Introduction
This article interrogates the mentalities and sensibilities (Garland Reference Garland1990) that govern historical and modern policies on deaths and injuries in the workplace. To do this, we analyze key texts, documents,Footnote 1 and allied discourses that constitute the regulations and laws that govern “safety crimes,” defined by S. Tombs and D. Whyte (Reference Tombs and Whyte2007) as “acts of commission or omission by employers that imperil the health and/or safety of their employees.” Understanding the constitution of workplace “accidents” is crucial to understanding the ideological components that shape governance in capitalist societies. The article investigates this by empirically analyzing “the authorities [that] govern the conduct of citizens in different sites, in relation to different objectives,” the discourses they employ, and how these factors “reinforce shared understandings of who is to be governed, by whom, how and why” (Rose, O’Malley, and Valverde Reference Rose, O’Malley and Valverde2006, 85). This analysis, then, will identify the discursive and substantive factors that link class, corporate power, and the “common sense” ideas that shape workplace “accidents” in Canada (and indeed, it appears, most capitalist, Anglo-American countries today) (Braithwaite Reference Braithwaite2005; Tombs and Whyte Reference Tombs and Whyte2007).
The texts and documents constructing safety crimes vary by time and location and are constantly being reworked and re-negotiated, substantively and discursively. To chart the complexities in this social matrix, it is therefore essential to situate any study within a nation-state and historical period. This study focuses on Canada for three reasons: first, Canada has fashioned a distinct if not unique governance structure by modelling (copying, rejecting, and altering) British, French, American, and increasingly global/international laws; second, it is a federated state where workplace health and safety is governed by both provincial and federal legislation, institutions, and actors; and third, federal legislation criminalizing certain kinds of workplace “accidents” is now a decade old, so ten years of data showing how law has been translated into policies governing individuals and organizations is now available.
What can and what cannot be said, and what is and is not accepted as factual (and therefore available for use in policy discussions) is highly contingent on one’s access, or lack of access, to particular texts (Rosso Reference Rosso2014), and these must in turn be situated historically, spatially, and in socio-cultural context. Texts only become “real,” and meaning manifest, through the interaction and/or networks of social actors. The relevant texts and documents for this study were legal texts, actors wishing to influence the content of these texts, and those charged with translating the intentions of the legal terms into policy. Methodologically, then, this article examines political rationalities—the “discursive fields within which the exercise of power is conceptualized,” their justifications, their “conceptions of the proper distribution of such tasks” (Miller and Rose Reference Miller and Rose2008, 55)—and governmental technologies—the “programmes, calculations, techniques, apparatuses, documents and procedures” (Miller and Rose Reference Miller and Rose2008, 55).Footnote 2
Contrasting different ways of thinking about apparently similar acts is a useful methodological tool. In this article, we draw on driving offences, namely drunk driving and dangerous driving causing death, to highlight the unique rationalities that govern safety crimes. In so doing, our goal is not to judge the “effectiveness” of motoring laws, but instead to interrogate the socio-cultural factors that produce very different regulatory regimes for safety crimes versus driving offences, despite their similarities (Pearce and Tombs Reference Pearce and Tombs1990). There are several reasons why we consider safety crimes and driving offences to be interesting and appropriate analogues. For instance, both are socially harmful—but typically unintentional—acts of human negligence that occur in activities generally recognized as necessary and legitimate, the driving of vehicles and the production of goods and services. This comparison therefore departs from traditional comparisons of safety crimes with street crimes, which can create challenges analytically when considering acts with such different motivations and intentions. After all, regardless that crime is socially overdetermined, street crimes are, at least in dominant terms, socially unproductive and, by their very definition, illegal. What is more, despite the socially productive label accorded both driving and working, they nevertheless generate considerable harm and suffering. Each year in Canada, approximately 1,000 workers are killed as a result of a workplace incident or illness, while hundreds of thousands of workers are forced to miss work as a result of an injury or illness that they sustained on the job (Sandborn Reference Sandborn2012).Footnote 3 In comparison, roughly 2,000 people are killed annually in automobile collisions and thousands more drivers and passengers suffer serious injuries requiring hospitalization (Transport Canada 2014).Footnote 4 As we shall see, however, despite the considerable harms associated with both activities, safety crimes generally are depicted in legal discourses as accidents, non-criminal breaches of particular regulations to be penalized through administrative penalties such as fines, while driving offences that lead to injury and/or property loss are seen as culpable, potentially criminal events best enforced by police officers and penalized by everything from fines to licence suspension to incarceration. What is more, while the driver is governed by an entire structure of administrative and criminal laws that hold him/her responsible, the combination of these same legal categories, when applied to safety crimes, are deemed in law and discourse to be incommensurate and, as such, major impediments to criminalizing negligent employers. Exploring the discursive conditions that make it possible to hold bad employers, whose negligence often causes multiple deaths (a mine explosion, for example), to a different standard than bad drivers is an important goal of this article.
