Is jail more likely?

Recent Canadian cases indicate new direction

 By Jeremy Warning

Custodial sentences are common for those convicted of criminal offences. However, they have been far less commonly imposed on those convicted of regulatory offences such as under health and safety legislation. Indeed, the approach in regulatory matters has been that jail sentences were to be a sentencing measure of last resort imposed with restraint by the courts.

Monetary penalties have been most commonly imposed on individuals convicted of health and safety offences. That sentencing regime likely developed because regulatory offences are, generally, negligence-based offences rather than intent-based offences. However, some recent decisions suggest that a shift away from monetary penalties as the typical sanction is beginning and there is a movement towards a system in which individual defendants are more likely to receive a custodial sentence.

Prison always an option

All health and safety legislation in Canada provides for imprisonment. The potential length of a custodial term varies from jurisdiction to jurisdiction and ranges from a potential one-month term (per offence) in Prince Edward Island to possible two-year terms (per offence) in Saskatchewan, Nova Scotia, the Yukon (where sentences of up to two-and-a-half and three years are available for subsequent offences), and under the Canada Labour Code.

Traditionally, in order for the Crown to seek a custodial sentence, a defendant must have engaged in egregious conduct such that the defendant’s behaviour is more akin to intentional action than negligence. Yet a scan of recent cases suggests that health and safety prosecutors may begin to seek custodial sentences with greater frequency.

First, looking at a case from British Columbia: British Columbia (Workers’ Compensation Board) v. Moore, 2012 BCSC 109 (CanLII)). The British Columbia Workers’ Compensation Board obtained a court order enjoining the operator of a demolition business from:

     doing business in the asbestos abatement business in the demolition or drywall removal business, and without limiting the generality of the foregoing, from providing hazardous material inspections and reports, environmental assessments, hazardous materials surveys and testing, asbestos abatement services and testing, until further order of the court.

The business operator did not abide by the court order and continued to offer the prohibited services. In doing so, the business operator may have exposed unprotected workers to asbestos. He was found guilty of civil contempt of court for breaching the court order and sentenced to 60 days in jail. This was significantly less than the six- to 12-month term sought by the prosecution.

The case represents the more traditional use of custodial sentences for health and safety related matters as the sentence imposed on the business operator resulted from the intentional breach of a court order. What is notable about the case is that the Workers’ Compensation Board sought a significant period of incarceration notwithstanding that custodial sentences for civil contempt are approached with the same reservation as custodial sentences for health and safety offences.

Most recently, in Ontario, a supervisor was sentenced to 45 days in jail for failing to ensure the safety of a worker who fell off a roof (Ontario (Ministry of Labour) v. J.R. Contracting Property Services et al., 2014 ONCJ 115 (CanLII)). While removing shingles from a one-storey bungalow, the worker slipped, rolled off the roof and landed on a walkway below. The injury resulted in permanent paralysis of the lower body. The worker testified at trial that he had not been trained in the use of fall protection equipment, had not used it in the past, and that he had not been provided with any fall protection equipment.

Supervisor convicted

Following a trial, the supervisor was convicted of failing to ensure the worker wore fall-protection devices, as required by law, and of failing to ensure that an adequate form of fall protection was provided. The legal principle that a defendant should not be sentenced more than once for the same offence was applied such that the supervisor was sentenced only for the offence of failing to ensure that an adequate form of fall protection was provided.

Though the supervisor had no prior health and safety convictions, the Crown sought a custodial sentence because the supervisor had previous convictions under environmental legislation for which the supervisor had been fined and jailed. Notably, the supervisor had, but for one payment, not been paying the fines imposed for those environmental offences. The court considered these prior convictions and the supervisor’s non-payment of the previous fines imposed on her when imposing sentence for the health and safety offence.

The court determined that the supervisor’s past behaviour, both in not complying with the law and in not satisfying the penalties imposed, indicated that a monetary penalty would not be appropriate. On that basis, the court imposed a 45-day jail sentence and required the supervisor to serve the sentence all at once rather than intermittently over a series of weekends. In Ontario, any sentence of 90 days or less could be served intermittently, which reduces the impact of the sentence on the defendant. The fact that the court did not grant an intermittent sentence shows that the court intended to impose a harsher sentence on the defendant.

