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______________________________________________________________________________Stewart McKelveyDoing Business in Atlantic Canada• any other person exercising managerial or supervisory functions in that corporation, departmentor portion of the public service.Any person who contravenes a provision of Part II may be punished by a fine of up to $1-million and/ortwo years in prison.Criminal Code ProvisionsThe Criminal Code was recently revised to include new liabilities for corporations for failure to ensure andmaintain certain occupational health and safety duties.The Criminal Code establishes a legal duty to take “reasonable steps” and applies to both individuals andorganizations. The occupational health and safety legal duty is imposed on “everyone” who undertakes,or has the authority, to direct how another person does work or performs a task. The legal duty is thatsuch persons must take reasonable steps to prevent bodily harm to the person, or any other person, towhom that work or task is directed.Individual ObligationsOccupational health and safety criminal negligence for individuals is established where the individual, inundertaking to direct how another person does work:• contravenes his or her duty to take “reasonable steps” to prevent bodily harm, and• shows wanton or reckless disregard for the lives or safety of others.Organization ObligationsThe test for determining criminal negligence for organizations applies the test for criminal negligence ofindividuals to the actions of the corporation’s employees and then adds a further test to determine if asenior officer should have taken reasonable steps to prevent those actions (i.e. it is necessary todetermine if the senior officer responsible, or senior officers collectively, departed markedly from thestandard of care that could be expected.)Due DiligenceThe health and safety obligations in the Criminal Code constitute criminal offences and as such carry withthem the requirement that each element of the offence be proven beyond a reasonable doubt. Unliketraditional occupational health and safety violations which are strict liability offences (requiring only thatthe unlawful act be proven and allowing for the defence of due diligence), the new occupational healthand safety negligence offence is not directly impacted by traditional due diligence defence. However, theconcept of due diligence is clearly subsumed in the standards as well as in the “party to” offencesprovisions. Considering the subtle reliance on due diligence like principles contained in the provisions, itwould appear that the due diligence standard may in fact apply by analogy.Due diligence is defined as whether the organization or individual can establish it took all reasonable careby:• establishing proper systems to prevent the commission of the offence; and• taking reasonable steps to ensure effective operation of the systems.The recent Criminal Code amendments apply to every person who directs how others do work or hasauthority to direct how work is done. This may include walking bosses to senior executives. Theamendments provide that any “organization”, “representative”, or “senior officer” has a legal duty.Page 65