Can A Defendant Be Charged Criminally After Pleading Guilty To OHSA Charges?

One of the most interesting questions that arose after the Bill C-45 amendments to the Criminal Code, is whether a defendant could face criminal charges after pleading guilty or being convicted of charges under provincial OH&S legislation. Most provinces have strict limitation periods on when OH&S charges may be laid (one year in Ontario), whereas there is no time limit under the Criminal Code for proceeding with indictable offences (more serious cases). Thus, theoretically, a corporation or individual could be charged under the Criminal Code many years after OH&S proceedings have concluded.

This issue arose in a very recent fatality case ( R. v. Campbell). Mr. Campbell pleaded guilty, as a supervisor under Ontario's OHSA, to an offence relating to the improper use of a mobile crane. He was fined $3,500. Approximately five months after the guilty plea, the provincial Crown Attorney charged him with criminal negligence causing death under the Criminal Code.

Mr. Campbell brought a constitutional motion to dismiss the charge, primarily on the basis that the Crown Prosecutor ought to have proceeded with the OHSA charges and Criminal Code charges at the same time rather than waiting to lay criminal charges after the accused pleaded guilty to the OH&S offence.

He argued that the Crown and the police have a duty to prioritize their investigations especially in cases where the information is readily available and that lengthy delays should result in a stay of the charges in the absence of a legitimate explanation for the delay. He asserted that the Crown had concluded that there was a basis for a criminal charge at an early stage of the matter, and suggested that the criminal prosecution was a bad faith response by the Crown to what it perceived as a low fine in the OHSA prosecution. (In our view, the bad faith argument was weak considering the legal right of the Crown to appeal a sentencing decision.)

The Crown argued that the Ministry of Labour was dealing with the matter and it was waiting to see what was going to happen. Once there was a plea of guilty to the OHSA charge, the Crown concluded that it was appropriate to lay the criminal negligence charge and proceeded to do so. The Crown argued that the accused had not shown evidence of prejudice beyond what any other person facing criminal charges would experience.

The Court accepted Mr. Campbell's argument and stayed the charges (though, not surprisingly, the Court did not accept that the...