Before proceeding, however, we must deal with the proverbial elephant in the room, the factor that is always identified as the major cause of the lax enforcement of safety crimes: the issue of identification. The drunk or dangerous driver is typically caught “in the act” and is “obviously” the offender. In a corporation, even a small one, assessing responsibility is more complex. Does it reside in those who profited from negligence, the owners (shareholders if publicly owned) or managers? If the latter, which managers? Is it the corporation itself that bears responsibility for the offence—the limited liability organization that senior executives and board members regularly invoke in order to avoid personal responsibility (Glasbeek Reference Glasbeek2002)? Our argument is that much of this complexity is legally and socially shaped by business interests, with the worldview or common sense of corporate capitalism significantly shaping the development and enforcement of new laws affecting corporations and corporate actors (Snider Reference Snider2009). Moreover, capitalist societies cling to the fiction that workers are free to choose their workplace and therefore voluntarily assume this risk. The traffic victim, conversely, is seen as having risk thrust upon him/her, she is an unwilling victim. While drivers involved in accidents are forced to supply the evidence that convicts them—refusal to provide a breathalyser sample or to cooperate with police is an offence in itself—industries are only required to provide evidence in the context of regulatory investigations (they quickly “lawyer-up” in criminal investigations) and are never forced to install cameras to record what actually goes on in the workplace. In fact, corporations often get advance warning of safety inspections and construct what G.C. Gray (Reference Gray2009) refers to as “Potemkin Villages,” whereby some corporations will make it appear to regulators that they are complying with occupational health and safety standards. They may, for example, clean up problematic work areas or temporarily shutter defective machinery just prior to workplace inspections, even though the company’s day-to-day practices are anything but compliant and safe. Certainly the automobile driver does not get the same advanced warning that they might be subject to the state’s surveillance, and they most certainly cannot hide behind a legal fiction—no blaming their automobile as its own legal individual!—in order to avoid responsibility for their negligence.
The first section of the article probes the roots of these discursive understandings by examining the historical origins of workplace health and safety regulation contrasted with driving offences. The second section looks at the rationalities, texts, and documents that shape which actors get sanctioned for which acts, contrasted with those employed to sanction driving offences. The concluding section assesses workplace law by situating it within its broader social-political-economic context; that is, in the very conditions that, we argue, make it “sensible” for state actors to treat safety crimes as primarily non-criminal “accidents.”
The Regulatory Landscape
This section looks at the passage of laws, entry requirements and the assumptions and discourses that govern safety crimes.
Law Passage
Historically, efforts to govern all offences by corporations have been cyclical, with each corporate disaster bequeathing a “regulatory legacy” (Haines and Sutton Reference Haines and Sutton2003). Mine explosions (Glasbeek Reference Glasbeek2002), factory fires (Haines Reference Haines2003), chemical leaks (Pearce and Tombs 1998), oil spills, and the now-forgotten collapse of savings and loans institutions in deregulated 1980s America (Calavita, Pontell, and Tillman Reference Calavita, Pontell and Tillman1997) all produced “get tough” rhetoric and law. However, these legislative commitments typically are short-lived, with new regulations quickly fading into the background and regulators retreating from pro-enforcement positions, at least until the next crisis occurs (Snider Reference Snider2015).
Consistent with this scenario, the disaster that led to the introduction of safety crimes legislation in Canada was the killing of twenty-six miners on 9 May 1992 in an underground explosion at the Westray Mine in Plymouth, Nova Scotia. The public inquiry into the disaster characterized it as “foreseeable and preventable,” revealing that management had been warned over fifty times prior to the explosion about workplace health and safety violations, all of which were ignored (Richard Reference Richard1997). Responding to outrage over the fact that no one was ever held to legal account, the report recommended that the federal government enact new legislation “…to ensure that corporate executives and directors are held properly accountable for workplace safety” (Richard Reference Richard1997, 600–01). Six years later the Westray bill, marking the first time that special rules to facilitate corporate criminal liability became part of the Criminal Code of Canada, was introduced.
Coincidences of timing and broader economic circumstances were also important in propelling corporate crime onto the political agenda. Debates over the Westray disaster were ongoing when the 2002 stock market bubble burst and the collapse of Enron, Worldcom, and other “blue-ribbon” corporations ignited public anger at corporate greed. The increased visibility of the failures and contradictions of neoliberal policies spawned renewed interest in Keynesian styles of state intervention (Resnick and Wolff Reference Resnick and Wolff2010), in Canada and elsewhere.
