Chelsea Rasmussen April 30 2019 Court of appeal refuses to reinstate jail sentence… this time Dentons | Litigation - Canada Chelsea Rasmussen Litigation IntroductionFactsFirst-instance appealIntroductionIn the thousands of Occupational Health and Safety Act prosecutions that have occurred in Ontario history, defendants have been jailed fewer than two dozen times. However, in its recent decision in Ontario (Labour) v New Mex Canada Inc, the Ontario Court of Appeal provided clarity on the sentencing principles in Occupational Health and Safety Act cases. The court clarified that just because jail terms are rare does not mean that they should not be imposed.Facts In 2013 a worker fell approximately 12 feet to his death from an order picker with an open-sided non-slip-resistant platform. The employer knew that the worker was epileptic and that he had fainted twice before at work. The worker had received no health and safety training, the order picker was not equipped with fall protection equipment and the worker was wearing dress shoes. The pathologist inferred that the worker had had a seizure on the forklift and fell while unconscious. The sentencing judge described the circumstances as showing "the highest level of negligence".The Ministry of Labour laid multiple Occupational Health and Safety Act charges against New Mex as the employer and its two directors, Mr Purba and Mr Saini. Each of the three defendants pleaded guilty to two offences. On sentencing, the prosecutor asked for a total fine for New Mex of C$100,000 or higher. Despite that, the sentencing judge imposed a total fine on New Mex of C$250,000 (C$125,000 per count). For Purba and Saini, the sentencing judge concluded that, as the sole directors of New Mex, they would be paying the New Mex fine themselves, so to impose a fine on them personally would only cause more financial hardship. Instead, the judge imposed 25-day intermittent jail sentences and 12 months of probation on both Purba and Saini.First-instance appealAt first-instance appeal, an appeal judge sitting in the Superior Court of Justice allowed the defendants' appeal and held that the sentences imposed had departed substantially from appropriate sentences, making them "demonstrably unfit". The appeal judge varied the appealed sentences and imposed the following fines:C$50,000 on New Mex (C$25,000 per count); andC$15,000 on Purba and Saini (C$7,500 per count).No jail time was imposed.The Crown (Ministry of Labour) appealed to the Ontario Court of Appeal. While the Court of Appeal found that the first-instance appeal judge had made errors in principle which affected his conclusions, it found that the appeal judge had been correct in finding that the fines imposed by the sentencing judge were demonstrably unfit.In its decision, the Court of Appeal discussed the principles of sentencing for regulatory offences at length and recognised the primacy of fines over incarceration in sentencing (ie, in most cases, fines will be more appropriate than jail time). However, the Court of Appeal clarified that just because incarceration is uncommon, this does not mean that it is inappropriate to achieve the goals of sentencing. Courts should not be treating the fact that incarceration is rarely imposed for regulatory offences as a principle of sentencing. In the circumstances of this case, the Court of Appeal's view was that the jail terms were "entirely fit" and "much to be preferred to the modest fines imposed by the appeal judge". However, based on fresh evidence put before the Court of Appeal on consent detailing the directors' difficult life circumstances, the fact that it had been close to six years since the incident and the fallout from the incident had been financially difficult for both directors, the Court of Appeal did not reinstate the jail time.In terms of fines, the court held that a fine imposed on a corporation should not be treated as a fine imposed on a director, because a director is under no legal obligation to pay the corporate fine. The court held that the fitness of an Occupational Health and Safety Act fine can be determined by asking:What amount of fine is required to achieve general and specific deterrence, and would otherwise be appropriate bearing in mind the principles of sentencing, including proportionality, and parity? The court stated that the "answer to that question does not remotely support a $250,000 fine", given that the company was small and financially weak and considering the range of fines imposed on similarly situated offenders in similar cases. Ultimately, the Court of Appeal held that although the fines imposed by the appeal judge against all three defendants had been lenient, they constituted sufficient deterrence and were not demonstrably unfit.The Court of Appeal noted in its decision that jail time has historically been reserved to cases where defendants:are repeat offenders;do not plead guilty; andshow no remorse.In light of the court's confirmation that the rarity of jail time is not a sentencing principle and that jail time would have been appropriate in this case, it will be interesting to see how this decision is applied by courts in future.For further information on this topic please contact Chelsea Rasmussen at Dentons by telephone (+1 416 863 4511) or email ([email protected]). The Dentons website can be accessed at www.dentons.com.