Bill C-45 became Canadian law in 2004. It created new criminal law duties for workplace health and safety (Bill C-45, 2004). This Bill implemented, in part, section 217.1 of the Criminal Code which established a new criminal law duty, applicable to everyone who has the authority to direct how another person does their work, to take reasonable steps to ensure their safety (Criminal Code, SC 2003, c. 21, s. 3). Sixteen years have passed since this Bill became law, providing ample time to analyze the success or failure of section 217.1 in remedying the issues in Canadian law present at the time of the Westray disaster (Criminal Code, SC 003, c. 21, s. 3). This paper evaluates, based on available evidence and primarily Canadian Court decisions which have considered this “new” section of the Criminal Code, whether Bill C-45has been successful and achieved its stated purpose (Criminal Code, 1985) (Bill C-45,2004). In that regard I will consider the following more specific, and in some cases counterfactual questions: (1) whether sections 217.1 and 22.1 of Bill C-45 would have resulted in a successful criminal prosecution in the Westray case (2)the judicial consideration of section 217.1 since 2004 (3) and cases where there has been a successful prosecution with respect to section 217.1, the impact that sentencing decisions have had on possible deterrence and workplace safety in Canada (Criminal Code, SC 2003, c. 21, s. 3). I conclude that (1) sections 217.1 and 22.1 would not have resulted in a successful criminal prosecution of any managers or officers of Curragh Inc., the owners of the Westray mine, (2) since 2004 there have been very few successful prosecutions using section 217.1, and the narrow judicial interpretation of section 217.1, and the fact that it does not create a separate criminal offence but merely a criminal law duty, has limited the effectiveness of Bill C-45 (Bill C-45, 2004). Moreover, where there have been successful prosecutions the sentences have been relatively lenient, (3) the relevant statistics and caselaw since 2004 illustrate limited deterrence or at least no positive trend in workplace injuries and deaths in Canada (Criminal Code, SC 2003, c. 21, s. 3). Given this analysis, section 217.1 and Bill C-45 generally have not succeeded in remedying the deficiencies in Canadian criminal law since (Bill C-45, 2004, “Section 217.1”). One of the main reasons for this is that this section does not create a criminal offence per se but rather a criminal law duty. For the “Westray Bill,” and in particular section 217.1, to fulfill its intended purpose, it must be revised.