However, despite public concern, it was more than six years after the Westray inquiry report, and ten years after the disaster, before the Westray bill was introduced. In addition, this legislation would probably never have passed without the constant lobbying efforts of union officials and opposition Members of Parliament (MPs). The persistent, collective efforts of the (then) opposition Progressive Conservative (PC) Party (Westray was located in a PC riding), the labour-oriented New Democratic Party, and the union representing the surviving Westray workers (the workers unionized shortly after the disaster) were all essential (Bittle Reference Bittle2012). This absence of political will has no parallel in the context of driving offences, as we shall see.
The legislation was no sooner introduced than powerful politicians (both centre and right-leaning) began downplaying the gravity of safety crimes, minimizing their impact on workers and narrowing the reform options to be considered (Bittle and Snider Reference Bittle and Snider2006). Many MPs and witnesses at parliamentary committee hearings on the bill sought to retain the very notions of individualized guilt that had made past legislation so ineffective. They also denigrated the concept of corporate culture—wherein a company could be held criminally liable if management allowed or encouraged a corporate culture that facilitated law violation or avoidance (Department of Justice 2002)Footnote 5 and railed against any suggestion that the profit imperatives of private companies make it “sensible” to put workers at risk if this is the cost-minimizing alternative to compliance (Glasbeek Reference Glasbeek2013). Indeed, legislators repeatedly warned that an “overly harsh” law would cause “director chill,” or “capital flight,” inducing corporations to desert Canada for friendlier legal climes. The belief that corporations are an unequivocal good, a vehicle for realizing our collective social and economic well-being, permeated the entire law-passage process.
In contrast, new laws criminalizing driving offences have sped through the legislative process—since 2006, five new criminal offences against drunk and dangerous driving and, most recently, street racing, have been passed (Stribopoulos Reference Stribopoulos2007). Moreover, the severity of punishment—maximum fines and longer terms of incarceration—has been continually increased (Linden et al. Reference Linden, Mann, Smart, Vingilis, Solomon, Chamberlain, Asbridge, Rehm, Fischer, Stoduto, Wilk, Roerecke, Trayling and Wiesenthal2010), as have police and court powers to punish. Discretionary powers to exercise lenience, on the other hand, have been consistently removed through devices such as minimum sentencing requirements. One of the most dramatic contrasts has been the effectiveness of victims’ lobby groups—politicians who minimized the injuries of workers and resisted the entreaties of union representatives were very receptive to the punitive agendas of lobby groups such as MADD (Chamberlain and Solomon Reference Chamberlain and Solomon2012). Punitive measures here have been complemented by new non-criminal measures:Footnote 6 for example, provincial statutes lowering speed limits, the use of speed bumps, minimum blood-alcohol concentration provisions for young drivers, and mandatory safety inspections for vehicles.
In addition, Criminal Code provisions relating to the dangerous operation of a motor vehicle are much more specific, there is no comparable wiggle room, second chances, or concern with intentionality here. (And certainly no worry about “driver chill”!) A person is potentially guilty of an offence if he or she operates a motor vehicle in a manner that is “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place” (Section 249(1)(a) Criminal Code of Canada). The Crown must prove a marked departure from the manner in which a reasonable person would conduct him/herself in the accused’s situation (see R v Beatty 2008 SCC 5). Breaching this provision is an indictable offence punishable up to a maximum of fourteen years in cases involving death. For cases involving negligent operation of a motor vehicle, the Crown must prove that a driver’s actions resulted in another person’s injury or death and that a “responsible person” would have foreseen this happening (Canadian Encyclopedic Digest 2008; Roach Reference Roach2000).
Entry Requirements
Securing permission from the state to establish any business is a complicated procedure that varies according to the size and type of industry (manufacturing, mining, selling financial services, etc.). In addition, different regions and states establish different rules—some are much more stringent than others. Thus generalizations are always precarious. Mindful of this, the following discussion will focus on the generally accepted principles, not the specificities of any particular regime.
All public corporations—those that seek to raise investment capital by selling stocks on a public exchange—must file a prospectus disclosing certain material facts with both governmental regulatory agencies and self-regulatory organizations (such as stock exchanges). Proving one’s competence to operate a company safely, however, is not required to get listed—stock market regulators focus on ensuring that the firm has sufficient operating capital, has disclosed all its liabilities and assets, and that its capital was legally obtained. Setting up a private firm is far less complicated—one must name the owners and directors and pay the required fees. Most businesses choose to incorporate to secure the tax advantages and benefits of limited liability. This privilege, first codified in English law in 1856 (embedded and confirmed in 1862), restricts the liability of each share purchaser to no more than the amount he or she has invested. If the company goes broke, the personal assets of the investors—their houses, cars, yachts, and other income streams—cannot be seized.
A charter to incorporate was originally a privilege granted by a nation-state for a fee that came with a detailed set of responsibilities. No more. States today compete to entice businesses by offering the most generous grants, tax holidays, and forgivable loans. In addition, global capitalism allows business to regime-shop, to seek states with the fewest or weakest unions (or none at all, the rationale behind “right to work” laws), the loosest safety standards and environmental regulations (Michalowski Reference Michalowski2009). Nor is a corporation required to have sufficient insurance to ensure that its creditors, employees, or pensioners are compensated should the company go bankrupt.
