Westray Law: How Organizations Can Be Criminally Charged for Workplace Negligence?

The call you never wanted to receive has come. There has been a serious accident on one of your sites. Beyond the immediate human tragedy and operational chaos, you, as a CEO, have just entered the most dangerous legal territory of your career. The line between a regulatory health and safety issue and a criminal investigation has been irrevocably crossed. Your actions in the coming hours and days will not be judged by your safety manual, but by Crown prosecutors and the Criminal Code of Canada.

Most executives believe their duty is to cooperate fully and transparently with authorities to resolve the matter. This is a catastrophic mistake. The legal framework in Canada, radically altered by the “Westray Bill,” is designed to hold not just the company, but its “senior officers,” criminally liable for negligence. The standard advice about documenting procedures and conducting internal reviews is dangerously insufficient. It fails to address the critical escalation points where a corporate entity, and its leadership, transition from being subjects of an inquiry to accused criminals.

This briefing is not about safety compliance. It is about criminal defence. We will move beyond the platitudes of “due diligence” to focus on the immediate, critical actions required to contain your legal exposure. We will dissect how the definition of a “senior officer” extends deep into your management ranks, why silence is your most powerful tool when investigators arrive, and how seemingly innocent actions like deleting an email can constitute a separate and severe criminal offence. The goal is not to obstruct justice, but to ensure your constitutional rights protect you from a system now geared to assign criminal blame for workplace tragedies. Your business’s survival and your managers’ liberty depend on it.

This article provides a strategic overview of the critical legal challenges your organization faces following a serious workplace incident. The following sections outline the key areas of criminal exposure under Canadian law and the immediate defensive postures required to protect your company and its leadership.

Who Is a “Senior Officer”? The Definition That Puts Managers in Legal Jeopardy

The single most dangerous misconception about the Westray law is that criminal liability stops at the executive suite. The Criminal Code defines a “senior officer” as anyone who plays an important role in establishing policy or is responsible for managing an important aspect of the organization’s activities. This is a deliberately broad definition designed to capture middle management and on-site supervisors—the very people making daily operational decisions.

This is not a theoretical risk. In the landmark case against Metron Construction following a catastrophic scaffold collapse, the courts made it clear that the legal changes were intended to broaden corporate liability. The court found that the on-site supervisor, Mr. Fazilov, met the definition of a “senior officer.” In its decision, the court stated that the definition of senior officer in s. 2 of the Code served to broaden the scope of those whose conduct could be attributed to the company. His failure to take reasonable steps to prevent harm directly resulted in Metron’s criminal conviction.

For your construction company, this means your project managers, site superintendents, and lead foremen could all be classified as “senior officers.” Their actions, or lack thereof, are legally the actions of the corporation. If they demonstrate a “marked departure” from the standard of care expected to protect workers, they are not only exposing themselves to personal charges but are establishing the company’s criminal guilt. The “mens rea,” or guilty mind, of the corporation is found in the collective knowledge and actions of these individuals. You must immediately identify every person in your organization who could meet this definition and ensure they understand their elevated legal risk.

Right to Silence: Why Your Corporate Representative Should Not Speak to Police Without Counsel?

When police or ministry investigators arrive at a worksite following a serious incident, the human instinct is to be helpful and provide information. This is a critical error. The corporation, like an individual, has the right to remain silent and the right to counsel. These rights must be asserted immediately and without exception. Any statement, no matter how seemingly innocent, can and will be used to build a criminal case against the company and its officers.

Your designated site representative’s only job is to identify themselves, politely request the investigators’ credentials, and state that the company will not be providing any statements until legal counsel is present. They should not answer questions, offer explanations, or provide access to documents beyond what is legally required by a warrant. Remember, investigators are not there to help you understand what happened; they are there to gather evidence for a potential prosecution. Every word spoken is a potential admission that can waive legal privilege and establish the elements of an offence.

It is crucial to understand that Bill C-45 does not invent new liabilities out of thin air, but it dramatically raises the stakes. As the Government of Canada’s own publications clarified during its implementation, “Bill C-45 makes no change in the current law dealing with the personal liability of directors, officers, and employees.” They are, and always have been, liable for crimes they commit. What has changed is the mechanism for attributing their actions to the corporation itself, making every un-counseled conversation a corporate risk.

This protocol is not about obstruction; it is about control. By channeling all communications through legal counsel, you preserve legal privilege and prevent inadvertent admissions that could prove fatal in court.

Corporate Probation: What Does It Mean for a Court to Supervise Your Business?

