Thank you to our Canadian members who wrote in response to the first part of Amy’s article on OSHA inspections and, specifically, the following quote.

"If, on the other hand, [a Canadian OHS] inspector is there not to conduct an inspection but an investigation, he or she needs a warrant. In contrast to an inspection, an investigation is undertaken in response to suspicion of wrongdoing for the purpose of gathering evidence for use in a prosecution. Since it's essentially a criminal procedure, it implicates civil rights and liberties under the Charter, such as the right against self-incrimination and the right to a fair trial."

Comment 1: Search Warrants Not Needed for Investigations in Manitoba

Ms. Watkins:

I don’t think you checked all the legislation. In Manitoba, whether it’s an investigation or inspection, no warrant is required.  The only time a warrant is required is if the business resides in a personal residence (home).  An investigation is undertaken to determine why the accident occurred and to ensure that controls are put into place so that it doesn’t happen again. Prosecution is in the hands of the crown and has nothing to do with the inspectors.

Name and company withheld at Member’s request

Amy’s Response

You are correct that Section 24(1) of Manitoba’s Workplace Safety and Health Act expressly allows inspectors to conduct OHS searches without a search warrant, even if the inspection is expected to lead to charges. As far as I know, this legislation has not yet been challenged in court. If it is, a court could decide, as courts have in other provinces and in Manitoba under different regulatory authorities, that despite the legislation, inspectors who have reasonable and probable grounds to believe that a regulatory statute has been contravened must obtain a search warrant before they can conduct an investigation that will result in charges. For one such decision in Ontario involving OHS laws, see R. v. Inco, [2001] 54 O.R. [3d] 495. For a Manitoba case upholding the need for a warrant in a regulatory investigation that carried the potential for penalties, see R. v. Van Wynsberghe, [2001] M.J. 594 (requiring warrant for inspection under Public Health Act, despite legislation’s permission to search without a warrant).

Nevertheless, I agree that it is a mistake to use this argument for turning away an inspector who shows up at your door without a warrant. It is better preserved as a legal defence in court to charges that are laid as a result of a warrantless investigation.

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Comment 2: Clarification on When a Warrant Is Required

Ms. Watkins:

In response to your recent article in SafetyXChange, let me clarify your last paragraph concerning the need for search warrants during investigations.
An inspector only needs to obtain a search warrant if they have reached a decision that they have "reasonable and probable" grounds to lay charges under the (OHS) Act. Up to that point they are free to investigate without a warrant. The point at which an inspector reaches "RPG" is somewhat subjective, and can be subject to "Charter of rights" or "abuse of authority" arguments in court after charges are laid. But the need for a warrant is still controlled by this basic thought process.

Michael Chappell
Provincial Coordinator CHSP
Occupational Health & Safety Branch
Ministry of Labour

Amy’s Response

Dear Michael:

Thank you for your clarification. The difficulty lies in determining the inspector’s motives and the likelihood of OHS charges. Understandably, most experts agree that it’s best to let the inspector in regardless of whether he has a warrant, as the Tools policy does. Nevertheless, it’s a good idea to ask the inspector about the purpose of the inspection and whether a warrant exists. It may be possible to limit the inspection based on the answer.

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