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08 February 2017
Consider the following scenario. An employee witnesses a workplace incident. Soon after, enforcement officers are on site investigating the incident ‒ they may be police officers, health and safety inspectors or environmental officers. One of the investigating officers asks the employee to assist and provide a witness statement.
What should the employee do? What are the employee's rights?
This split-second decision can have long-term and far-reaching legal implications for that employee, the employee's co-workers and the organisation. Employees in such a situation might risk being charged with obstructing justice or inadvertently providing evidence to implicate themselves or others.
Knowing when employees are entitled to remain silent and when they are compelled to give a statement is vitally important. This knowledge comes from an understanding of the significant differences and evolving investigative powers of police officers, health and safety inspectors and environmental officers during and after a workplace incident.
Powers of investigation
A police officer attending a workplace to investigate an incident is there to gather evidence. This includes taking statements that might support the laying of criminal charges against employees or the employer.
In Canada, everyone has the right to remain silent and consult counsel before providing the police with a statement. This is a fundamental right protected under Section 7 of the Charter of Rights and Freedoms. This protection exists unless and until it is voluntarily waived by the individual.
Steps that invoke the right to silence
The right to silence is (fairly) straightforward. A police officer cannot compel a statement from an employee. In fact, if a statement is going to be relied on as evidence, police officers should:
These steps are often referred to as a 'warning' or being 'read your rights'. If, after the warning, a person opts to waive the right to silence, then his or her statement can be used against that employee, co-workers and the employer.
Remain silent and delay or refuse
When asked to provide a statement to the police, a person should generally refrain until receiving legal advice. Despite it being difficult to postpone or decline providing a statement to the police, it is a means of protecting employees, co-workers and employers.
In one criminal case in Canada, an accused asserted his right to silence 18 times. Nonetheless, the police continued to press for a statement. Once given, that evidence was used to convict.
The police are trained to gather statements and evidence and can make it difficult to engage the right to remain silent. Knowing the rights and liabilities beforehand is the best way to ensure protection.
Powers of inspection and compellability
On the other hand, health and safety inspectors and environmental officers have the power to compel witness statements during workplace inspections. Provincial and federal legislation in Canada grants these officers broad and largely unfettered power to make inquiries of any person relevant to an inspection.
Therefore, at the preliminary stages of an inspection, if an employee refuses to cooperate by giving a statement, a serious charge of obstructing justice could be laid against that individual.
Obligations and cooperation
Employees and employers must be aware of their responsibility to cooperate during an inspection. It is best practice to be prepared now for the possible arrival of, and requests for a statement by, health and safety inspectors or environmental officers (for further details please see "Knock knock: are you prepared for a search warrant").
Evolving powers of investigation
To complicate the matter, when a workplace inspection becomes an investigation, health and safety inspectors and environmental officers have a legal obligation to inform employees of their right to remain silent and seek counsel. At this point in a workplace investigation an employee has the right to delay or decline providing a statement.
Legally, it is said that this 'switch' occurs when an investigating inspector or officer forms the opinion there are "reasonable and probable grounds" that a charge can be laid against the employee. It is at this rather nebulous point that an investigator must provide the same warning as a police officer. Accordingly, this is also the moment that an employee has the right to remain silent and should exercise it until receiving legal advice.
Understanding when an employee has the right to remain silent is crucial to minimising legal actions against employees, co-workers and employers.
For further information on this topic please contact Deanah Shelly at Fasken Martineau DuMoulin LLP by telephone (+1 416 366 8381) or email (firstname.lastname@example.org). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.
This update was reprinted with permission from Northern Exposure, a blog written by lawyers in the labour, employment and human rights group at Fasken Martineau, and produced in conjunction with HRHero.com.
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