A criminal conviction under the Westray provisions is not just a matter of paying a fine. While the financial penalties can be severe—courts have unlimited discretion—the most damaging consequences are often the non-monetary sentences. A court can place your entire organization on probation, imposing far-reaching conditions that effectively mean a judge is supervising your business operations. This could include orders to publicly disclose your conviction, implement specific (and costly) safety procedures dictated by the court, and allow court-appointed auditors to have unrestricted access to your sites and records for years.

The financial viability of your company is not the primary factor for the court. In the Metron Construction case, the Ontario Court of Appeal increased the initial fine to $750,000, explicitly stating that the economic viability of a corporation is properly a factor to be considered but it is not determinative. The message is clear: the need for public denunciation and deterrence can outweigh the survival of your company. This is a punitive, not a restorative, system.

Furthermore, a criminal conviction can trigger devastating commercial consequences. For a construction firm, it can mean immediate debarment from bidding on public-sector contracts. Under Canadian regulations, this can lead to a 5-10 years ineligibility for public contracts, effectively a death sentence for many businesses. This is not a fine you can budget for; it is an existential threat to your company’s future. The reputational damage is immense and can cripple your ability to attract talent, secure financing, and retain clients in the private sector.

The stakes are not just financial; they are operational and reputational. A conviction gives the court the power to dismantle and rebuild your company’s safety culture from the outside, at your expense, and on a public stage.

Destruction of Documents: How Deleting Emails Can Turn a Civil Case into a Criminal Charge?

In the panic following a serious incident, an instinctive but fatal impulse can be to “clean up” the record. This may involve deleting potentially embarrassing emails, altering daily safety logs, or removing project documents from a server. This is not tidying up; it is the separate and serious criminal offence of obstruction of justice. It is one of the fastest ways to turn a difficult negligence case into an indefensible criminal conviction for both the company and the individuals involved.

As soon as a serious incident occurs, you are legally on notice. A “litigation hold” must be implemented immediately. This is not a suggestion; it is a legal command. You must actively preserve all potentially relevant information, in any form. This includes:

• All email correspondence related to the project, safety, and personnel involved.
• Digital communications on platforms like Slack, Teams, or WhatsApp.
• Project management data from software like Procore or Autodesk.
• Electronic daily logs, inspection reports, and employee training records.
• Digital photographs and video from company devices or servers.

Automatic deletion policies must be suspended instantly. The act of willfully destroying evidence, or even being willfully blind to its destruction by others, demonstrates a guilty mind (mens rea) that prosecutors will seize upon. It signals to a judge and jury that you had something to hide, poisoning any future defence of “due diligence” you might have had. An obstruction charge is often easier for the Crown to prove than the underlying negligence charge, and it carries severe penalties, including imprisonment.

Your legal team must oversee this process. The integrity of your evidence preservation is a cornerstone of your defence. Any failure here will be interpreted as a deliberate attempt to pervert the course of justice.

The Deferred Prosecution Agreement: How to Avoid Conviction by Admitting Fault?

In certain circumstances, there may be a path to avoiding a criminal conviction: a Deferred Prosecution Agreement (DPA), also known as a Remediation Agreement. This is not a “get out of jail free” card. A DPA is an extraordinary tool where the Crown prosecutor agrees to suspend the prosecution in exchange for the organization fulfilling a stringent set of requirements. These typically include a public admission of the facts, payment of a substantial monetary penalty, forfeiture of any benefits gained from the misconduct, and implementing a robust, court-monitored compliance program.

Eligibility for a DPA is highly discretionary and depends on several factors, most critically, full and proactive cooperation with the investigation. This includes self-reporting, conducting a credible internal investigation, and identifying the individuals responsible for the wrongdoing. As seen in the 2022 DPA granted to SNC-Lavalin, prosecutors consider factors like having an exemplary integrity program in place and full cooperation with investigators. A history of prior offences can be a negative factor, but it does not automatically preclude a DPA.

The following table, based on the Public Prosecution Service of Canada (PPSC) guidelines, outlines the core criteria for considering a DPA. It is crucial to note that offences causing bodily harm or death are generally excluded, making DPAs an unlikely option for many Westray-related incidents, though they may apply to associated economic crimes.

If a DPA is successfully negotiated and completed, the criminal charges are stayed. If the company fails to meet any of the conditions, the prosecution can be immediately resumed. Pursuing a DPA is a high-stakes strategic decision that requires careful legal analysis from the very outset of an investigation. It involves waiving certain rights and requires a level of cooperation that must be expertly managed.

The Anti-Bribery Trap: How a “Consulting Fee” Abroad Can Jail You in Canada?