Although entry requirements to operate a vehicle also vary by state jurisdiction, they are generally much more onerous. One must prove competence to drive through compulsory state-administered tests. In most jurisdictions the right to drive must be re-established after a certain age (typically over eighty), and the privilege can be revoked temporarily or permanently if the licence holder has accumulated a certain number of “demerit points” for infractions or has a record as a serious and/or frequent offender. Sufficient insurance to ensure that victims of driver negligence are not cheated because of an offender’s inability to pay medical or repair costs is compulsory—no limited liability provisions are available for negligent drivers.
The Prevailing Discourses
From the Industrial Revolution on, workplace injuries and death have been conceptualized as accidents, the unavoidable by-product of capitalist production. Workplaces are depicted as “naturally” risky spaces, workers are seen as free to choose “safe” workplaces, and if they do not, they freely assume risk, and workers’ compensation laws are “no-fault.” Despite two centuries of struggle by workers’ groups and other activists (Whyte Reference Whyte and Tucker2006), laws sanctioning employers were introduced only when public discontent threatened the economic and political elites of the era (Snider Reference Snider2015). This legacy has produced a regulatory system that sees persuasion and education as the remedies of choice for negligent employers, and turns to criminal law only as a last resort.
As others have documented (Tombs and Whyte Reference Tombs and Whyte2013) and our research confirms, discourse around safety crimes is permeated by a set of hegemonic “common sense” assumptions that position private sector industrial production as an unadulterated, indisputable “good thing.” The Keynesian notion of the 1960s and 70s that the state is responsible for protecting workers against bad employers has been replaced by neoliberal discourses that “responsibilize” workers, treating them as “partners” with management with mutual goals and equal responsibility for worker safety (Tombs and Whyte Reference Tombs and Whyte2007). Thus in many jurisdictions employees have been given the right—and the obligation—to refuse unsafe work (Tucker Reference Tucker2012). This construction of reality is rooted in the aforementioned assumption that workers freely choose and voluntarily assume workplace risks. The power differential between employers and employees, the limited employment options, and the fact that employees who refuse work can be rendered superfluous in any number of ways: these facts are ignored (Gray Reference Gray2009). So is the fact that the entire structure of corporate law and limited liability exists to shield high-level corporate executives. As Dave Whyte (2009, 64) notes:
When a death of a worker ends up in court … it is generally the abstract form, the legal fiction of the corporation, or organisation that is in the dock, rather than any human director … The result is that … [the few prosecuted cases]… are conducted in a way that upholds a principle of impunity for the human perpetrators of those offences.
The contrast between these assumptions and those shaping driving offences could not be starker. The discourses of deregulation and decriminalization are completely absent when the state considers driving regulations. Driving is seen as a risky activity (like mining), but those responsible for causing injury and death are held both administratively and criminally responsible. The “privilege” of operating a motor vehicle is attained by passing a series of tests and can be withdrawn for failure to follow the rules of the road. For offences such as impaired or dangerous driving causing bodily harm or death, criminal sanctions can be given without the need to establish mens rea by proving that the accused intended to or knew that their actions could result in bodily harm or death (Roach Reference Roach2000).
The overlap between provincial regulations and criminal law on impaired driving also contrasts sharply with safety crimes. Some provinces, for example, have administrative penalties that allow police to seize the vehicles of repeat impaired drivers or those driving while their licence is suspended; some practice zero tolerance for alcohol levels in novice drivers. These measures exist alongside Criminal Code offences relating to impaired driving—they are seen as complementary, not conflicting (Parliament of Canada 2009).
Parsing the political rhetoric surrounding street racing laws in 2006 highlights the priority accorded to recklessness in drivers. Politicians supporting stricter legislation proclaimed that street racing posed a serious threat to innocent children and families and that criminalization would send a clear message that racing cars on public streets is not a “game.” In a speech bemoaning the “plague” of crime in Canadian society, Prime Minister Steven Harper referenced his government’s street racing law as an important step towards making our streets safe.Footnote 7 But street racing has produced fewer than 7 deaths per year from 1999 to 2006, while working for a living generates approximately 1,000 workplace fatalities per year (and thousands more serious injuries) among equally innocent “children and families.”
