In R v Allen Services & Contracting Ltd (2018 NWTTC 03 (CanLII)), the Territorial Court of the Northwest Territories considered and accepted a joint submission from the crown and defence, sentencing the employer to a C$100,000 fine.
The matter arose following a workplace incident in June 2016, in which a worker was killed. The worker had been operating a vibrating roller packer used to compact a new access road in the Northwest Territories. The packer rolled off the road and the worker either fell or attempted to jump out of the packer as it rolled over. The packer rolled on top of him, killing him.
The employer faced a number of charges and pled guilty to a charge of failing to ensure that the worker was properly supervised.
The court considered the significance of a joint submission, noting that it is normally the result of a negotiation process between lawyers. This process is important to the administration of justice; thus, the courts should defer to a joint submission within the bounds established by the Supreme Court of Canada in an earlier case. The Supreme Court of Canada had stated that when considering a joint submission on sentence, the trial judge should accept the submission unless doing so:
- would bring the administration of justice into disrepute; or
- would otherwise be contrary to the public interest.
This would occur where the joint submission is such that it would be "markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a breakdown in the proper functioning of the criminal justice system". Therefore, the trial judges should "avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts".
To apply this test, the court reviewed established sentencing principles, noting that the ultimate aim of imposing a significant fine was behaviour modification, both specific deterrence (deterring the employer from similar offences in the future) and general deterrence (deterring other employers from committing similar offences). However, the sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender.
The court applied the following factors and considerations when assessing the amount of the C$100,000 fine proposed by the joint submission:
- Nature of the offence – there was a recognised danger that the packer could roll over. It was equipped with a rollover protection structure and had several warning labels stating that seat belts must be worn. Evidence proved that the worker had not been wearing a seat belt at the time of the incident. However, there was no evidence that anyone had told the worker to wear his seatbelt. The court found that the worker should have been instructed to wear a seatbelt and that his supervisor should have ensured that he was wearing a seatbelt and not operating the packer on or near an inclined surface. The failure to do so was a serious omission.
- Nature of the offender – the employer was a relatively small, privately-held corporation with revenue in 2017 of slightly over C$1 million.
- Degree of blameworthiness – the court recognised that this was not a situation in which the employer had taken chances to make money. However, a young worker with no formal training had been put in charge of heavy equipment without proper instruction or supervision. Instruction and supervision with respect to the safe operation of the packer should have been integral to the company's operations.
- Capacity to pay a fine – given the employer's revenue in past years, the court was satisfied that C$100,000 was a significant amount and would have a substantial deterrent effect.
- Maximum fine under the legislation and range of fines – the maximum fine under the Northwest Territories Safety Act was C$500,000. On review of similar cases, the court was satisfied that C$100,000 was within the range of fines normally imposed for this type of offence.
- Previous convictions – the employer had no history of safety or other regulatory infractions.
- Harm and potential harm – the worker died as a result of being crushed by the packer. Had he been wearing his seatbelt, he likely would have been held in the protective structure and protected.
- Contributory negligence – the worker should have been wearing his seatbelt and the court assumed that he would have seen the prominent warning labels; therefore, he chose not to wear his seatbelt. However, he was a young man who would have relied on his supervisors and may have believed that there was no real possibility of a rollover. While levels of tetrahydrocannabinol were found in his blood, indicating that he had consumed hashish or marijuana in the hours before the accident, the evidence was not properly before the court and did not establish that cannabis consumption was relevant to his death. However, the court recognised that this may have been one of the matters forming the negotiations for the joint submission.
- Post offence conduct – the employer had spent over C$37,000 to fly the worker's family to the Northwest Territories on more than one occasion and had created a memorial to the worker. The employer had cooperated with the investigation and the guilty plea was a mitigating factor on sentence. The presence of one of the owners at the sentencing hearing was also significant.
- Balancing of factors – the court noted that none of these factors could be considered in isolation, nor would one override the others.
The court considered all of these factors and accepted the joint submission, ordering the employer to pay a fine of C$100,000. The court waived the 15% victim crime surcharge because it was satisfied that it would result in undue hardship to the employer.(1)
(1) For more information please see www.occupationalhealthandsafetylaw.com.
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