In June of 2004, a worker commenced a constitutional challenge to an Alberta government policy which excluded his lawyer from being present during a compelled statement under section 19 of the Alberta Occupational Health and Safety Act. The worker commenced the challenge after government investigators sought to re-interview him. During the first interview, his lawyer was present; however, during the second interview, the worker was directed by the OHS officers not to bring his lawyer.
In Alberta, if a person has information relating to a workplace accident and a designated OHS officer requests it, they are required under provincial legislation to provide that information to the officer. It is an offence to refuse to provide such information or to knowingly give false information to the OHS officer. Both of these offences can result in jail time of up to six months.
The worker challenged the government policy and not the OHS legislation itself. The reason for this was because the legislation in question did not expressly give OHS officers the authority to exclude a person’s lawyer from being present during a compelled statement. Instead, the Department interpreted the wording of the legislation to include such authority. The worker disagreed and challenged the policy on both jurisdictional and constitutional grounds. In December of 2005, the challenge was dismissed at the Court of Queen’s Bench level with the presiding justice concluding that the policy was “procedural” in nature and therefore the OHS investigators were entitled to establish their own rules about how the interview could be conducted. Oddly enough, the presiding justice also commented that having legal counsel present was likely in the interests of everyone involved. The worker appealed the decision to the Alberta Court of Appeal.
In February 2007, the Alberta Court of Appeal declined to hear the appeal once they confirmed that the Crown would not be laying charges as a result of the workplace accident which gave rise to the investigation. With no charges having been laid and the two-year limitation period for doing so having expired, the Alberta Court of Appeal declined to hear the appeal because the issue had become moot. The Court preferred dealing with the issue when and if future charges are actually laid, or at least could be laid. Accordingly, the challenge ended 32 months after it began.
As of the date of this newsletter, the Department of Workplace Health and Safety continues to enforce its ban on lawyers being in attendance in the interview room. There are a few cases currently making their way to court that could raise this issue again and we will keep you apprized of new developments. Additionally, some parties have commenced informal talks with the government to determine whether there is some form of compromise which can be reached that addresses the concerns of all involved.
In the interim, interviewees should remember that the ban on the presence of legal counsel only applies to OHS officers within the Province of Alberta. The ban does not apply to other types of investigating officers from other provincial departments in Alberta. It also does not apply to police officers or federal OHS officers.
In addition, an interviewee should never assume he or she is protected by the Alberta rule of evidence which limits the use which can be made of his or her statement. Generally, statements given to Alberta OHS officers cannot be used as evidence against the person giving the statement. However, there are some exceptions to this rule. For example, the statement can be used against its maker for the purposes of proving the interviewee refused to provide relevant information about the workplace accident, or that the person knowingly gave false information to the OHS officer. The authority for this rule is found in section 19 of the Alberta OHS Act.
More importantly, in some circumstances, the statement given to an Alberta OHS officer could be used against the person with respect to a criminal charge even though the statement would be inadmissible in the context of an OHS charge. The reason for this is because the province cannot legislate in a federal area. Criminal law is a federal area and beyond the jurisdiction of the province. Therefore, the provincial rule of evidence limiting the use of the statement, in certain circumstances, may have no effect on the evidence called in the criminal case. However, there are other protections that can be invoked in a criminal matter; therefore, legal advice should be sought with respect to those protections.
Finally, it is important to note that the present Alberta government policy does not prevent a person from seeking legal advice before or even during a compelled interview under section 19 of the OHS Act. The policy only prevents lawyers from being present during the interview. Therefore, a person may, at any time during the process, ask to speak to a lawyer in private. According to the present policy, the request to speak to counsel will be respected by OHS officers providing it is “reasonable” under the circumstances. What “reasonable” means in this context remains to be seen.