These “tough on crime” sentiments stand in stark contrast to the anti-regulatory, neoliberal-inspired rhetoric that politicians frequently employ in their rush to downplay the need to regulate corporations. In recent years, for instance, the federal Conservative government has undertaken an anti-red-tape initiative that characterizes regulations as “irritants for business” and which promises to eliminate an existing regulation every time a new one is proposed, paying bureaucrats bonuses for adhering to this “one-in-one-out” rule (Red Tape Reduction Committee 2012). Further evidence of this profit-first, anti-regulatory mentality can be found in Prime Minister Harper’s recent comment that new regulations concerning greenhouse gases in the “oil sands” would be “crazy economic policy” at a time when there is so much global economic instability in the oil and gas sector (McCarthy Reference McCarthy2014). Coupled with the fact that we are still in full austerity mode—a decision that reinforces the neoliberal myth that private enterprise is the answer to all our problems (Fanelli and Evans Reference Fanelli and Evans2013)—there is little space for seriously discussing and debating the need to “crack down” on corporate crimes.
The Enforcement Record
This section examines the enforcement record for safety crimes since the enactment of the Westray Bill in 2004. In the ensuing decade there have been approximately fifteen charges,Footnote 8 leading to three convictions and two guilty pleas. None of these cases involve senior executives and board members, and none have targeted major corporations—although these, because of their size and significance, cause the most harm. Instead, prosecutions have targeted small, independent companies: for instance, the owner-operator of a landscaping company was found guilty of criminal negligence causing death when the improperly maintained backhoe that he was operating crushed a worker to death (Workers’ Health and Safety Centre 2011). Five years earlier a manufacturer of concrete patio blocks with fewer than 100 employees pled guilty to criminal negligence causing death after an improperly guarded machine that stacks concrete stones onto wooden pallets crushed a worker to death (Edwards and Conlin Reference Edwards and Conlin2006). In 2012, another small company, Metron Construction, pled guilty to one charge of criminal negligence causing death after five of its workers plummeted thirteen floors when a swing stage scaffold broke in half, killing four of the workers and leaving the fifth with debilitating injuries (Keith Reference Keith2011).
The president of Metron, Joel Schwartz, pled guilty to four (non-criminal) provincial Occupational Health and Safety Act offences and received a $90,000 fine, while the corporation pled guilty to one count of criminal negligence causing death and was fined $200,000 (Edwards Reference Edwards2012). The fine against Metron was subsequently increased to $750,000 after the Ontario Court of Appeal ruled that the original sentence was “manifestly unfit” and that the trial judge erred in relying on provincial health and safety case law in calculating the criminal fine (Archibald, Jull, and Roach Reference Archibald, Jull and Roach2014; Chevalier and Kmiec 2013; R v Metron 2013 ONCA 541). In this situation, and regardless of the appeal decision,Footnote 9 it was the corporation alone—not the senior executives or board members who ultimately profited from the offence(s)—that faced criminal charges. This legal privilege, popular for safety crimes but unknown in negligent driving cases, reinforces the legal fiction of limited liability that maintains that the corporation, not the individuals hiding behind the legal fiction, made the negligent decision that killed the worker. And while there is some value in finding a company criminally responsible for killing workers and/or members of the public—corporate reputation does matter (Braithwaite Reference Braithwaite2005)—this practice overlooks the fact that corporations change names and ownership and declare bankruptcy when it is to their advantage (Norrie Reference Norrie2001).
Also in sharp contrast to driving offences, the enforcement of safety crimes is impeded rather than reinforced by the existence of well-established (if not necessarily well-enforced) sets of provincial regulations. In this kind of “bifurcated model of criminal process” (Tombs and Whyte Reference Tombs and Whyte2007, 110), attempts to assimilate corporate wrongdoing into the criminal law have developed alongside a separate, non-criminal means of dealing with health and safety offences. This means there is little incentive for Crown prosecutors, both ideologically in terms of the prevailing belief that safety crimes are not “real” crimes, and legally because of the lower legal standard of proof associated with strict liability offences (Norrie Reference Norrie2001), to launch complex criminal cases. However, as W.G. Carson (Reference Carson, Geis and Stotland1980) demonstrated when describing the enforcement of the first Factories acts in the United Kingdom, these difficulties are an artefact of corporate power, a consequence, not a cause, of barriers to enforcement. The legal complexities are created by corporate ability to shape and resist new laws, to obstruct or ignore the decisions of regulators and to use precedent to shape court decisions in their interests.
This does not suggest that Crown prosecutors consciously manipulate and/or misapply the law; it suggests, rather, that law and legal actors are not immune to the social-cultural beliefs—the habitus of law (Bourdieu Reference Bourdieu1987)—that remains fixated on individualized notions of guilt, beliefs that downplay the seriousness of safety crimes and the need for criminal prosecution. In this respect, the criminal justice apparatus is ideologically positioned to maximize the harmful acts of drug dealers, gang members, and street racers while minimizing the crimes of corporate actors (Glasbeek Reference Glasbeek2002).
