Safety First: Laboratory Safety and the Criminal Code

A Scientific American article on the safety of academic laboratories recently caught my eye. The article entitled Are University Labs Criminally Dangerous? revealed a systemic weakness in the safety standards on campus labs resulting in some serious and at times fatal lab incidents.

One such incident in 2008 killed She­harbano “Sheri” Sangji, a 23 year-old lab research assistant at UCLA. Sheri died eighteen days after chemicals she was working with burst into flames and spread to her clothing. She was not wearing a protective lab coat as required by safety code regulations.

Now felony charges have been laid against the U.C.L.A. chemistry professor in charge of the lab, Patrick Harran, and the Regents of the University of California for criminally breaching lab safety codes under the occupational health and safety code. Harran, if convicted, faces up to 4.5 years imprisonment.

UCLA vigorously denied any criminal responsibility calling the charges “outrageous.” In the statement released by UCLA after the charges were laid, the University questioned the “truly baffling” charges, which were inconsistent with the University’s co-operation in an “exhaustive” safety investigation, the subsequent finding there was no “willful violations” by UCLA, and the fining of the University under regulatory offences. The University was fined $31,000 by the California Division of Occupational Health and Safety in 2009 as Sangji was not properly trained, had not been provided with protective clothing, and had not addressed “deficiencies noted in an internal safety inspection two months before the fatal fire in Harran’s organic chemistry lab, including a finding that workers were not wearing lab coats.”

The arraignments on the charges have been delayed until March 7, 2012.

Universities in Canada implement their own lab regulations, which tend to require even higher safety standards than the already strict lab safety guidelines. Safety training is even an integral part of school science curriculum. Individual school boards also set safety guidelines.

However, industrial lab accidents are not unknown in Canada, even with a strict regulatory regime. In 2008, approximately two months before the UCLA incident, Roland Daigle, working for the drug manufacturer Sepracor Canada as a lab technician, was exposed to vapours from trimethylsilyl diazomethane while doing a test and subsequently died after his lungs filled up with fluid over an eighteen hour period. Similar to the UCLA offences, the company was charged under the Nova Scotia Occupational Health and Safety Act with “failing to ensure adequate personal protection equipment was in place in Daigle’s work area, failing to ensure that an adequate venting system was in place, failing to ensure he was instructed in the safe use of the chemical, and failing to ensure that no person would disturb the scene of an accident after it occurred.” In a May 2011 plea negotiation, Sepracor pleaded guilty to one charge of failing to provide ventilation and was fined $45,000. The Daigle Family publically denounced the plea negotiation as a “slap on the wrist.”

Of course, the Sepracor incident was dealt with under the provincial regulatory framework and such offences, being public welfare offences and not criminal, do not typically attract serious sanctions. The maximum punishment under the Nova Scotia OHSA is a fine of not more than $250,000 and/or imprisonment not exceeding two years.

However, 2004 amendments to the Criminal Code created under s. 217.1 a legal duty to for “Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task."

Such a legal duty can underpin a criminal code charge, which requires as an element of the offence a failure of an accused to act where there is a legal duty to do so. Thus, a corporation or manager may be charged under s. 219(1)(b) of the Criminal Code with criminal negligence by “omitting to do anything that it is his (legal) duty to do” and “shows wanton or reckless disregard for the lives or safety of other persons.” To date, only two employers have been convicted under this new workplace duty.

The question whether regulatory behaviour should be criminalized has been much debated. On one hand are the facts of each particular case such as the deaths of Roland Daigle and Sheri Sangji. On the other hand are deeply held fundamental principles of our criminal law, which cannot and should not be lightly set aside. I will leave this fascinating, yet complex discussion for another posting, but what is clear, as seen by the Canadian and American cases, is that our workplaces can be “criminally dangerous.”