Canadian Occupational Safety

AUGUST/SEPTEMBER 2018 11 Is jail appropriate for individual OHS offenders? Employer in Alberta sentenced to 4 months in jail, even though prosecutor didn't ask for it R ecent trends in occupational health and safety regulatory prosecutions, and prosecutions under the Criminal Code, have raised the important policy question: Is jail an appropriate penalty for individual offenders? Every OHS statute in Canada provides that an individual may be imprisoned for a contravention. However, these regulatory offences presumptively result in financial penalties, rather than a jail term. But, jail is now being requested and sometimes given as an appropriate penalty for OHS regulatory offences. This is an important development, especially in light of a recent decision in Alberta, R. v. Haya Holmes Ltd., where a Provincial Court of Alberta judge imposed a period of incarceration for an individual offender in a fatality case. Sukwinder Singh Nagra was the owner and operator of Sahib Con- tracting charged with both criminal negligence and Occupational Health and Safety Act regulatory charges for a workplace fatality. Nagra's com- pany had contracted with a home builder to connect water and sewer lines, which were requiring the exca- vation of a trench. He hired a casual labourer who had very little formal education or formal industry training. The labourer followed Nagra's direc- tions and entered an unsupported and unbraced trench. The trench collapsed and buried him alive, leading to the workplace fatality. In her resolution agreement, Judge Michelle Doyle accepted a guilty plea under the Alberta OHS act, and accepted a withdrawal of the criminal negligence charge under the Criminal Code. When it came to sentencing, neither the prosecutor nor the defence counsel requested a period of incar- ceration for Nagra. However, the judge departed from the well-accepted prac- tice of adopting the joint submissions of defence and Crown counsel and imposed a sentence of four months in jail and a fine of $30,000 plus addi- tional surcharges for Nagra. In the sentencing decision, the judge did not refer to prior judgements of convictions for OHS criminal neg- ligence under the Criminal Code but referred to the purpose of the OHS legislation in Alberta. Nagra's lack of effort to comply with the legislation contributed to the seriousness of the breach and the workplace fatality. At press time, it is not clear whether an appeal will be filed on behalf of Nagra or his company, which received a fine in the range of $500,000. FOR AND AGAINST The arguments in favour of incar- cerating an individual under safety legislation, especially in a fatality case, is that deterrence, both specific and general, must be used to reinforce the importance of OHS legislation and standards contained therein. Deterrents are the primary goal of sentencing in regulatory offences and related penalties. In other words, if individuals, as well as corporations, do not take workplace safety seri- ously, then workers' lives are put at risk. Therefore, there is an agreed set of facts that results in a fatality, later in a conviction of an individual and then jail. Additional aggravating fac- tors in terms of a past record, extreme facts and the dangerous nature of the work or industry may also be consid- ered in determining whether jail is an appropriate punishment for an OHS regulatory offence. On the other hand, regulatory offences are classified as "public wel- fare" offences or "quasi-criminal" offences, not criminal offences. The primary purpose of public welfare offences is to achieve a public inter- est and policy goal for the benefit of citizens, rather than to punish for anti-social, criminal behaviour. The justification the Supreme Court of Canada made in the 1990s was that in requiring a defendant to prove the balance of probabilities — the due diligence defence — there is a substantial legal difference between a criminal offence and a regulatory offence. Therefore, the primary goal is to promote and achieve compli- ance with community standards. The breach of the community standards set down in legislation should not generally result in a term of impris- onment for an individual accused. Further, if the purpose of enforcing OHS laws is to motivate compliance, a creative sentencing scheme would be more constructive than a period in jail, which is synonymous with a con- viction of a criminal offence. There are sound legal and policy reasons not to use jail as a punishment for an indi- vidual who is contravened in OHS law anywhere in Canada. The Nagra case is interesting for three reasons. First, it's a rare example of an individual being jailed, even though they have shown remorse by pleading guilty and a trial judge rejecting the joint submission that a financial penalty is appropriate. Second, the case is important because it highlights the fact that even though regulatory offences under OHS law generally do not result in jail terms for individuals, that threat is still possible. Additionally, even though OHS statutes across Canada are regulatory and not criminal in nature, some courts in some circum- stances may choose to use a term of imprisonment to reinforce the importance of following occupational health and safety standards. Third, this case demonstrates that directors, owners and supervisors of workers in dangerous work are under a high legal duty to comply with health and safety standards. The pub- lic's demand for its citizens to be safe at work is praise-worthy. Whether a company is small or large, working in a dangerous environment or not, health and safety must be a priority. Norm Keith, an OHS lawyer and consultant, is a partner at Fasken in Toronto and the author of Canadian Health and Safety Law. He can be reached at (416) 868-7824 or nkeith@ fasken.com, or visit www.ehslaw.ca for more information. LEGAL LANDSCAPE NORM KEITH www.safetydriven.ca TRUCKING AND MOVING & STORAGE COMPANIES HAVE A POWERFUL PARTNER IN SAFETY SafetyDriven provides free, non-judgmental and confidential safety evaluations, plus free personalized safety program training. For more information visit www.safetydriven.ca

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