While your immediate crisis is a workplace safety incident, it is essential to understand the broader context of corporate criminal liability in Canada. The same legal principles of holding organizations and their senior officers accountable apply with equal force to other offences, such as foreign corruption. Canada’s Corruption of Foreign Public Officials Act (CFPOA) is aggressively enforced and demonstrates the government’s low tolerance for corporate misconduct, no matter where it occurs.

A seemingly legitimate “consulting fee” or “facilitation payment” made by an agent in another country can lead to criminal charges against your Canadian company and imprisonment for its executives. The law has extraterritorial reach. The classic defence of “I didn’t know” is ineffective. As legal experts often warn, the ‘willful blindness’ doctrine can lead to a conviction under the CFPOA, even if executives had no direct knowledge of a bribe. If you deliberately avoid asking questions about suspicious payments, the law will treat your ignorance as knowledge.

The extensive investigations into SNC-Lavalin, including one concerning a $128 million contract under RCMP bribery investigation, serve as a stark reminder of the severe legal and reputational risks. These cases illustrate that the Crown will pursue complex international cases over many years. The same prosecutorial resources and legal doctrines used in these high-profile bribery cases can and will be deployed in a major workplace negligence prosecution.

This context is vital for you as a CEO. It shows that the Westray amendments are not an isolated piece of legislation but part of a wider, more aggressive enforcement environment. The expectation is that senior leadership is actively aware of and responsible for the company’s conduct, both at home and abroad. A culture of compliance cannot be siloed; it must permeate every aspect of the business.

Unreasonable Search: When Can You Refuse Entry to a Government Inspector?

Following a serious incident, your worksite will be visited by investigators. It is critical to distinguish between two types: provincial health and safety inspectors and the police. Their powers are different, and your response must be tailored accordingly. While you must not obstruct an investigation, you also must not voluntarily surrender your constitutional rights, including the protection against unreasonable search and seizure.

Provincial OHS inspectors generally have broad statutory powers to enter a workplace, inspect the site, seize items, and demand documents without a warrant. However, these powers are for regulatory purposes, not to gather evidence for a criminal prosecution. As the Canadian Centre for Occupational Health and Safety (CCOHS) notes, it is the Ministry of Labour or WCB that enforces occupational health and safety laws at the provincial level. If the police arrive, they are operating under the Criminal Code. They typically require a warrant to search your premises unless there are “exigent circumstances.”

Your on-site personnel must be trained to execute a clear “gatekeeper” protocol:

Asserting these rights is not an admission of guilt; it is a fundamental part of a competent legal defence. It ensures a clear record of who was on site, what they were authorized to do, and what they took. This information is invaluable for challenging the admissibility of evidence in court later.

How to Protect Your Company from Criminal Charges Under the “Westray Bill” Provisions?

The only viable defence against a charge of criminal negligence is the defence of “due diligence.” However, this is not a document you can produce after an incident. It is a living, breathing system that must be demonstrably active long before any accident occurs. A court will not be impressed by a pristine safety manual on a shelf; it will demand proof that you took all reasonable steps to prevent harm. This is a far higher bar than mere regulatory compliance.

The Westray amendments created a specific legal duty in the Criminal Code for those who direct work. This duty is the foundation of a prosecution, confirming that employers must take all reasonable steps to prevent bodily harm. To build a credible due diligence defence, your company must have a proactive system that includes:

• Documented Hazard Assessments: Regular, site-specific risk analyses that are updated and communicated to all affected workers.
• Robust Training and Supervision: Proof that employees were not only trained on procedures but were also supervised to ensure they followed them. This training must be documented and comprehension verified.
• Regular Audits and Inspections: A schedule of internal and third-party audits with clear documentation of findings and, most importantly, proof that deficiencies were corrected promptly.
• Clear Lines of Authority: An organizational chart and policies that clearly define who is responsible for safety at every level.
• An Open-Door Policy for Safety Concerns: A system where employees can report hazards without fear of reprisal, and proof that these reports are investigated and acted upon.

It’s also critical to understand the parallel legal systems at play. An incident will trigger both a provincial OHS investigation and a potential federal criminal investigation. The standards and consequences are vastly different.

Finally, do not assume your Directors and Officers (D&O) insurance policy is a complete shield. As confirmed by the language in many Canadian D&O insurance policies which often contain exclusions for criminal acts, coverage for legal defence costs may be provided, but the policy will not pay out for criminal fines. If convicted, the financial penalty comes directly from the company’s assets.

Your company is now in a legal war. The decisions made today will dictate the outcome. The immediate next step is not to conduct an internal operational review, but to engage experienced criminal defence counsel to manage the crisis, preserve privilege, and mount a strategic defence. Your priority must be to control the flow of information and prepare for a legal battle where the rules are fundamentally different from any business challenge you have ever faced.