Board (WCB) enforces OH&S laws. Across Canada each province, territory and the federal government are responsible for enforcing their own individual set of occupational health and safety laws. Each jurisdiction employs inspectors who visit workplaces to ensure companies are complying with their OH&S legislation. In the unfortunate event of a serious incident, these inspectors conduct an investigation and determine if a charge should be laid under the appropriate section(s) of the OH&S Act or regulation. An accused individual or company may then need to appear in court where a fine or other penalty could be imposed if they are convicted. The police are not normally involved in this process.

Does Section 217.1 in the Criminal Code impact on other legislation?

No. Bill C-45 (2003) was a separate piece of legislation that applied to the Canadian Criminal Code only. It does not intrude upon, or override, other existing federal, provincial or territorial occupational health and safety statutes and regulations. In the event of a conviction; however, it does require the courts to look at any penalties imposed by other jurisdictions in determining a sentence.

Can a company be charged under a provincial OH&S act and the Criminal Code at the same time?

Yes, it is possible. It is common practice for both police and health and safety inspectors to both investigate a serious workplace accident. In most cases, the police and provincial authorities would work together to decide which charges should be made. While it is unlikely that two sets of charges would be made, technically speaking, charges can be laid under both the criminal code by the police and the Occupational Health and Safety Act or regulations by provincial authorities. This situation has occurred in the Millennium Crane Rentals case from Sault Ste Marie, ON.

What types of offences will be targeted?

To date there are eight cases where individuals were charged under the new provisions in the Criminal Code. See below for a brief summary of the charges.

Note: At the time the law was being discussed in parliament, the government commented on its intentions for the Bill stating that:

"the criminal law must be reserved for the most serious offences, those that involve grave moral faults... the Government does not intend to use the federal criminal law power to supplant or interfere with the provincial regulatory role in workplace health and safety"

Has anyone been charged?

Yes. To date there have been eight cases where charges have gone to court. Most of these cases did see other charges and fines issued using the occupational health and safety legislation of the jurisdiction where the incident took place.

On February 11, 2010 Sault Ste Marie Police charged the owner of Millennium Crane Rentals and the crane operator with criminal negligence causing death after a municipal worker was killed while working in an excavation hole. The accident occurred on April 16, 2009 at an excavation site where sewage work was being performed. The crane toppled and fell into the hole killing the worker. In March 2011, the Crown announced that it had dropped the charges of criminal negligence causing death because there was no reasonable prospect of conviction based on the evidence. In July 2013, Millennium Crane Rental was, however, "found guilty of failing to ensure that the crane was maintained in a condition that would not endanger a worker", and fined $70,000 for a violation of the Ontario Occupational Health and Safety Act.

On December 24, 2009 four workers were killed and one was seriously injured at a Toronto construction site when the swing stage scaffolding they were on collapsed. Metron Construction and three corporate officers were charged with criminal negligence and fined $200,000 plus a victim surcharge of $30,000. Metron's owner was personally fined $90,000, plus a victim surcharge of $22,500 under the Ontario Occupational Health and Safety Act. A total of 61 charges were laid by the Ministry of Labour. The fine against the company was appealed and in September 2013, the Appeal court tripled the fine against Metron, raising it to $750,000 for Criminal Negligence. An additional victim surcharge of $112,500 was levied against the company. The appeals court judge found that the original fine of $200,000 was "manifestly unfit". In 2016, a supervisor was charged and convicted under the Criminal Code, and was sentenced to 3.5 years in prison.

On March 17, 2008 a paving company (Transpave) was charged and convicted of criminal negligence and fined $100,000 in the death of an employee, plus a $10,000 victim surcharge.

On May 17, 2007, Mark Hritchuk, a Service Manager at a LaSalle, Quebec auto dealership was charged with criminal negligence after one of his employees caught on fire while using a makeshift fuel pump that had gone unrepaired and broken for several years. Mr. Daoust, a 22 year employee with the company, was engulfed in flames after a spark ignited fuel which had spilled on him, while he attempted to fill the gas tank of a vehicle whose fuel gage had broken and needed repairing. The employee survived but received third degree burns to 35% of his body. The case was brought before a court of inquiry on March 10, 2009. The case went to court in March 2012. Mr Hritchuk pleaded guilty of unlawfully causing bodily harm.

On October 13, 2006 a train struck a maintenance vehicle, killing one worker and injuring three others. Two employees of Québec-Cartier were charged with criminal negligence causing death and three counts of criminal negligence causing bodily harm. The corporation was not charged. On November 29th, 2010 a Quebec Court acquitted both men on all counts, finding that the incident was an error due to a company culture of tolerance of unsafe practices and deficient training rather than a wanton act of criminal negligence.

On Jun 12, 2006 a landscape contractor was crushed to death when the backhoe his employer was driving failed to stop, pinning the employee to a wall. The investigation of the incident found that the 30 year old backhoe had not received any regular maintenance since the vehicle was purchased and that no formal inspection had been done in the previous five years. Upon further investigation it was discovered that the vehicle had no braking capacity. In September 2010, the employer was convicted of criminal negligence causing death and was given a two year conditional sentence to be served in the community.

On March 22, 2006 BC Ferries vessel Queen of the North sank after going off course and running aground killing two passengers. The ferry navigation officer was charged with two counts of criminal negligence causing death. The officer was reported to have been distracted by a personal interaction he was having with another person and did not realize the vessel was off course. On June 24th, 2013, he was sentenced to 4 years in prison and banned from operating a vessel for 10 years. An appeal has been filed.

On April 19, 2004 near the city of Newmarket, Ontario a worker was killed after the ground around him collapsed while digging a ditch at a residential construction site. The construction site supervisor was charge under section 217.1 of the Criminal Code with one count of criminal negligence causing death. In March 2005, the charges of criminal negligence against the site supervisor were dropped in an apparent plea bargain which saw the supervisor agree to three of eight charges under the Ontario Occupational Health and Safety Act and a fine of $50,000 with a 25% victim surcharge.