Aggravating factors

Aside from the sentence imposed, the J.R. Contracting case is also notable because the court held that the Regulatory Modernization Act (an Ontario statute enacted in 2008 that, principally, provides for information sharing between provincial ministries and bodies) provided the authority for the supervisor’s environmental convictions to be treated as an aggravating factor when sentencing for the health and safety violation.

As far as the writer is aware, this is the first time that these provisions have been used by the Crown in sentencing for a violation of Ontario health and safety legislation. It is clear from the case that the supervisor’s prior convictions and unpaid fines were a significant factor in the court’s decision to impose a custodial sentence in a case that might otherwise have attracted a significant monetary penalty but not resulted in jail time. This is a significant development because it establishes further factors that could, if used, increase the probability of a custodial sentence.

The third case of note is a second Ontario case, R. v. Roofing Medics Ltd., 2013 ONCJ 646 (CanLII), from November, 2013. Similar to the J.R. Contracting case, this matter also involved a fall at a construction project. However, in the Roofing Medics case, the worker that fell was fatally injured. After the accident, the proprietor of the company provided false information to police and health and safety authorities regarding the circumstances of the accident. In essence, the proprietor told authorities that the accident did not happen in the course of work (which would have meant that Ontario health and safety laws were not engaged). The proprietor revealed this deceit before it was uncovered by the authorities. Ultimately, he was charged, as a supervisor, under health and safety legislation and pleaded guilty to two offences, failing to ensure the proper fall protection was used and providing false information to a health and safety inspector.

At sentencing, the Crown entered a series of Event Information Forms into evidence. The forms represented the frequency with which the Ontario Ministry of Labour had been notified of fall incidents. This evidence proved quite influential with the court and resulted in the court finding that monetary penalties were an inadequate deterrent to non-compliance with legislated fall protection standards. On the fall protection charge, the court determined that a 10-day custodial sentence was necessary to send the requisite deterrent message and, notably, wrote:

     The reality is that fines have not been sufficient deterrence for these offences […]. The offence and its consequences are serious enough to warrant more intrusive sanctions.

     The Crown sought a sentence of 30 days […] on the fall arrest offence. For future offenders, such a sentence may well be appropriate; it may even be on the low side. […] The sentence needs to be of sufficient length to deter other offenders by sending a message that jail is a sanction that the courts will use for fall arrest offences. […]  I hasten to add that if workers continue to fall off roofs in contravention of fall arrest regulations, supervisors can expect that jail sentences will be longer and may well become the norm. I note that the maximum jail sentence for this offence is 12 months.

The proprietor was also sentenced to five days in jail for providing false information, meaning a total custodial period of 15 days was imposed.

It is too soon to determine how influential the court’s comments, about monetary penalties being an insufficient deterrent, will be in future cases. However, given the nature of the comments made by the court, it is likely that these comments will be used by prosecutors in future cases.

More aggressive approach

Overall, the lesson these cases provide is that, at least in contested sentencing matters, the Crown is moving towards a practice of placing extensive factual records of all potentially aggravating factors before the courts. This may indicate a more aggressive approach in which custodial sentences will be sought more frequently in cases involving serious injuries or risk of harm. Such an approach dovetails with the evolution of enforcement practices in many jurisdictions.

Health and safety regulators have been moving from a reactive system of enforcement (where the regulator engages the workplace parties because of some workplace event) to a more proactive system involving more frequent and targeted workplace inspections. Indeed, in Ontario, one of the recommendations made by the government panel that reviewed the provincial health and safety system in 2010 was for there to be a consistent approach of tough enforcement for serious and wilful violations of health and safety standards. We may, therefore, be seeing a change in approach to sentencing which will see jail sentences imposed more frequently and make them more likely in cases involving serious injuries or incidents.

Jeremy Warning practices occupational health and safety, employment and labour law with Mathews, Dinsdale & Clark LLP in Toronto.  

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