May 8, 2014 By: Peggy King
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Nelligan O'Brien Payne gratefully acknowledges the assistance of Kyle Stout, Student-at-Law in writing this blog post. Read more information on our Articling Program.

On Thursday April 24, 2014, Senator Bob Runciman announced that he will soon introduce a bill in the Senate that, if passed, will amend the Criminal Code to make the assault of on-duty transit operators an aggravating factor in sentencing.

Runciman, the chair of the Senate’s Legal and Constitutional Affairs Committee and a former Solicitor General for the Province of Ontario, announced the initiative at a press conference at Ottawa City Hall, hosted by Councillor Diane Deans, chair of the Ottawa Transit Commission, and attended by representatives of the Canadian Council of Amalgamated Transit Union (ATU), and the taxi industry.

The proposed bill received the immediate support of Robin West, ATU Acting National Director, and is likely welcome legislation for the more than 2,000 Canadian bus drivers who are assaulted annually in the course of their duties, according to a 2011 study.  

In Ottawa, ATU Local 279 reported 62 incidents of violence against OC Transpo drivers last year, ranging from being punched, to knife attacks and sexual assault, and including one incident in which a driver was splashed with a cup of urine. According to Mr. West, transit operators are particularly vulnerable, despite years of increased efforts by the transit industry to reduce the number of assaults, including the installation of cameras in OC Transpo buses.

At the news conference at Ottawa City Hall, Mr. West explained that, “they work in a compartment with no escape route, and many times are in complete or near isolation. All of this leaves operators far more vulnerable than the average worker”. Mr. West noted in particular the additional concern for public safety when operators are assaulted while operating a “20 ton vehicle intermingling with traffic and pedestrians”.

Operators that suffer a traumatic event at work in Ontario may be entitled to benefits and services through the Workplace Safety and Insurance Board (WSIB). Policy 15-03-02 on Traumatic Mental Stress outlines some examples of a sudden, and unexpected event, or cumulative events that may be compensable.

Generally, drivers who are attacked at work, have the option of taking legal action against the at-fault party, or accepting WSIB benefits. Policy 15-01-05 on Third Party Rights of Action, explains under what circumstances injured workers may be able to take legal action. The injured worker is required to sign an election form should they decide to pursue WSIB benefits, which subrogates the right to take legal action to another party (either the WSIB or the employer) depending on their employment circumstances.

Many workers choose to pursue WSIB benefits, instead of a law suit, aware that their ability to recover from their attacker may be minimal. When a driver is faced with making a choice between taking legal action, or having their claim adjudicated by the WSIB, they should seek legal advice to ensure that they are making the right decision. Although many individuals choose the WSIB route, this does not mean that benefits will automatically be paid. The claim will be adjudicated to ensure that the file meets all of the entitlement criteria, for initial and ongoing entitlement.

In his comments following Senator Runciman’s press conference, Mr. West stated that, despite the efforts of the transit industry to decrease violence against public transportation workers, “the most important piece missing in reducing these vicious assaults is a public deterrent”.

Mr. West, like Senator Runciman, cited the recent decision in Her Majesty the Queen v. Patrick Guitard, in which the Court granted a sentence that was shorter than that proposed by defence counsel.

In Patrick Guitard, the accused shoved the driver, causing him to veer into oncoming traffic with 35 passengers aboard. Although the Court described the altercation as “minor”, the victim impact statement indicated that the driver was afraid to return to work, and suffered significant job-related stress as a result of the assault. The Court rejected the Crown’s argument that the fact that the victim was a bus driver should be considered an aggravating factor for the purpose of sentencing. The Court stated:

I do not believe the law supports the notion that bus driver assaults per se attract higher sentences than other assaults. I will not…consider the assault to be aggravated simply because the victim was a bus driver”.

Senator Runciman noted that it would have been more difficult for the Court to come to this conclusion if his bill is passed. The bill will require the Courts to take into consideration as an aggravating circumstance in sentencing, the fact that the victim was a public transportation employee.

Similar legislation was introduced as a private member’s bill in the House of Commons in 2013 by NDP John Rafferty, and Liberal MP Ralph Goodale. Bill C-531seeks to amend the Criminal Code by giving the Courts discretion to increase a charge from common assault to aggravated assault. 

Common assault is considered the lowest-level “violent offence” in the Criminal Code, and has a maximum sentence of six months’ imprisonment and a $5,000 fine. An accused convicted of common assault may also receive a conditional sentence.

Aggravated assault has a maximum sentence of 14 years in prison. Conditional sentences are not permitted for aggravated assault.

Bill C-533, introduced by Minister Goodale, seeks to amend the Criminal Code to make the fact that a victim was a transit operator an aggravating factor for sentencing purposes, regardless of the original charge. The proposed amendment provides that:

Paragraph 718.2(a) of the Criminal Code is amended by adding the following after subparagraph (iii.1)

(iii.2) evidence that the victim was, at the time of the commission of the offence, a person employed in or assigned to a public transportation service, who was engaged in the performance of his or her duties, or a person acting in aid of a person employed in or assigned to a public transportation service.

According to Goodale, this comprehensive requirement will provide a higher degree of protection for public transportation workers, because the Courts are given discretion to increase sentences for all offences committed against workers on duty. Bill C-533 received first reading on June 12, 2013.

The details of Senator Runcinman’s bill have yet to be released. It appears however, that the bill will similarly seek to implement a comprehensive requirement in order to deter assaults against drivers. Details of the bill will be published as they become available.   

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Labour Law