Ontario’s untenable exclusion of inmates from Occupational Health and Safety Act | Shane Martinez
Wednesday, July 27, 2022 @ 9:22 AM | By Shane Martinez
Section 18(1) of Regulation 778 to Ontario’s Ministry of Correctional Services Act (MCSA) sets out that “Every inmate shall perform work in the institution and participate in any institutional program to which the inmate is assigned unless the inmate is medically exempt from performing the work or participating in the program.”
This provision has enabled Ontario to benefit from the use of inmate workers for many years. One of the ways it has done so is through Trilcor Correctional Industries — a provincial Crown corporation with production facilities at jails across the province. Trilcor uses the labour of inmates serving sentences in provincial jails to produce an array of items for the Crown ranging from inmate garments to licence plates. The benefit to the state is particularly pronounced considering that inmates are excluded from the Employment Standards Act, meaning that they need not be provided with pay, breaks, or other basic rights under the law.
Equally concerning is the intentional omission of inmate workers from the protections afforded by Ontario’s Occupational Health and Safety Act (OHSA). The law’s definition of “worker” excludes inmates of a correctional institution or like institution or facility who participate inside the institution or facility in a work project or rehabilitation program. This definition was used when the law was passed in 1979, and therefore predates the enactment of the Charter (although it has survived multiple amendments to the law since that time). Then Minister of Labour Robert Elgie exemplified the prevailing punitive mentality of the time when he commented in the legislature that “we are dealing with people who are in conflict with society,” and that the exclusion was required because “They have rejected the regulations and so forth that apply to all of us in society. They have rebelled against it.”
Examining the purpose and practical effects of the OHSA reveals how essential it is to keeping workers safe in all industries. Courts and tribunals have observed that the OHSA exists to “maintain and promote a reasonable level of protection for the health and safety of workers in and about their workplace,” and that it is “designed to protect workers from injury resulting from both advertent and inadvertent acts in the workplace.” This is achieved in part by providing workers with a right to know about workplace hazards, requiring joint health and safety committees and setting standards for the use of hazardous materials and toxic substances. The legislation also empowers workers to refuse unsafe work, prohibits employers from reprising against those who exercise their rights under the OHSA and provides enforcement mechanisms to ensure compliance.
As the OHSA has developed over the last four decades, its unchanged definition of “worker” has not aged well. This is evidenced by its incompatibility with the expectations established by the United Nations’ Standard Minimum Rules for the Treatment of Prisoners, commonly known as the Mandela Rules. Rule 101 states that “The precautions laid down to protect the safety and health of free workmen shall be equally observed in institutions.” It goes on to require that “Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by law to free workmen.”
Excluding inmates from workplace health and safety protections also appears to carry the trappings of a potential s. 7 Charter violation. The Crown’s use of the MCSA to mandate forced labour by incarcerated persons, while concurrently excluding that same group from the OHSA protections that would protect them from serious risks of physical harm on the job, is seemingly inconsistent with the principles of fundamental justice. There is also a question as to whether this legislative arrangement represents cruel and unusual treatment contrary to s. 12 of the Charter.
Denying inmates basic health and safety protections may be beneficial to a state seeking to maintain unfettered control over a pool of indentured labourers. It is not, however, in the interests of society at large. Nothing is gained by arbitrarily extending the punitive aspect of a sentence to withhold safeguards that are proven to prevent injuries, save lives and ensure workplace accountability. In addition to unnecessarily jeopardizing all those on the shop floor, such treatment is fundamentally at odds with rehabilitation — purportedly one of the main objectives of carceral institutions.
The overwhelming majority of those who enter provincial jails will ultimately reintegrate in our communities. Their experiences on the inside will impact and shape who they are when they return. Our collective well-being is therefore improved when the human dignity of incarcerated persons is respected and granted protection under the law. Enlightening on this point are the words of Nelson Mandela, who wrote, “It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”
Shane Martínez is a criminal defence and human rights lawyer at Martínez Law, and an adjunct professor of Prison Law, Policy & Reform at Osgoode Hall Law School. He can be found on Twitter @martinezdefence.
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