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CCCA_V3No4_Dept-SubstantiveLaw-FIN.qxd:CCCA_V1No2_Dept-CourtLeg-V1.qxd 11/24/09 11:28 AM Page 15 Substantive Law Due diligence programs with regulations. death of a person. However, the court also In the criminal context, defences such as • Institute an accident investigation and noted that Transpave is a family corpora- “due diligence,” cannot be used to avoid reporting system. Employees should be tion and it had derived no advantage from liability. While this has traditionally only encouraged to report “near misses” and the perpetration of the offence. Further- been a defence under regulatory offences, these should be investigated. Incorporat- more, there had been no planning of any the amendments to Bill C-45 will neces- ing information from these investigations sort to commit the offence in question. sitate a juristic look at this defence for into revised, improved policies, practices The court also commented that safety reg- criminal purposes.What defines due dili- and procedures will also establish the ulations had been in place prior to the gence, however, will fluctuate depending employer is practising due diligence. accident, noting there was an existing on the individual case and the cir- health and safety committee at cumstances of the case. Employers Transpave, as well as an employee who already have preventative steps Employees should be code of conduct. similar system to use as a defence“ encouraged to report court also considered the amount In assessing the penalty, the for occupational health and safety reasons in place can implement a in its safety systems subsequent to under Bill C-45. As a caveat, all of ‘near misses…’ of money Transpave had invested the elements of a due diligence pro- ” the accident. For example, in gram must be in effect before any 2006, Transpave spent more than accident or injury occurs. half a million dollars to bring its An employer can facilitate its own • Document, in writing, all of the above two plants up to European safety levels, defence by establishing a preventative steps:this will give the employer a histo- which are higher than North American framework with their company: ry of how the company’s occupational standards. Transpave undertook many • Have in place written OH&S policies, health and safety program has pro- measures after the accident to help ensure practices, and procedures. These would gressed. Second, it will provide up-to- that it did not reoccur. demonstrate and document that the date documentation that can be used as In rendering its decision, the court employer carried out workplace safety a defence to charges in case an accident appeared to be particularly influenced by audits,identified hazardous practices and occurs despite an employer’s due dili- the measures implemented after the conditions, made necessary changes, and gence efforts. employee’s death to prevent a recurrence. provided employees with information On December 7, 2007,Transpave, Inc., Implementing health and safety measures to enable them to work safely. a concrete block manufacturer northwest will help demonstrate to a court that all rea- • Provide the appropriate training and of Montreal, pleaded guilty in Saint- sonable steps are being taken by the organi- education to employees so they under- Jérôme, Que., to charges of criminal neg- zation to ensure the workplace is safe. stand and carry out their work accord- ligence causing death under the Criminal A final comment may be made about ing to established policies, practices, and Code.These charges arose from the 2005 the rule against duplicity under the procedures. death of 23-year-old Steve L’Écuyer, who Criminal Code which ensures that an • Train the supervisors to ensure they was killed while trying to clear a jam in a accused cannot be convicted of the same are competent persons, as defined in machine. Investigations by Quebec’s offence more than once. If charges were legislation. Health and Safety Board and provincial brought both under the Criminal Code and • Monitor the workplace and ensure that police found the company was negligent occupational health and safety legislation, employees are following the policies, when it allowed L’Écuyer to operate the this defence may be tried to see whether practices and procedures.Written docu- machine while its motion detector safety judicial treatment upholds its validity mentation of progressive disciplining for mechanism was deactivated. when tried for the same charge under two breaches of safety rules is considered The Crown and defence made a joint different pieces of legislation. due diligence. submission to the court and agreed that a • Workers have a duty to take reasonable fine of $100,000 would be an appropriate Pradeep Chand is a former CrownAttorney who care to ensure the safety of themselves punishment. In sentencing Transpave Inc., currently practises occupational health & safety law and their coworkers.This includes follow- the court noted that the severity of the at BrautiThorning Zibarras LLP inToronto. He ing safe work practices and complying offence was high given that it involved the can be reached at pchand@btzlaw.ca. HIVER 2009 CCCA Canadian Corporate Counsel Association 15