Criteria for establishing criminal negligence
For there to be criminal negligence in occupational health and safety, there must be:
1
either a physical act or gesture that creates a danger, and
2
a mental aspect, in that the person who took the action had knowledge of the danger the situation represented for others.
Naturally, there is only criminal negligence when a person causes the death or bodily harm (including post-traumatic stress and psychological harm). The legislator’s use of the term “others” aims to protect the public in general.
Therefore, Section 217.1 of the Criminal Code creates a duty for employers.
Any employer failing in this duty can be considered to have “omitt[ed] to do anything” that it was its duty to do, as defined in Section 219 of the Criminal Code, and thus, could be charged with criminal negligence.