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by Cedric Hughes, Barrister & Solicitor with regular weekly contributions from Leslie McGuffin, LL.B.   

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Health and Safety Issues and Criminal Law

Article Number: 
720

In late March, Road Rules addressed the law in Canada concerning random drug and alcohol testing in unionized workplaces.  This subject arose from two stories occurring coincidentally about “employees in safety sensitive positions” namely transporting passengers.

One employee was a Sunwing Airlines pilot, who pleaded guilty to having care and control of an aircraft while impaired.  At the time of writing the pilot was in custody pending his sentencing on April 3rd.  On that date an Alberta Provincial Court Judge Brown sentenced him to eight months in jail with a one year flying prohibition, a punishment the prosecutor Rose Greenwood said will send a strong message to the profession. “It gives a message to the pilots across Canada, and … across the world, that if you fly impaired then you’re going to meet a jail sentence.

The lack of Canadian cases prompted the judge to consult US, UK, and Australian cases in arriving at an appropriate sentence.  Judge Brown identified the factors mitigating against a longer term as including his remorsefulness, his efforts both before and after the offence to overcome his alcohol addiction, and the high level of public scrutiny he had endured noting, “He has been thoroughly shamed, especially in Canada, where he has been working, and at home in Slovakia.”

The second story concerned the ruling also on April 3rd by Ontario Superior Court associate chief justice Frank Marrocco, rejecting an application by the union representing employees of the Toronto Transit Commission (TTC) for an injunction against the addition of random drug testing in the TTC’s employment policy.  This addition was made after a TTC bus rear-ended a truck, killing a 43-year-old female passenger in the summer of 2011.

At the time of the bus accident the driver agreed to a breath test but refused a drug test and he was later charged with possessing marijuana.  In dismissing the union’s application, the judge said random tests “will increase the likelihood that an employee in a safety-critical position, who is prone to using drugs or alcohol too close in time to coming to work, will either be ultimately detected when the test result is known or deterred by the prospect of being randomly tested.”

Road Rules had noted that before this ruling, legal experts were concerned that a certain type of social correctness might prevail over the demands of public safety.  In both cases, however, these rulings support the ascendancy of public safety concerns over all other factors.

And in relation to the air pollution and health topic, the repercussions from Volkswagen’s diesel engines emissions scandal continue.  Reportedly, on March 16th, a US judge refused to set a bond and release from custody a German Volkswagen executive arrested while vacationing in Florida.  The VW executives’ lawyers argued he was willing to risk US$1.6 million in assets to persuade the court that he would remain in Detroit for subsequent court hearings.  But the prosecution argument that he would be unreachable if he fled back to his home in Germany prevailed.  So, if internet based reports are accurate, the executive, who has pleaded not guilty to charges of conspiracy and fraud may remain locked up while his criminal case moves through the courts.  A startling preliminary outcome, to be sure.

Cedric Hughes

huges & company law corporation vancouver

 

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