Smoke-free workplace is the law
MDs: New bill makes employers criminally liable if they fail to protect workers
  
Mark Kennedy 
The Ottawa Citizen 


January 11, 2004
 

 

 
A new law recently passed by Parliament means Canadian employers could be held criminally liable if they fail to provide smoke-free workplaces, says a leading anti-tobacco group.

Physicians For A Smoke-Free Canada says the changes are contained in C-45, a bill that was quietly passed by the House of Commons and Senate last fall with little public attention.

The bill, which amends the Criminal Code, arose in response to the 1992 Westray mine disaster in Nova Scotia in which 26 miners were killed. The federal government concluded a new law was required to provide better workplace protections and to modernize the Criminal Code so negligent companies can be held to account for their actions.

In the final days of the Jean Chretien government, Parliament passed C-45, and the new law is expected to be proclaimed by cabinet in coming months so that it can take legal effect.

Criminal defence lawyers complain the bill is seriously flawed and was rushed through Parliament without sufficient public hearings. They warn the law could be used to mount unfair prosecutions against corporations and even non-business "organizations" on a range of matters.

"This bill has been blindly introduced," says Toronto lawyer Bill Trudell, chairman of the Canadian Council of Criminal Defence Lawyers. His main concern is the bill makes it easier for charges to be laid against companies and organizations if negligence occurs somewhere within their ranks.

"There are going to be prosecutions; there are going to be companies that are destroyed; there are going to be people whose reputations are destroyed in the community. And quite frankly, there's going to be shareholders losing a lot of money."

But health advocates at the anti-tobacco doctors' group are ecstatic. They are gleefully insisting that although the government may not have realized what it was doing when it drafted the broadly worded bill, it appears to have inadvertently provided protection for people who want smoke-free workplaces.

"We think Bill C-45 requires employers to take reasonable measures such as banning smoking in the workplace," said Neil Collishaw, the group's research director. "And if they don't do so, and somebody gets sick, it could end up in a charge of criminal negligence causing death."

The federal Justice department, however, says that while the law's new provisions could "theoretically" be applied in such instances, it's unlikely this will happen.

At the heart of the debate is a new clause added to the Criminal Code.

It says: "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 another person, arising from that work or task."

Under the bill, bodily harm is defined as "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature."

Federal justice department lawyer Greg Yost doesn't put much stock in the anti-tobacco group's view.

"People only spend so much time in their office and they spend three times as much at home," he said.

"I think it would be a very difficult criminal charge to establish. I can see that it's theoretically possible."

"There's a lot of steps you'd have to go through to establish a criminal charge. One can stretch the wording the way you want to, but this thing came out of Westray."

The bill is designed to ensure employers have safety precautions at workplaces such as a mine or a construction site, he says. Similarly, if a homeowner hires an inexperienced teenager to cut down a tree in their backyard and the teen is injured by the falling tree, a charge might be laid.

"But the circumstance of a build-up over the years of exposure to smoke as the cause of cancer, you know, people only spend so much time in their office and they spend three times as much at home. I think it would be a very difficult criminal charge to establish. I can see that it's theoretically possible."

Mr. Yost said a prosecution could not proceed without the consent of a Crown attorney, who would have to be convinced the employer failed to take "reasonable steps" to protect their workers and showed "wanton and reckless disregard" for their safety.

But Mr. Collishaw said making the case in court wouldn't be as difficult as Mr. Yost claims.

"A safe and healthy workplace these days, with what we know about smoking, has to be one that is smoke-free. The evidence is so overwhelming you can't come to any other conclusion. Smoke in any amount is hazardous, and there's no solution to the problem through ventilation."