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There are laws, and there are laws. And there is enforcement, and there is enforcement.

Consider driving offences. In theory, after some planning, someone might deliberately aim their vehicle at a person with the intention of killing. If the victim dies, there could be a Criminal Code charge of murder, likely a jury trial, and on conviction a life sentence with no eligibility for parole for many years.

As we slide down the scale of Criminal Code driving offences, we come to charges like criminal negligence, and then dangerous driving and impaired driving. We’re still in the area of the criminal law—the most serious of laws in our country—but the offences become less serious, and the punishment less severe. The law examines the blameworthiness of the driver’s conduct, and the driver’s state of mind. Dangerous driving brings 10 penalty points to the licence, as well as a fine and possibly a driving prohibition and jail.

As we move further we leave the criminal law and enter quasi-criminal or regulatory law. Driving without due care and attention, for example, is a Motor Vehicle Act offence that attracts 6 points and a fine (and on rare occasions jail). But, then there’s driving too fast for road conditions (3 points). There can be less serious offences like driving without a seatbelt (no points). Sometimes a ticket will issue. Maybe a warning.

And, of course, one may reach the very bottom of the list, the proverbial parking ticket.

If a vehicle isn’t properly equipped, there can be an out-of-service designation, and/or a ticket, and/or a notice and order.

The point is that there’s a sliding scale to the law. The more blameworthy the conduct, the greater the punishment. The greater the punishment, the more elaborate the legal process.

Let’s consider workplace safety. If there’s a death in a workplace, or a serious injury, there is often a call to punish the employer. Near Prince George, a lumber mill exploded and deaths occurred, at a time when it was not yet recognized that the sawing of dry, beetle-killed pine posed such a risk, and just weeks after WorksafeBC had inspected and okayed dust levels at the mill.

Similar to driving offences, the potential always exists for a criminal charge under the Criminal Code, and for severe penalties upon conviction. How blameworthy was the conduct? What was the state of mind of the employer?

In 2004, following the Westray mine disaster, the Criminal Code got amended by Bill C-45. Now, a person who directs the work of another can be charged if the person fails to take reasonable steps to prevent bodily harm to that worker.

The federal government, on its website, points to eight charges under this provision since it became the law. A closer review shows that this is only half the story. In each case there was a main charge under the Criminal Code of “criminal negligence causing death”—a charge that existed long before Bill C-45 became law. The Bill C-45 charge was added on top, but apparently didn’t add much to the proceedings.

In BC, it seems that there have been no Bill C-45 charges, in spite of the fact that there have probably been about 1,300 workplace deaths since it became law.

Why is this? Rightly or wrongly, the criminal law is reserved for only for the most egregious of conduct.

Where there is conduct that is less than criminal, the Occupational Health and Safety laws are invoked. In many cases, an employer is “written up” for a violation, and may be made to stop operating until the violation is rectified. A note is made on the employer’s record, but that’s about it. Sometimes there is a process before the court for violating the Regulations. Sometimes administrative penalties are imposed, within the confines of the Worksafe bureaucracy without any court involvement.

For the mill explosion, government has announced that there will be no criminal charges. Partly, it seems, that’s because it would be hard to prove a criminal mindset on the part of the employer. But, it also appears that Worksafe investigators, unlike RCMP officers, weren’t familiar with the protections that the criminal law demands when undertaking an investigation. Like giving a Charter warning prior to taking a statement.

There may still be an administrative penalty imposed. That has yet to be decided.

Recently I was asked about logging trucks that chronically exceed their legal weight capacity. Obviously there is a financial incentive to break the law. Truckers are sometimes urged by the logging contractors that they haul for, and even the mills to where the timber is delivered, to exceed the legal limit. What is the effect of this?

Let’s look at the blameworthiness of the offence. Is the vehicle 2% overweight, or 20%? Are overweight loads carried occasionally, or chronically? More importantly, what is the impact of the overload upon vehicle safety? Is the vehicle unable to stop safely, or is it a rollover risk, by reason of being operated overweight? At the low end of the scale, punishment will be relatively minor. At the high end, the flouting of the law can result in some serious consequences, especially if severe injury or death results.

I encourage drivers to ask themselves this: if I was involved in a serious accident and found myself in front of a judge trying to explain my conduct, how might my explanation sound?

Let me assure you that one explanation, that I needed to haul overweight because I wasn’t getting paid enough to haul legally, is not going to impress. Every operator is responsible for complying with the law. Every contract implies that there will be legal compliance.

Almost invariably enforcement personnel look to the driver when laying charges.

It is possible, though, for enforcement personnel to come after the contractor or mill that encouraged the unlawful activity. (That’s the “abetting” in the phrase “aiding and abetting”.) And, there’s even a specific provision of BC’s Motor Vehicle Regulation which says that a shipper or other person may not require or allow someone to drive if that would likely jeopardize the safety or health of the public or the driver.

I’ve never seen such a charge. But, in the right circumstances—the loss of an innocent life, a perception that a company is putting profits before public safety, and a public outcry—such a charge could be seen.

Quite separate from all of this is the civil law. A party injured in an accident caused by an overweight vehicle might add, as a defendant, a party that failed to prevent the accident. If a drinking establishment can be found liable for failing to stop an inebriated patron from driving, why shouldn’t a contractor or licensee be liable for encouraging (and indeed paying for) the operation of overweight vehicles?

One more note is this. There are cases where enforcement personnel come to a mill’s scale shack and gather together load slips for months, and with those are able to issue a multitude of overweight tickets. In my view no driver can legitimately complain that his constitutional rights have been violated by this. Trucking is a regulated industry, and those who participate in it know that there are rules and regulations for them to comply with, and records that need to be kept. There is no right to privacy regarding those load slips.

For this type of offence, the peace officer may go back 6 months. That has the potential of being a real bite in the pocketbook.

John Drayton is a Kamloops lawyer practicing in the areas of forestry and transportation law.