Due Diligence Is Not a Defence to Everything

In 2016 an Ontario court sentenced a project manager to three and a half years in prison for four counts of criminal negligence causing death and one of causing bodily harm. He was not an executive in a distant head office. He was the person on site who had authority over how the work was done.

The provision that made that possible applies to anyone who directs how another person does work, and most of the people it covers have never heard of it.

What the Westray Bill actually did

Twenty-six miners died in the Westray explosion in Nova Scotia in 1992. The inquiry that followed led to Bill C-45, which became law on 31 March 2004 and amended the Criminal Code.

CCOHS's overview of the Bill sets out what it added: new rules for attributing criminal liability to organizations and their representatives, and a new section 217.1 creating a duty for those who direct the work of others.

Section 217.1 imposes a legal duty on everyone who undertakes, or has the authority, to direct how another person does work or performs a task, to take reasonable steps to prevent bodily harm to that person or any other person arising from that work.

Read the scope carefully. It is not limited to employers, directors or officers. A lead hand, a foreman, a working supervisor, a site manager, anyone with authority over how a task gets done is inside it.

Two further sections, 22.1 and 22.2, set out how criminal liability attaches to organizations for the acts of their representatives.

The consequences differ for people and companies

A corporation cannot be imprisoned. A violation of section 217.1 is treated as an indictable offence, and for a corporation there is no maximum limit on the fine.

Individuals face a different exposure. The Criminal Code allows courts to impose jail, and criminal negligence causing death carries a maximum of life imprisonment.

There is also a distinction that matters well beyond the sentence itself. As legal analysis of the provision notes, a conviction under occupational health and safety legislation does not give you a criminal record. A conviction under the Criminal Code does.

The Kazenelson case, arising from a swing stage collapse, remains the reference point for front-line liability: a project manager imprisoned for three and a half years rather than fined.

Prosecutions under this provision are not frequent, and they are not theoretical either. A 2019 Nova Scotia case saw a garage owner charged for criminal negligence, with the court noting he had authority to direct the deceased worker and therefore owed the section 217.1 duty.

Due diligence is a defense to one thing, not everything

This is the misunderstanding worth correcting, because a lot of safety programs are sold on a premise that only half holds.

Most occupational health and safety offences are strict liability offences. The prosecution must prove beyond a reasonable doubt only that the accused committed the physical act. The accused can then avoid conviction by proving, on a balance of probabilities, that they exercised due diligence: that they took all reasonable care a reasonable person would have taken in the circumstances.

That is a genuine and powerful defense, and it is the reason documented safety systems matter.

It does not transfer to criminal charges. Where a charge is brought under the Criminal Code, due diligence cannot be used to avoid liability in the way it can under a regulatory offence. A comprehensive compliance program will not provide a complete defense to a criminal charge, though it may be treated as a mitigating factor when a court considers liability and penalty.

So the honest framing is: a strong safety system is your defense to the regulatory charge, and your mitigation on the criminal one. It is not a shield against both.

The burden sits on you, and the clock runs backwards

Two features of the due diligence defense change how a business should think about documentation.

The first is that the burden of proof shifts. Once the physical act is established, it is the accused who must prove due diligence rather than the prosecution who must disprove it. You are not defending an accusation so much as building a case.

The second is timing. Due diligence is demonstrated by actions taken before the event, not after. All elements of the program have to be in effect before any incident occurs, which means a flurry of policy writing after a serious injury proves nothing about the day it happened.

That combination makes documentation the mechanism rather than the paperwork. Hazard assessments with dates. Training records with signatures. Inspection findings with owners and closure evidence. Equipment purchases, issue records and replacement intervals. Meeting minutes showing decisions rather than discussions.

A common failure is a program that exists and cannot be proven. The hazard was assessed in somebody's head, the worker was trained by being shown once, the defective ladder was taken out of service and nobody wrote it down.

Incident investigation records matter twice over here: they show the system working, and the improvements that follow show it learning.

Administrative penalties change the arithmetic

There is a newer enforcement route worth knowing about, because it sidesteps the defense entirely in some jurisdictions.

Administrative monetary penalties are imposed by the regulator rather than through a prosecution in court. Where an occupational health and safety prosecution requires a prosecutor to prove the offence beyond a reasonable doubt, and allows the defendant to answer with due diligence, an administrative penalty works differently and the due diligence defense may not be available.

