Canadian occupational health and safety regulators have both the legal authority and moral responsibility to set, communicate, and enforce workplace safety standards nationwide. The key question is identifying the best regulatory model to protect workers and ensure the highest standards of safety. Many Canadian regulators respond to workplace incidents, injuries, and fatalities by prosecuting employers and other stakeholders.
OHS penal prosecutions can involve quasi-criminal charges under health and safety laws or criminal charges under the Westray Bill. Convictions can lead to high fines, jail terms, and debarment from future public and private business opportunities, increasing the punishment and costs for the corporate employer.
A recent Supreme Court decision in the City of Greater Sudbury case has led to a rise in pre-qualification and debarment of convicted employers by all levels of government.
In addition, private sector owners and developers of construction projects are implementing policies to exclude contractors with previous OHS convictions. This risk management approach is based on the notion that employers with a history of OHS convictions demonstrate suboptimal commitment to OHS programs and pose an increased risk of complaints, incidents, or worker injuries resulting in regulatory enforcement.
One of the many methods
The use of penal prosecutions by governments to enforce OHS standards is just one of several methods available for OHS accountability and enforcement. Other regulatory compliance models exist and warrant consideration to enhance workplace safety.
For instance, in the United States, citations with Administrative Monetary Penalties (AMPs) are commonly employed for OHS enforcement. British Columbia stands out as the only Canadian jurisdiction that heavily relies on AMPs over penal prosecutions to enforce OHS laws.
In contrast, countries like the United Kingdom prioritize proactive inspections, collaborative approaches, and mandatory compliance orders over prosecutions to ensure OHS law compliance. Despite its larger population, the United Kingdom sees far fewer OHS prosecutions annually compared to Canada.
DPAs: Another Enforcement Approach
DPAs offer a constructive method to address OHS non-compliance, diverging from traditional criminal prosecution. Unlike trials, which entail significant time, legal complexities, and costs, DPAs present a streamlined alternative for resolving allegations.
By avoiding protracted legal battles and hefty expenses, DPAs benefit all involved parties, including the taxpayer-supported judicial system. This approach is increasingly favored globally, as seen in the United States, the United Kingdom, and France, highlighting its effectiveness in promoting compliance and enforcement.
A DPA functions as a diversion program for accused corporations in regulatory or criminal enforcement contexts. In Canada, diversion programs have aided young, Indigenous, and special needs offenders for years. These programs address individuals facing arrest or charges for criminal offenses.
A diversion program requires the accused to admit legal violation, accept consequences, engage in corrective actions, and rehabilitation. This agreement is made in court and supervised judicially.
Before cannabis legalization, young offenders often opted for diversion programs instead of trials, penalties, and criminal records. These programs usually entailed acknowledging wrongdoing, drug education, and public commitment to change.
Corporate Diversion Programs
In Canada, the Competition Bureau employs the ‘Immunity Program’ to resolve price fixing and other offences under the Competition Act effectively. Similarly, the federal government utilizes Environmental Protection Alternative Measures (EPMA) agreements for resolving environmental offences.
Moreover, under the Criminal Code, corporate offenders can admit to fraud, corruption, or other white-collar crimes through Deferred Prosecution Agreements (DPAs). This approach enables rehabilitation without acquiring a criminal record, avoiding automatic debarment from government and business opportunities.
A ‘Win-Win’ Solution
Corporate Deferred Prosecution Agreements (DPAs) offer a potential ‘win-win’ outcome. They benefit both the regulator, representing societal interests, and the legitimate business concerns of the corporate offender. These agreements safeguard the interests of investors, employees, and other stakeholders. Hence, DPAs could serve as an effective approach to achieving a balance in Occupational Health and Safety (OHS) legal compliance. They help avoid the costs of a trial, mitigate harm to innocent stakeholders, and reduce the risk of charges being dismissed by the state.
The author elsewhere comprehensively reviewed the pros and cons of DPAs for corporate offenders. A brief summary of the benefits for OHS legal enforcement:
- Avoiding lengthy, costly, and uncertain outcomes of OHS charges leading to a trial.
- Preventing damage to the employer’s business reputation and future business opportunities due to public trial and conviction.
- Protecting innocent stakeholders, such as investors, employees, customers, and suppliers unaffected by the incident.
While the aim of OHS laws and enforcement is workplace safety improvement, Canada’s prevalent use of penal prosecutions lacks reflection on the efficacy of this model. Surprisingly, no empirical study in Canada reliably confirms a positive correlation between increased OHS prosecutions, penalties, and reduced workplace incidents, injuries, and fatalities. This absence of evidence is striking, considering the ongoing trend of Canadian OHS regulators to escalate both penalties and prosecution frequency.
Instead of persisting with a failed policy model, there must be a more effective approach to enhance workplace safety.
Here’s how a DPA could facilitate OHS enforcement without the lengthy, costly, and adversarial process of penal prosecution:
- After a workplace incident, injury, or fatality, the OHS regulator investigates and identifies OHS legal contraventions.
- Negotiations between the OHS regulator, corporate employer, and their legal counsel define DPA terms.
- The DPA mandates acknowledgment of the OHS violation by the corporate employer.
- A significant monetary penalty is imposed for failing to meet the OHS legal standard.
- Requirements to enhance current OHS policies, procedures, training, and accountability are included.
- A public judicial review confirms commitment to the improved OHS compliance program.
- Upon completion of the criteria, pending or actual OHS penal charges are stayed by a judge at the prosecutor’s request.
Enhancing Workplace Safety with Deferred Prosecution Agreements
While DPAs may not always be used by OHS regulators, especially in cases involving fatalities and repeat offenders, quasi-criminal and criminal OHS prosecutions will still have a role. However, the resources tied up in penal prosecutions can be better utilized in constructive resolution discussions to enhance workplace safety.
If governments and OHS regulators genuinely aim to reduce workplace incidents, injuries, and fatalities, and enhance workplace safety, there’s no reason not to make OHS DPAs available in every Canadian jurisdiction.
This brief overview of DPAs illustrates their effectiveness and efficiency in holding corporate employers accountable for OHS legal violations. While DPAs may not necessarily reduce the monetary penalties employers face, they also won’t cripple them from future business activity, which inadvertently punishes employers, investors, suppliers, customers, and other workplace stakeholders.
DPAs also prevent a record of conviction, enabling capable businesses to offer goods and services. Widely used in other democratic nations, DPAs have seen resounding success.
While DPAs aren’t a cure-all for improving workplace safety, they bolster legal enforcement against offenders. They also prevent hardship for non-offenders while averting the existential threat of corporate capital punishment through OHS prosecutions, convictions, and debarment.