The Criminal Code and Canadian Workplaces: An Interview with Rob Stewart

Ashley: Hello and welcome to Safe and Sound with CCOHS. Our guest today is a senior subject matter expert in criminal code accountability for workplace fatalities and serious injuries. Rob Stewart has supported criminal code investigation training for police investigators, Crown prosecutors, regulators, and enforcement stakeholders. He has worked with many provincial and municipal authorities, including the Calgary Police Service, Royal Newfoundland Constabulary, Newfoundland RCMP, Hamilton Police Service, and Ontario Ministry of Labour representatives. Rob is currently involved in a new national e-learning investigation course that helps build cases with a reasonable likelihood of conviction. Today, we'll discuss criminal code accountability, why serious incidents continue to occur around known hazards and controls, and what leaders can do to close the gap between compliance on paper and preventing harm. Thanks for joining us today, Rob.

Rob: Thanks for having me, Ashley. It's great to be here.

Ashley: Despite significant investments in audits, inspections, safety programs, and management systems, organizations still experience serious incidents involving known hazards and controls. Why does that gap continue to exist?

Rob: This is one of the most frustrating aspects of workplace safety. Despite decades of hazard identification, controls, and regulations, serious incidents continue to occur far too frequently. The reality is that we know what the hazards are and how to prevent them, but we are often choosing not to implement the necessary controls. As a result, similar incidents continue to occur repeatedly. A recent Ontario coroner's report highlighted this issue, noting that many of these incidents likely would not have occurred if prescribed safety measures had been followed. Common examples include falls from heights, working around moving heavy equipment, rigging and hoisting, being under suspended loads, and inadequate trenching and shoring practices. Another challenge is that many current safety performance measures create a false sense of assurance. Senior executives are often unaware of what is actually happening on the ground.

Ashley: You've spoken about measuring safety culture in a more objective way instead of relying on surveys or self-reported data. What does that look like in practice?

Rob: One challenge is that safety culture is a vague concept. It is not meaningless, but there is no universally accepted definition. Researchers have identified dozens of definitions, and experts often disagree on what the term means. Many definitions focus on desired outcomes, such as committed leadership or engaged employees. However, we need to move beyond those ideals. The science behind assessing dysfunctional safety culture operationalizes it using a reasonable person standard. Rather than focusing on abstract concepts, it examines decision-making, priorities, and accountability. It looks at the decisions that place workers at risk of serious harm.

Ashley: That is certainly a lot to think about. There are more than 50 definitions of culture?

Rob: Yes. Defining culture was one of the biggest challenges we encountered when studying these issues. Dr. Susan Dodd of Nova Scotia testified before Parliament that we need to look beyond the "black box" of corporate culture. That question led me and a staff sergeant from the Calgary Police Service on a two-year effort to better understand how culture can be evaluated. Sociotechnical science provides that mechanism. It defines culture as the complex sociotechnical interactions that govern how work is done. This gives us a practical definition and allows us to evaluate organizations through a more objective lens.

Ashley: Let's turn to the Criminal Code. You're currently involved in a new national e-learning investigation course designed to strengthen Criminal Code enforcement for workplace fatalities and serious injuries. Why does this matter, and what message does it send to employers, supervisors, managers, and senior executives?

Rob: It matters because accountability is essential for prevention. As the Ontario coroner's findings suggest, many incidents could be prevented if existing laws were followed. However, penalties often consist of organizational fines that may be viewed merely as a cost of doing business. Without meaningful deterrence, behaviour is unlikely to change. This principle is well established. Canada has strong Criminal Code provisions through the Westray amendments, but they are not consistently enforced. Professor Jennifer Quaid from the University of Ottawa has written about this issue. Her research suggests that the legal framework is strong and can be applied to organizations and individuals who direct work. What is missing is specialized training in organizational dynamics and business decision-making so investigators can properly assess corporate crimes and identify who is responsible for key decisions. The purpose of the new e-learning program is to develop an investigative and prosecutorial framework that combines strong laws with effective enforcement. Together, these elements can encourage safer organizational behaviour. Take trenching and shoring as an example. Everyone in construction understands that trenches must be properly sloped or protected. The real question is why those controls are not being implemented. The answer often lies in organizational shortcuts that prioritize profits over people. When there are no meaningful consequences, those behaviours are reinforced. This issue is especially frustrating when some regulatory convictions result in creative sentencing arrangements that direct fines toward something like, "let's educate workers on the hazards of being in a trench or working under suspended loads." I mean, they know it already. And by putting it towards this training element that's there for workers, you're basically blaming the worker all over again. That's the underlying message.

Ashley: To put the onus for safety on the worker.

Rob: Exactly. Without addressing the root causes, nothing changes. Accountability is necessary for prevention, and we need to focus on where these decisions originate.

Ashley: For leaders who want to close the gap between strong policies and actual workplace practices, what practical step can they take right now?

Rob: Leaders need much greater visibility into day-to-day operations. Many traditional safety metrics, such as lost-time injury rates or total recordable incident rates, are not reliable indicators of risk. Many leading indicators simply measure activity rather than whether a safe work environment is being created. High-reliability organizations actively seek out bad news. Leaders should trust but verify. One practical step is conducting a safety stress test. This type of evaluation examines whether a safety program is functioning as intended. It asks whether procedures are being followed, whether work is performed as prescribed, and, if not, why. The gap between work as prescribed and work as actually performed can reveal significant organizational risks, including potential criminal liability. Through a project with the Alberta Construction Safety Association, we are applying the same sociotechnical science used in criminal investigations to evaluate organizational culture at a broader level. A safety stress test is an excellent place to start.

Ashley: Excellent. You've given us a lot to think about. Before we wrap up, is there anything else you'd like our audience to know?

Rob: The most important message is to take this seriously. When the Westray amendments were introduced, there was significant concern about their impact. Over time, however, enforcement has been limited, and many organizations have stopped paying attention. That needs to change. There is already growing interest among police services in Criminal Code investigation training. The Toronto Police Service and Kingston Police have committed to training in this area, and more organizations are following. The goal has never been to send people to jail. The goal is to raise organizational performance standards so that workplace tragedies do not occur in the first place and everyone returns home safely. I encourage leaders to learn more about these issues and to reach out if they would like to discuss them further.

Ashley: Fantastic. Rob Stewart, thank you for joining us today and sharing your expertise.

Rob: Thank you.

Ashley: For more information on all things health and safety, visit our website at ccohs.ca. Thanks for listening, and stay safe out there.