Canadian Safety Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 CSR | December 2014 | News plosion, which killed 26 workers — and changed the surrounding communities forever, said Ste- phen Hunt, director of District 3-Western Canada at the United Steelworkers Union (USW), in Burnaby, B.C. "That's where it started and we've been fighting ever since," he said. "We started on a cam- paign to fight back. We gave a commitment to the families and the survivors that there would be no more Westrays, and we've stood by it for the last 22 years." Hunt, who testified as an ex- pert witness at the inquiry, said the law was one of the recom- mendations that came out of the Westray inquiry. It passed through federal parliament with all-party support and became law in 2004. It amended the criminal code so that under cer- tain circumstances, individuals and organizations could be crim- inally liable for workplace deaths and injuries. "And we actually thought, 'Wow. We've won, and now we'll see the paradigm shift that we need to stop workplace deaths, or at least reduce workplace deaths and serious injuries,'" said Hunt. "Unfortunately, after the law was passed, the political decision not to enforce has existed in the country, and there's been limited activity around the Westray bill." As of January 2014, there had been a total of eight cases with criminal charges laid under the Westray law since its inception, according to the Canadian Cen- tre for Occupational Health and Safety. Of those, five resulted in crim- inal convictions; three resulted in charges being dropped or indi- viduals being acquitted. However, according to the USW, about 1,000 Canadian workers are killed on the job ev- ery year, representing one of the worst records in the developed world. Stop the Killing campaign That workplace deaths record, combined with the relatively small number of employers charged under Bill C-45, is why the USW decided to launch the Stop the Killing — Enforce the Law campaign on the 20-year anniversary of the Westray mine disaster, said Hunt. The campaign has been gaining momentum in recent months, having been raised with federal, provincial and territorial justice ministers, said the union. It has also developed a strong support base with municipali- ties, including Toronto, said Hunt. "The results have been very positive; when we take it to most municipal councils, they get it," he said. "We had the B.C. union of mu- nicipalities recently in Whistler endorse our resolution by 100 per cent, so every community in British Columbia now has sup- ported it; we're trying that across the country with different prov- inces. We've been meeting with attorneys general across the country, we've had Nova Scotia, Manitoba and British Columbia now agree to our protocol, which is very similar to our resolution... Manitoba has hired special in- vestigators to work on workplace fatalities; (the same as) in Nova Scotia. "We think we're making posi- tive inroads to really finish off our campaign that started 22 years ago." Better enforcement on the horizon? Those positive inroads have been hard-won, as there is still a real reluctance by crown counsel and police — those responsible for enforcing Bill C-45 — to lay criminal charges, said Hunt. "It's not that we want to see CEOs and others go to jail, but we do want something done with the amount of people that die on the job… this would be the para- digm shift that we think we need to say, 'It's not OK for someone to lose their life because of their job,'" said Hunt. It's hard to find one clear rea- son why enforcement is so rare, said Ralph Balbaa, president of HITE engineering in Toronto. "I honestly don't know why there isn't more enforcement of that act. Was it just a knee-jerk reaction to the Westray Mine (di- saster), and after that they found it was harder to implement than they thought it was?" he asked. There are probably a few dif- ferent factors at play, said Adrian Miedema, partner in the Toronto employment law group at Den- tons. "One (is), the Crown would have to prove reckless and wan- ton disregard for the lives or safe- ty of persons. And in the criminal law, there is what we call a mens rea element, which means a per- son has to have a 'guilty mind' in order to be convicted of a crimi- nal offence. And in order for the police and the prosecutor to prove wanton or reckless disre- gard for the lives or safety of oth- er persons… I don't think that's an easy thing to prove," he said. Another issue might be that of familiarity with the legislation — though that's less likely now that the law has passed its 10-year an- niversary in May. "There was some suggestion that the police just weren't used to laying criminal charges in workplace situations, and that would explain some of the reluc- tance. But… they've had 10 years of experience with the bill, so that's probably not really opera- tive anymore," said Miedema. Proper enforcement is not the only priority, said Balbaa — transparency about the circum- stances of workplace accidents is also critically important. How- ever, detailed information is sel- dom available. "It's usually very generic. What is happening to all of these foren- sic reports that we are writing that are detailed about what hap- pened and how it happened and how to avoid it in the future?" he asked. "You can't access them — they're not there. And we're not learning from our mistakes." Whether we'll start seeing more enforcement under Bill C-45 remains to be seen, said Miedema. But, certainly, the groundswell of public support is growing. "What we're seeing now, as the years go by, is more union and public pressure in the case of very serious accidents for the police to lay criminal charges in addition to provincial occupational health and safety charges," he said. "There is an increasing public appetite in very serious cases… for the police to get involved and to lay charges. And I think that probably will be a factor in the years ahead." Fighting ever since < pg. 1 'Political decision' in Canada to not enforce law Credit: Jim Young (Reuters)

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