Steven Bittle on Bringing Criminal Charges Against Companies For Worker Deaths

In 1992, an underground explosion at the Westray Mine in Plymouth, Nova Scotia killed twenty-six miners. Although the owners of the mine were charged criminally, no one was convicted, largely because it was deemed too difficult to determine legal responsibility.


In a 2013 book, Still Dying for a Living, Steven Bittle turns a critical eye on Canada’s corporate criminal liability law.

Bittle is an Associate Professor of Criminology at the University of Ottawa.

“Nobody was ever held criminally responsible for the Westray disaster despite the fact that it was a clear example of negligence, of a failure to follow health and safety rules,” Bittle told Corporate Crime Reporter in an interview last week. “There was a public inquiry, but nobody was held criminally responsible.”

“The case touched a nerve across Canada, particularly within the union movement. They took up the torch to push the federal government to introduce new laws, to better deal with these kinds of situations. You had these cases of negligence. Nobody intended for anyone to be killed. But when you look at the circumstances, it’s hard to believe that someone couldn’t see this coming.”

“In fact, the inquiry report into the disaster was called — The Westray Story: A Predictable Path to Disaster.

The Westray Mine Law was passed in Canada in 2013 — an effort to hold corporations responsible for worker deaths.

“There was a long process of reform before these laws were ever introduced. That is something you see quite often. On street crime, politicians trip over themselves in an effort to impose laws and increase enforcement. The process leading to what we call the Westray Bill was long, protracted, there was a lot of discussion and debate about whether we should be criminalizing corporations, how can we ever hold people to account for something they didn’t intend to happen. All of this was part of a discussion that led to this kind of law.”

“People wanted laws to hold senior executives and boards of directors to account for failing to take safety seriously enough in a way that prevented these kinds of negligent or reckless situations from happening.”

“When the Westray inquiry recommended criminal laws in this area, it said the criminal laws should be aimed at senior executives and members of the boards. We went from that to laws in the end that sought to hold the corporation to account. The laws do not expressly relate to the role of individuals, but to the organization itself.”

“Individuals can be held to account under the normal rules of criminal laws. But that’s a difficult thing to do.

Something happened along the way when I first undertook this research.

“Since the bill was passed in 2004, there have been perhaps a half a dozen guilty pleas or convictions and maybe 18 to 20 charges laid against corporations.”

“And that’s despite the fact that we continue to see about 1,000 people who are killed or die as a result of a workplace incident annually. Not all of those incidents are the result of some form of negligence. But it stands to reason that there are a lot more cases that can be brought. When we do see charges and convictions, we see them with very small, mom and pop companies.”

“The owner of the company is probably also an operator or worker at the company. There is very little difficulty tracing the kind of chain of command to see who knew or should have known what was going on in the company. And that is something very different from what people had in mind when they were pushing for law reforms. They were interested in these large complex corporations in which those who make the decisions get to decide how workplaces are run and hide behind the corporate veil.”

“In one case here in Quebec, the owner of a small landscaping company was driving a backhoe that hadn’t been maintained properly for years. He ran over and crushed a worker against a wall. The worker happened to also be his brother-in-law.”

“Charges were brought in that case. Those are the kinds of cases where we are seeing the law applied.”

What about big company cases where perhaps the law should be applied but isn’t?

“You are probably aware of the Lac-Megantic rail disaster. That was the runaway train that derailed into the small village of Lac-Megantic. It was an unmanned train that had been parked at the top of a hill at the end of the day. The brakes let go, the train went into the town and exploded. About 50 people were killed.”

“There had been criminal charges laid against lower level managers. And we would probably have seen those kinds of charges before these laws were introduced. There were no charges against the company or against the owner, who was not a very sympathetic figure.”

Why no charges against the company or the owner?

“The criminal law is just not very good at dealing with these complex matters. The criminal law is used to dealing with mens rea – the guilty mind. It’s hard to hold somebody who was not immediately involved to that criminal standard. That criminal standard we can understand for traditional street crimes. But at the same time, these matters of corporate violence don’t fit the mold.”

States in the United States have brought manslaughter charges against companies where workers have been killed. Why not in Canada?

“That’s a question that people continue to ask. That standard of negligence is difficult to prove. Crown prosecutors, when they are applying their charge standards, look at these cases and conclude that there is not a likelihood of conviction. My argument is that standard was historically applied to street crimes, like someone who goes in to rob a grocery store with a gun. The smoking gun is in the person’s hand. Also, in Canada, criminal law is a federal matter. And provincially, we have strict liability health and safety administrative laws. And many of those administrative laws come with significant administrative fines.”

“For a worker death, a company might get charged with failure to ensure proper training standards or failure to ensure proper guard mechanisms on a production line. They are referred to as inchoate offenses.”

“I argue that there is a built in incentive for prosecutors to take the path of least resistance. They have all kinds of decisions they need to make. They have limited budgets. They are not equipped to proceed with prosecutions under these types of offenses.”

“They are faced with a decision to proceed with an administrative case under strict liability or get bogged down in a lengthy criminal proceeding against sometimes a large corporation with deep pockets that is able to resist the charges against them and I’m not even convinced that I am going to win.”

Have there been criminal manslaughter charges brought against big companies — like the one here in the United States against Ford Motor Company for manslaughter in the Ford Pinto case?

“I can’t think of any case similar to the Ford Pinto prosecution. Why not? We can say broadly that there is just not the motivation to do so. Canada has a reputation for being soft on corporate crime in general. We are a country that doesn’t want to scare away business. We want to attract business as much as we can. We are a resource economy historically and those resource companies have been powerful players in the political system. There is that big question.”

“But again, it is the question of the standard of negligence. If you are going to hold the corporation to account, the prosecutor will have to show that a senior person within the organization knew or should have known about the offense. And if they can reach that standard — and in cases of manslaughter that standard is quite high — then they can impute responsibility to the corporation. It is somewhat similar to vicarious liability in the United States. But the person has to play an important enough role in the company that they can represent the mind of the company.”

“If we do see manslaughter charges in big companies, they are against lower level workers, or maybe some of the managers directly involved in the case.”

“When the Westray bill was being discussed, one suggestion was that Canada look to the Australian model — it was a corporate culture model. Under the corporate culture model, if there are ingredients within the company that show an indifference to safety, if there is a culture of indifference within the company that can be associated with a particular incident, then you can use that as a basis to hold the company criminally accountable.”

“When that idea was floated here in Canada, it was a non starter. The companies argued it was way too vague and we couldn’t get the best and brightest in the corporate world to be on boards of directors or directors — they referred to it as director chill. They were concerned that we would scare companies away from Canada. And they argued that you are trying to hold people to account for something that nobody intended to do. As a result, we ended up with a law that doesn’t change much from the previous criminal law in this area.”

How do you compare the United States to Canada when it comes to criminal prosecution of worker death cases?

“I was recently in the United States conducting research on that question. Corporate power is all that much more present in the United States in ways that we can’t even imagine in Canada. There is even more reluctance to move against corporations criminally in the United States today given that we are in such a perilous economic state. People are more concerned with holding on to what they have. This idea that we are going to start charging companies is even more difficult within this context of austerity.”

“There is also a structural problem in the United States. Prosecutors at the state level are the ones who are going to bring criminal charges for worker deaths. And there are some real disincentives to bring those cases.”

“At the federal level, the laws are weak and not well enforced.”

[For the complete Interview with Steven Bittle, see 30 Corporate Crime Reporter 30(13), July 25, 2016, print edition only.]

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