What if this happens at your Canadian facility: One of your employees witnesses a workplace incident. Soon, 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 coworkers, and your organization. Employees in such a situation might risk being charged with obstructing justice or inadvertently providing evidence to implicate themselves or others.
Right to silence
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: When a police officer attends a workplace to investigate an incident, the police officer is there to gather evidence. This includes taking statements that might support the laying of criminal charges against employees and/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 your 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 upon as evidence, police officers should do the following:
- Identify themselves as police officers;
- Request the employee to provide a witness statement;
- Inform the employee of the right to remain silent and seek counsel before providing a witness statement; and
- Inform the employee of the right to waive Charter protection.
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 the person’s statement can be used against that employee, against coworkers, and against the employer.
Recommended approach when in police investigation
Remain silent and delay/refuse: When asked to provide a statement to the police one should generally refrain until receiving legal advice. Despite it being difficult to say, “No thank you, Officer, not now” and to postpone or decline providing a statement to the police, it is a means of protecting yourself, your coworkers, and your employer.
In one particular 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 your rights and liabilities before being confronted with the situation is the best way to protect yourself.
Health & safety inspectors and environmental officers
Powers of inspection: compellability: At the other end of the spectrum, health and safety inspectors and environmental officers have the power to compel witness statements during workplace inspections. Provincial and federal legislation across the country 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 were to refuse to cooperate by giving a statement, a very serious charge of obstructing justice could be laid against that individual.
Be aware of your obligations and cooperate: Employees and employers must be aware of their responsibility to cooperate during an inspection. Similar to the recommendations provided in an earlier article in this space on search warrants, a best practice is to be prepared now for the possible arrival of, and requests for a statement by, health and safety inspectors or environmental officers.
Health & Safety inspectors and environmental officers
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 moment in a workplace investigation an employee has the right to delay and/or decline providing a statement.
Legally, it is said that this “switch” occurs when the 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 where the investigator must provide the same warning as a police officer. Accordingly, this is also the moment that the employee has the right to remain silent and should exercise it until getting legal advice.
Understanding when an employee has the right to remain silent is crucial to minimizing legal actions against your employees, coworkers, and employer. Our lawyers can assist your organization in this regard before, during, or after a workplace incident.
Deanah Shelly has a broad labour and employment practice, with a general focus in occupational health and safety, regulatory, workers' compensation, and criminal prosecutions. Deanah provides timely and practical advice to clients in a wide range of industries and areas including OHS regulatory compliance and due-diligence.