Private prosecutions could bring public pain for employers

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Laws are made by governments and it’s government representatives, such as police and prosecutors, who generally bring charges for breaking those laws upon the lawbreakers. However, what happens if a private party believes another has broken the law and should be charged?

Private parties can bring a case before the courts in an attempt to launch a private prosecution, but it’s rare for this to happen and even more rare for it to be successful. If Crown attorneys don’t believe there are sufficient grounds for charges or prosecution, it’s unlikely a private party can convince the courts differently. However, the United Steelworkers Union is kicking up a fuss in British Columbia that, though unlikely to succeed, could open a can of worms for employers.

On Nov. 17, 2004, Lyle Hewer, a sawmill worker for Weyerhaeuser, was killed after falling into debris in a machine that converts wood waste to chips. It came to light that Hewer knew the situation was dangerous, but his supervisor asked him to clear it out anyway. Worksafe BC determined nobody at the mill did anything to make things safer until after the accident.

In March 2007, WorksafeBC fined Weyerhaeuser $297,000 for health and safety violations that contributed to Hewer’s death, the highest fine it had ever imposed against an employer. Police also recommended to Crown prosecutors that the company be charged under the Bill C-45 amendments to the Criminal Code, which impose criminal penalties on corporations that fail to protect the health and safety of their employees and the public. However, after looking at the case, B.C. prosecutors declined to pursue a criminal case.

The steelworkers union didn’t agree and felt Weyerhaeuser was criminally negligent and deserving of charges under the amendments. It launched its own private criminal prosecution proceeding against the company, urging the province to re-open the case.

It’s clear from the fine Weyerhaeuser received that it had a role in Hewer’s death with lax safety procedures. But the company was fined a large amount and the Crown, after looking at the case, felt that was sufficient. Should a private party such as the union be entitled to bring the matter before the courts again?

The B.C. criminal justice branch has a policy of not allowing private prosecutions to proceed — if it feels one has merit, it takes over the prosecution. It’s likely most other jurisdictions have similar policies, because allowing private prosecutions could open floodgates that might be better off closed.

If this private prosecution were to succeed, it would open the door to similar actions. The judgment of Crown prosecutors, rather than being the final word, could become another obstacle to overcome for someone with an agenda. This would be of particular concern for employers in circumstances such as this, where a workplace accident or death would often be motivation for someone to pursue punishment beyond a fine or other sanctions, especially with the Criminal Code amendments hanging like a sword over an employer’s head.

There would also be an issue with clogging up the courts if more cases were brought to court by private parties after the Crown was done with them.

If the courts find merit in the Steelworkers’ push, employers better be prepared for messier fights in the aftermath of workplace health and safety violations.

What do you think about private prosecutions? Join the conversation by posting a comment.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit http://www.employmentlawtoday.com.

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