Powers of the Health and Safety Officer to Enter any Defence Establishment, Work for Defence or Materiel - 700-5-IPG-040

1. Subject

Application of sub-section 141.(1) of the Canada Labour Code - Part II - Powers of Safety Officer.

2. Issue

To clarify Labour Canada's position with respect to entry to any defence establishment in light of a Department of National Defence (DND) policy document specifying "The procedures and conditions for authorized entry of Labour Canada safety officers to… DND establishments…" promulgated by the Director of Safety General, National Defence Headquarters, Ottawa. Essentially, the policy states that entry MUST be requested in advance from the Commanding Officer (CO) of the base, station or unit concerned, and that requests that conform to this policy will be granted whenever possible.

3. Question

Do Health and Safety Officers require DND authorization or consent to exercise the powers conferred by the Code?

4. Conclusion

It is Labour Canada's position that the DND procedures and conditions convey a message that is contrary to the powers conferred on a safety officer by the Code. Health and Safety Officers acting "…in the performance of their duties…" within the meaning of subsection 141.(1) do not require DND authorization or consent to exercise those powers. Indeed, the principle of ancillary powers and their exercise is clearly set out in subsections 31.(2) and (3) of the federal Federal Interpretation Act , R.S.C. 1985, c. I-21 as follows:

"31.(2) Where power is given to a person, officer or functionary to do or to enforce the doing of any act or thing, all such powers as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing are deemed to be also given."

"31.(3) Where a power is conferred or a duty imposed, the power may be exercised and the duty shall be performed from time to time as occasion requires."

The powers of the Health and Safety Officer are an essential part of the enforcement process and an essential preliminary step in the exercise of his/her duties under subsections 127.(1), 129.(1) and 145.(1) and (2).

However, Labour Canada Health and Safety Officers must adhere to the requirement of subsection 5.(1) of the Defence Controlled Access Area Regulations (SOR/86-957, 11 September 1986) and obtain a "pass", where required, prior to entry to a "controlled access area". This is not a contradiction in terms since this condition is far less onerous than those in the aforementioned policy, particularly since it does not affect a specific class of persons such as Health and Safety Officers.

For example, most Canadian Forces Bases require the driver of a motor vehicle to stop at the front gate, produce identification/drivers licence, etc., prior to obtaining a "vehicle pass" to enter the base. Were that person to go on to visit a specific building, he/she may again be required to produce identification and sign in prior to obtaining a "visitors pass"(and in some cases, have to wait for an escort) in order to proceed further. In fact, similar pass/security requirements are practiced by other federal departments.

The Health and Safety Officer will, upon arrival, request to see the officer-in-charge of the facility concerned to introduce himself/herself and explain the purpose of the visit. At the same time, the Health and Safety Officer can arrange for a "debriefing" to review his/her findings before leaving the premises.

Should DND authorities refuse entry to any defence establishment or work for defence or otherwise obstruct or hinder a Health and Safety Officer engaged in carrying out his or her duties under the Code, action should be undertaken in accordance with the Labour Program’s Compliance Policy.