Our interviews revealed that many criminal justice actors, particularly Crown prosecutors and corporate lawyers, work from the premise that any investigation of a breach of provincial occupational health and safety (OHS) law, such as a death in the workplace, must be kept separate from any criminal investigation by police of the same incident (in the rare occasion where police are involved).Footnote 10 According to these officials, this distinction stems from the concern that OHS inspectors can compel corporate actors to cooperate with their investigation (e.g., provide testimony and corporate documents), while the right to remain silent is sacrosanct in criminal law. As such, there are different burdens of proof associated with administrative and criminal law cases—the former being of the strict liability variety while the latter adheres to the principle of beyond a reasonable doubt. Many Crown and defence lawyers therefore believe that it would be unfair (even unconstitutional) for OHS inspectors to interview witnesses and suspects and collect evidence for a regulatory investigation only to decide mid-stride that the case should be handed off to the police as a criminal matter. This distinction reflects the historical differentiation of corporate crime from individual crimes that justifies responding to corporate offences primarily through non-criminal rules and regulations (the dominant trend historically), versus the assimilation of corporate deviance into criminal law by adjusting existing laws in an attempt to account for the serious crimes committed by corporations (Norrie Reference Norrie2001; Tombs and Whyte Reference Tombs and Whyte2007). Never the two worlds should meet, states this orthodox legal script, and we should therefore go to great lengths to ensure that criminal proceedings are not “contaminated” by the lower standard of proof associated with provincial OHS laws.
In practical terms, this means that OHS inspectors and police operate in silos, each interviewing its own witnesses and suspects to determine if respective administrative or criminal charges are warranted. Alternatively, if health and safety inspectors suspect that a case involves criminal negligence, they must make a recommendation to the police, who, if they accept the regulator’s assertion, start their own investigation from the beginning and without directly inheriting any of the results from the OHS investigation. This is a cumbersome and expensive process. Consider, for example, the case of Lyle Hewer, a worker who was killed at a Weyerhaeuser sawmill in New Westminster, British Columbia, in 2004 while cleaning debris from a grinding machine that converts wood waste to chips. After investigating the incident, the provincial regulator, WorkSafe BC, recommended that the police investigate the case for possible criminal negligence. The subsequent police investigation required them to re-interview witnesses and subpoena company documents. Their recommendation that criminal charges be brought was subsequently rejected by the Crown on the grounds of insufficient evidence (Lau Reference Lau2011).
A similar scenario unfolded in the Metron case: the Ontario Ministry of Labour inspectors conducted their own investigation separate from the Toronto police. The Toronto police took the unusual steps—“unusual” because it is rare for police to investigate these types of incidents as criminal offences—of undertaking a complex investigation that included interviewing witnesses and suspects, examining corporate internal documents, securing evidence from the crime scene (e.g., the broken scaffold) and hiring experts to testify about the safety of the workplace and the integrity of the materials used to construct the swing-stage scaffold. While this prosecution was successful, it is easy to see why, given the expense of two separate investigations, police and Crown prosecutors might prefer the administrative option. The chasm between safety crimes and “real” crime is thus reinforced.
The ideological nature of the belief that OHS and corporate criminal liability investigations must be kept separate is best revealed by examining the investigation of driving offences. Here, courts and legal officers have decided there are many ways to breach the divide between regulatory and criminal law. Governments have considered the massive injuries and deaths connected with driving and decided to use overlapping administrative and criminal procedures. Thus provincial governments apply non-criminal rules (speed limits, traffic controls, rules differentiated by driver age, mandatory safety inspections for vehicles), while federal governments apply criminal laws on drunk and dangerous driving and, as noted earlier, street racing (Stribopoulos Reference Stribopoulos2007).
