As you may recall, charges under both the Occupational Health and Safety Act and the Criminal Code of Canada were laid against the company Metron for the death of four workers at a Toronto construction site when they fell from a scaffold that did not use proper fall arrest systems. A fifth worker was seriously injured. Metron was convicted under the Criminal Code provisions that make it a criminal offence to direct a worker to perform a task without taking reasonable steps to prevent bodily harm to a worker. The trial judge fined the company $200,000 plus the Victim Fine Surcharge of 15 percent or $30,000.
The Crown appealed and argued that the fine was a manifestly unfit result because it was too low given the circumstances and requested a fine of $1 million, arguing that the court should not restrict itself to the range of penalties under the Occupational Health and Safety Act.
Specifically, the Crown argued:
- The sentencing judge erred in relying on the sentencing range developed under the Occupational Health and Safety Act regulatory regime which was provincial to determine the sentence in the case for criminal negligence causing death – this was an error because the Criminal Code attracted a higher degree of moral blameworthiness
- The seriousness of the offence under the Criminal Code could be seen when examining the maximum punishment for each offence under the two pieces of legislation – there was clearly an intent to provide an additional level of deterrence with the enactment of the Bill C-45. As a result, the sentencing judge failed to properly consider the principle of proportionality found in section 718.1 of the Criminal Code, (related to sentencing)
On September 4, 2013, the Ontario Court of Appeal concluded that the penalty for such a serious offence with such a tragic consequence must be increased to ensure deterrence. Thus, Metron’s fine was increased to $750,000.
The Court of Appeal noted that the concepts of fault and blameworthiness were distinguishing features between offenses under the Criminal Code and other regulatory regimes including the Occupational Health and Safety Act.
The maximum penalty under the Occupational Health and Safety Act was $500,000 fine for an organization and a $25,000 fine for an individual.
On the other hand, the offence of criminal negligence causing death under the Criminal Code had a maximum penalty of life imprisonment for an individual with no maximum set fine, and showed that this was a much more serious offence at the high end of a continuum of moral blameworthiness. What’s more, this offence was not intended to duplicate, replace or interfere with the provincial health and safety legislation; it was intended to provide additional deterrence for morally blameworthy conduct that amounted to a wanton and reckless disregard for the lives or safety of others.
There was no doubt that the company, Metron, was convicted of this offence because of the marked and substantial departure from conduct of a reasonably prudent person in the circumstances. The consequences were the death of four workers and the serious permanent injury of a fifth worker.
Although the sentencing judge was correct to identify the absence of a maximum fine in the Criminal Code for criminal negligence causing death, the need to consider additional factors, and that aggravating facts and previous convictions had to be proven beyond a reasonable doubt, the reasons were silent on the company’s wanton and reckless disregard for the lives and safety of others in the higher degree of moral blameworthiness and gravity associated with the criminal conviction.
Therefore, though the sentencing judge was entitled to consider the range of sentences under the provincial legislation, there was a failure to appreciate the higher degree of moral blameworthiness and gravity associated with the criminal conviction and that was an error.
After considering the ability to pay, the goal of the section of the Criminal Code, and the fact that the sentence was manifestly unfit, it became clear that the sentence had to be raised. It was interesting to note that $200,000 was actually at the lower end of the provincial cases involving fatalities. And here, this was a situation where there was a conviction of criminal negligence causing death where six workers were involved, four of whom died and one of whom was permanently injured. The victims were young and had young families.
It is important to remember that the purpose of sections 217.1, 219 and 22.1(b) of the Criminal Code is to trigger responsibility by the corporation for the conduct and supervision of its representatives. The criminal negligence in this case was extreme.
The sentence of $200,000 was indeed manifestly unfit and had to be raised to $750,000, which is over three times the net earnings of the business in its last profitable year.
First Reference Human Resources and Compliance Editor