Ever think you know something and then realize perhaps you don’t know it as well as you should? It happens to all of us. But as an Instructor it can be particularly uncomfortable if this situation comes up during a training session. A question arises and the answer eludes you. The following is our first attempt at identifying and explaining the kinds of issues we should all know well – issues that underpin key concepts in WHSC programs.
If you have a suggestion for other issues we might tackle drop our E-Notes editor, Yvonne Laurent a line, email@example.com.
Many instructors have been asked whether an employer’s intent is relevant in health and safety prosecutions. The short answer is “no.” The reasons and history behind this answer are rooted in the concept of “strict liability offenses.”
In 1978 Supreme Court of Canada Chief Justice Dickson wrote an important judgement in the case of R. v City of Sault Ste. Marie. It divided offenses into three categories: true crimes, absolutely liability offenses and strict liability offenses. All “public welfare” laws were placed into this last category. Occupational health and safety (OHS) laws are considered public welfare laws. Therefore OHS offenses are considered strict liability offenses.
The most significant feature of a strict liability offense is that the prosecution does not need to prove the culpability or blameworthiness of the defendant. In a strict liability prosecution, the only onus on the Crown is to prove the defendant broke the law.
Once a breach of the law is proven by the Crown, the onus switches to the defense. With only narrow exceptions, the only defense available to a defendant who has breached an OHS law is due diligence. As shown in the CCOHS definition of due diligence provided in many of our courses, due diligence is a fairly high standard. Only if the defendant can show that despite the breach of law all due diligence was taken in attempting to be compliant with the law, will the court find the defendant not guilty.