So it is common practice for a police officer who pulls over a vehicle for speeding, which is a regulatory offence under the Highway Traffic Act, to also lay criminal charges if the driver appears impaired. The Supreme Court of Canada decision R. v Nolet (2010 SCC 24) also confirms the link between regulatory and criminal investigations, at least within the context of motoring offences. In that case, a police officer stopped a transport for a “spot check,” as per the Highway Traffic Act, which revealed that the vehicle’s registration had expired. Upon questioning the driver and further inspecting the vehicle, the officer found a bag containing $115,000 in cash and a hidden compartment with 392 pounds of marijuana. The accused, who was arrested and charged with various criminal offences, argued that his Charter rights were violated because police never obtained a warrant to search the vehicle’s trailer. The defence argued that, once the police believed the offence had graduated from a regulatory to a criminal investigation, they should have operated under the established rules of criminal law, by, for example, obtaining a search warrant and respecting the accused’s right to remain silent and consult legal counsel. The Crown appealed the case to the Supreme Court of Canada, where the majority decided that it was reasonable for the police officer to search the vehicle as part of his regulatory duties and that it was, therefore, incidental that a criminal investigation ensued. No problem breaching the divide between administrative and criminal law here—in the Court’s eyes it was reasonable and legally appropriate for the two investigations to unfold concurrently. For motoring offences, then, there is an explicit and accepted alliance between administrative and criminal law authorities.Footnote 11
The Westray bill’s enforcement is further impeded by the legal orthodoxy of criminal negligence standards, which would have us believe that negligence is uniformly applied under the law when it is in fact socially (over)determined (Norrie Reference Norrie2001). Two key elements limit the application of criminal negligence: first, the bill actually widens criminal responsibility by requiring the Crown to prove only that “a senior officer” (an individual with an important role in setting policy or managing an important unit within the organization) should have taken “reasonable” steps to prevent the offence (Department of Justice Canada 2003). Thus prosecutors no longer have to “prove fault in the boardrooms or at the highest levels of a corporation” (Archibald, Jull, and Roach Reference Archibald, Jull and Roach2004, 48). Second, for offences based on negligence, the Westray bill specifies that an organization can be found guilty if the Crown can prove that “employees of the organization committed the act and that a senior officer should have taken reasonable steps to prevent them from doing so” (Department of Justice Canada 2003, 6). The senior officer must have “departed markedly” from standards that could reasonably be expected to be followed to prevent the employee from committing the offence (Criminal Code, s 22.1; Archibald, Jull, and Roach Reference Archibald, Jull and Roach2004, 385).Footnote 12
However, as cases such as Metron illustrate, the legal concept of negligence remains a significant roadblock to assigning criminal responsibility. Prevailing legal orthodoxy insists that a high threshold must be set for proving negligence—and that this is especially difficult for corporate crimes where there are often several individuals with some responsibility for the offence. How, Crown prosecutors wonder, do we hold someone criminally responsible for something they did not do, or did not intend to do? How is the corporate executive sitting in an office or boardroom responsible for what happened at the company’s production plant on the other side of the city, province, or even country?
Proving negligence in general does require the Crown to show “inadvertence on the part of the accused,” or that he or she “negatively or passively” failed to exercise due diligence (Norrie Reference Norrie2001, 62); however, this is hardly a politically neutral decision-making process. Despite law’s claim of neutrality, the actual application of negligence is fluid and vague and, as such, shaped by the economic, political and moral interests that inform the exercise of discretion (Norrie Reference Norrie2001, 68–69). For safety crimes, the ideological basis of negligence is found in the refrain from Crown officials and corporate lawyersFootnote 13 that it is too difficult to prove this standard in cases involving large corporations and/or senior executives or board members or, alternatively, that they just do not see this level of negligence breached—there are too many intervening variables and unanswered questions within the corporate hierarchy to assign criminal negligence. However, they assert this as if the concept of negligence is immutable and without acknowledging that there is no established definition in criminal law of what constitutes competence when it comes to workplace safety, a situation which, as we note below, is very different for driving offences. And without some consideration of the unique ways in which the concept of negligence applies to corporate offences—the acts or omissions of senior executives or the corporation that injure or kill workers—the default position remains the threshold originally conceptualized and applied to traditional crimes (driving offences or one-on-one forms of violence). We are therefore left with a concept of negligence that is “…based upon observing the phenomenon and making a value judgement on it” (Norrie Reference Norrie2001, 68).
How, then, does this compare to the dominant rationalities of negligence for motoring offences? The Crown does not have to prove that a driver intended to injure someone but, instead, that his or her action resulted in another person’s death or injury and that a “responsible person,” when placed in the driver’s situation, would have known that his or her actions could have resulted in injury and/or death (Wilson Reference Wilson2010; The Canadian Encyclopedic Digest 2008). The Supreme Court of Canada has reaffirmed this position (see R v Beatty 2008 SCC 5): “In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances.”
Two issues are relevant here: first, the determination of what constitutes “reasonable” can be established in cases of negligent driving by looking at the previous behaviour of the accused, for example, evidence such as previous multiple breaches of the Highway Traffic Act might be introduced. This means, as F. Pearce and S. Tombs (1990, 432) note, that motoring regulations provide a set of competency standards that can be used to judge a driver’s carelessness or negligence. Nothing like this applies to corporate offenders where, as noted earlier, administrative breaches are seen as separate from criminal proceedings, and corporations can and do routinely breach administrative rules with little fear that this will be used against them in a criminal prosecution. Recall here that management at the Westray mine was warned more than fifty times that they were in breach of provincial health and safety rules, and that many of the risks that result in workplace injury or death are known to any “reasonable” employer. Second, the Supreme Court’s recent decision (R v Beatty 2008 SCC 5) reaffirms the necessity of establishing mens rea in cases involving penal negligence, a decision that is more conducive to directing the law’s gaze down the social hierarchy, not up. The retention of this individualized notion of negligence cannot address the complex ways in which decisions about safety are made (or not made) within the corporation.