Regulators across Canada have been using them more. For an employer, that means the familiar calculation of "we would run a due diligence defense" may not apply to the thing that actually arrives.

It also means the practical value of a good system shifts from winning an argument afterward to not generating the penalty in the first place.

Trends in the courts point the same way. Fines under both occupational health and safety legislation and the Criminal Code have been rising, and jail sentences have become more common and longer.

What due diligence looks like in practice

The legal test is taking all reasonable care that a reasonable person would take in the circumstances, which is deliberately contextual. In practice it maps onto things this blog has covered one by one.

Hazard identification and assessment, properly documented, with controls selected by the hierarchy rather than by habit. Our guide to the complete PPE checklist for Canadian workers and our guide to PPE requirements for Canadian construction sites cover the equipment end of that.

Equipment that is correct for the hazard rather than approximately right, and verifiable as such. A marking is a claim until checked, covered in our guide to CSA certified versus CSA compliant, and the specification matters in detail, covered in our guides to CSA work boot symbols and CSA Z96 classes and levels.

Training that is real and recorded, including the parts people treat as obvious: fit testing rather than issuing respirators, covered in our guide to respirator fit testing under CSA Z94.4, and substance-specific selection rather than a general glove, covered in our guide to choosing chemical resistant gloves.

Plans for the situations where equipment alone is not enough, such as the rescue plan covered in our guide to suspension trauma and fall rescue, and provision covered in our guide to CSA Z1220 first aid kit requirements.

And supervision that actually happens, because a system nobody enforces is evidence of a policy rather than of care.

If you direct work, this is about you

The most useful thing a front-line supervisor can take from this is that the duty attaches to the authority rather than to the title.

If you decide how a task gets done, who does it, when it happens or whether it proceeds, you are inside section 217.1. Being told by someone above you to proceed does not remove the duty, and the Kazenelson sentence is what that looks like when it goes wrong.

The protective behaviour is also the safe behaviour: raise the hazard, record that you raised it, stop the work where stopping is warranted, and do not let schedule pressure substitute for a decision you would not otherwise make.

Workers have the right to refuse unsafe work for the same underlying reason, and a supervisor who treats a refusal as an inconvenience is working against their own position as much as the worker's.

For employers, the practical investment is a program that is genuinely in place, genuinely documented and genuinely followed, built before anything happens rather than assembled afterward. Our guide to who pays for work boots and PPE in Canada covers one of the questions that most often gets left unresolved until it matters.

Frequently Asked Questions

Who does section 217.1 of the Criminal Code apply to?

Everyone who undertakes, or has the authority, to direct how another person does work or performs a task. That includes organizations and individuals, and it covers lead hands, foremen and working supervisors as much as directors and officers. The duty is to take reasonable steps to prevent bodily harm arising from that work.

Is due diligence a defense to criminal charges?

No. Due diligence is a defense to strict liability offences under occupational health and safety legislation. Where a charge is brought under the Criminal Code, due diligence cannot be used to avoid liability, although a comprehensive compliance program may be treated as a mitigating factor on liability and penalty.

What does the due diligence defense actually require?

Proving, on a balance of probabilities, that you took all reasonable care that a reasonable person would have taken in the circumstances. The burden sits on the accused rather than the prosecution, and the care must have been in place before the incident, since due diligence is demonstrated by actions taken beforehand.

Can a supervisor actually go to jail?

Yes. In what appears to be the first conviction of a front-line supervisor relying on section 217.1, an Ontario court sentenced a project manager to three and a half years' imprisonment for four counts of criminal negligence causing death and one of criminal negligence causing bodily harm. Criminal negligence causing death carries a maximum of life imprisonment.

Does an OHS conviction give you a criminal record?

No. A conviction under occupational health and safety legislation does not produce a criminal record. A conviction under the Criminal Code does, which is one of the significant practical differences between the two routes.

Do administrative penalties allow a due diligence defense?

Not necessarily. An administrative monetary penalty is imposed by the regulator rather than through a court prosecution, and the due diligence defense may not be available. Regulators across Canada have been making more use of them, which changes the calculation for employers relying on being able to argue due diligence later.

This guide is general workplace safety information and is emphatically not legal advice. Criminal liability, the due diligence defense, strict liability offences and administrative monetary penalties are complex areas of law that turn on the specific facts of a case and on the jurisdiction. Anyone facing a charge, an investigation or a penalty, or responsible for a safety program, should obtain advice from qualified legal counsel.