It is thus unsurprising that the Westray bill has been applied only in cases involving small companies where there is minimal difficulty establishing individual responsibility. In Metron, for instance, it was easy to identify the site supervisor as the “senior officer” given the company’s small size (if not him, then who else?). The supervisor, who was killed in the incident, permitted the workers to use the scaffold despite an insufficient number of safety lines and despite the fact that having six workers on the scaffold (one worker survived the fall while another was clipped on to a safety line) was an unsafe load. Moreover, investigators found that he, along with the other workers, had consumed marijuana just prior to the incident (Warning, Edwards, and Todd Reference Warning, Edwards and Todd2012). In this way, the case closely resembles the “smoking-gun” scenario that fits comfortably within legal orthodoxy. Compare this outcome to the death at the Weyerhaeuser sawmill in British Columbia (the Hewer case), in which the person that might have been deemed a senior officer (the on-site supervisor) was not at the scene of the incident. This would have raised complicated legal questions for the Crown had the case gone to trial—for example, did anyone direct the worker to enter the grinding machine or did he go in on his own volition?
In the final analysis, then, although some corporations may be held responsible for their harmful acts via the Westray bill, those in ultimate positions of authority (i.e., the CEO or board of directors), those who make all major decisions and reap the greatest financial rewards, will most probably continue to escape criminal responsibility (Glasbeek Reference Glasbeek2013). The penchant for enforcing corporate crime laws through the notion of individualized guilt remains intact.
Conclusion: Rationale, Reaction, and Transformation
This article has analyzed the factors shaping the governance of safety crimes, from historical origins to enforcement. By contrasting the terrain of safety crimes with driving offences, we have shown the very different “common sense” employed by government actors to determine culpability, and the very different punishment regimes this has created.
It is clear from our analysis that a number of ideological, political, and legal factors impede the effective enforcement of corporate criminal liability law. Foremost among them is a deep-seated socio-political commitment to capitalism, a commitment that has been deepened and extended under the guise of neoliberal political and economic reasoning. This is shown in the struggle to get safety crimes defined as criminal events—the reluctance and resistance to making employers responsible for workplace conditions. This commitment is also demonstrated in the Crown’s preference for regulating via non-criminal provincial regulations instead of the Criminal Code. This is complicated by mens rea requirements that were not altered in the Westray bill, provisions that force the Crown to prove negligence in cases where workers are injured and killed.
Although the enforcement of safety crimes is impeded by dominant legal rationalities, the very different treatment accorded to driving offences suggests that law need not remain trapped within this frame. Corporate actors who knowingly or recklessly force employees into high risk situations closely resemble the impaired driver who never intended to kill anyone but put everyone at higher risk due to his/her (in)actions. Neither the drunk party nor the profit-maximizing executive knows who will be harmed (no individual victim is targeted), how serious the injuries will be, or when the “accident” will occur. But both parties know, or should know, both legally and morally, that sooner or later their actions or inactions will injure or kill. There is little justification in law (as opposed to ideology and politics) for treating the reckless or negligent decisions of the corporate executive with the “kid gloves” that characterize the policing of safety crimes (Reiman Reference Reiman2004).
Common law jurisdictions use precedent as well as legislation to align laws more closely with dominant social, political, and economic worldviews. This suggests that lawyers and social movement activists may be able to push law (and its discursive understanding) in counter-hegemonic directions. In Canada, several initiatives seeking to toughen the enforcement of safety crimes are under discussion. On 9 May 2013, the twenty-first anniversary of the Westray disaster, the Nova Scotia Federation of Labour called for the appointment of special prosecutors trained in corporate criminal negligence. Meanwhile, the government of Manitoba recently appointed its own special prosecutor and the steelworkers union launched a campaign, “Stop the Killing: Enforce the Law,” in an effort to have the Westray bill more vigorously enforced. Pressing the state to draw inspiration from the enforcement of driving offences is another avenue activists might use—perhaps lobbying to set up a demerit system for negligent employers, or to issue “learners’ permit” licences to new companies and/or to all profit-seeking entities in sectors where risks to workers and/or the environment are high.
In conclusion, this article has argued that capital (in all its guises and forms) has consistently shaped laws in directions more rather than less consonant with its interests and agendas. The corporation is legally and structurally designed, indeed required (Glasbeek Reference Glasbeek2002), to maximize profit for its owners and investors. Thus it is rational for it to prioritize revenue generation over worker/employee safety and to resist and/or downplay the state’s efforts to introduce new laws (or to enforce existing laws) that add to the costs of production. And it is rational for the state to keep the corporate sector “onside,” given the heavy political, financial, and social costs that typically (and historically) accompany state efforts to “get tough” on corporate criminals. Maximizing worker safety or environmental protection is typically more costly, particularly in the short term (the quarterly report to shareholders) than the status quo. This does not suggest that all corporations always or necessarily break the law. It does suggest, however, that criminal law needs to recognize and deal with the conflict of interest companies face whenever adherence to the rule of law increases the costs of production.
