The Cure for theCause

Alberta Occupational Health and Safety2017

Alberta Common Ground Alliance Conference

Safe Fair Health Workplaces

OHS DeliveryInvestigations and

Mining Unit

Adele TaitInvestigation Specialist

Occupational Health and Safety

Next of Kin and Injured worker ContactAlberta Specialized Prosecution Liaison

Regulatory designate for Corporate Offenders

Special acknowledgement to The Threads of Life for their dedication to helping workplace accident victims

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Who are our victims?

• Next of kin • Injured workers• Families• Communities• Industries• Society

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Occupational Health and Safety Legislation is known as “Public Welfare Law”

• Since the industrial revolution the importance of these laws has increased. Along with the increased capacity to help ourselves and others, comes the capacity to also cause massive harm to public welfare, accidentally as well as deliberately.

• -John Swaigen Regulatory Offences in Canada (1944)

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OHS Level 1 Investigations

• All work related fatalities and life altering serious injuries

• Incidents that have the potential of causing massive harm to worker(s) and involve an uncontrolled fire, explosion or flood, collapse of a building or structure, derrick or hoist

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OHS Level 1 Fatality Statistics

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Year OHSLevel1Fatalities

2016 20

2015 15

2014 31

2013 19

2012 23

These figures do not include occupational disease or motor vehicle fatalities

Who are the potential offenders in an occupational related case?

• Employers• Contractors• Prime Contractors• Suppliers• Workers

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Cases resulting in conviction

CourtOutcomeSummaryTable

Activity 20152016

Jan.1– Oct31

CaseswithChargesLaid 31 21

CaseswithChargesStayed/Withdrawn,Acquittals

4 7

CaseswithConvictions 11 18

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The statute of limitation under the Occupational Health and Safety Act is 2 years from the date of the commission of the alleged offense.

OHS OffensePenalties

• 41(1) A person who contravenes this Act, the regulations or an adopted code or fails to comply with an order made under this Act, the regulation or an adopted code or with an acceptance issued under this Act is guilty of an offence and liable

(a) for a first offence,• (i) to a fine of not more than $500 000 and in the case of a continuing

offence, to a further fine of not more than $30 000 for each day during which the offence continues after the first day or part of a day, or

• (ii) to imprisonment for a term not exceeding 6 months,• or to both fines and imprisonment, and• (b) for a 2nd or subsequent offence,• (i) to a fine of not more than $1 000 000 and in the case of a continuing

offence, to a further fine of not more than $60 000 for each day or part of a day during which the offence continues after the first day, or

• (ii) to imprisonment for a term not exceeding 12 months,• or to both fines and imprisonment.• (2) Notwithstanding subsection (1), a person who fails to comply with an order made under

section 10 or as varied under section 16 is guilty of an offence and liable to a fine of not more than $1 000 000 or imprisonment for a term not exceeding 12 months or to both fine and imprisonment.

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Sentencing Amounts

• Stats• Why fines aren’t enough• Alternative sentencing

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Year TotalPenalties(fines,alternatepenalties

&victimsurcharge)

RangeofCourtPenalties(fines&alternate

penalties)

2016toOct

$1,069,037 $5000-$300,000

2015 $2,646,150 $5000- $295,0002014 $1,677,050 $4,000- $325,0002013 $2,615,750 $35,750- $1,500,0002012 $3,332,500 $70,000- $1,250,0002011 $3,457,750 $10,000- $400,0002010 $1,737,250 $10,000- $400,0002009 $457,225 $4,025- $100,7502008 $5,083,000 $45,750 - $425,0002007 $1,720,000 $70,750- $350,0002006 $1,534,500 $40,000- $500,0002005 $554,050 $2,000- $100,0002004 $597,500 $10,000- $120,000

These statistics are based on GOA fiscal year April 1 – March 31

Who are the most common offenders in an occupational conviction?

• Corporations

Is a Corporation a person?Corporate personhood: is the legal notion that a corporation, separately from its associated human beings, has some, but not all, of the legal rights and responsibilities enjoyed by natural persons.

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Points to consider when sentencing a corporation• To instill the message to the business community that

the legislation is to be obeyed the fines must amount to more than a slap on the wrist R.v. A.B.C. Ready-Mix Ltd.et al (April 21, 1972)

• Human life cannot be measured in cash J.L. McMullan, Beyond the Limits of the Law – Corporate Crime and Law and Order, (1992)

• Reformation and rehabilitation must remain an element for the Court’s consideration even where the defendant is a corporation. R. v. Panarctic Oils Ltd. (Jan. 14, 1983) (NWTTC)

• Corporations should be viewed as something more than a person with money so innovative methods of sanctioning corporations are desirable. Law Reform Commission of Canada, Working Paper, Criminal Responsibility for Group Action, 1976

• The above citations were qouted in R.v. General Scrap Iron & Metals (2003) (ABQB 22) Honourable Mr. Justice Jack Watson

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Alternative sentencing options

• In Alberta it is often referred to as “Creative Sentencing”

• Alberta OHS and Environment have provisions under the Act to allow for alternative sentencing

• Nova Scotia also has sanctions to allow for sentencing options that provide alternatives to fines alone

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The Occupational Health and Safety Act provides Additional powers of court to make directions

• 41.1(1) Where a person is convicted of an offence against this Act, in addition or as an alternative to taking any other action provided for in this Act, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order directing the person

• (a) to establish or to revise• (i) the policy referred to in section 32(a) and arrangements referred to in section

32(b), or• (ii) a training or educational program regarding the health or safety of workers at

the work site,• (b) to take specific action to improve health and safety at work sites, or• (c) to take any other action specified in the regulations.• (2) The order may contain any substance or conditions that the court considers

appropriate.

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OHS Act Sec. 41.1 Orders - Creative Sentencing

• Is a “penalty diversion” which refers to the use of funds which ordinarily be payable as a fine but which are directed by the Sentencing Court to fund the development of a project or training program to improve safety at worksites S.McRory annotated guidelines

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Example: The Best Practice Guide for working on Ice Covers• Dedicated to the victim Karl Malmquist, who broke through

the ice and drowned while operating a snowcat at a worksite on the Peace River on January 7, 2005. It is also dedicated to the nearly 500 people in Canada who have lost their lives over the past 10 years while crossing or working on floating ice.

• The incident resulted in a conviction where the Courts ordered the accused to pay $300,000 towards the development of the proposed Best Practice Guide.

• Over the period of 1991 to 2000, there were 447 deaths associated with activities on ice. Of these, 246 involved snowmobiles, 150 involved non-motorized activity and 51motorized vehicles. Most of the deaths associated with activities on ice were related to recreational activities. (Canadian Red Cross Society 2006)

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Benefits to workplace and society at large

• Nexus between the cause of the incident and the cure in the form of education tools, templates and guidelines

• The Guide is freely accessible to the public • Recognition of the victim's life• Collaborate effort between the offender, other

corporate stakeholders, regulators and ice engineering experts

• (Handout)

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Example: Safety in Schools Life Lessons – Learning the hard way

• A 2015 conviction where the courts ordered the accused to pay $150,000 towards a high school initiative aimed at young workers

• Included the creation of videos featuring 3 cases that involved serious injuries or death of workers under the age of 25

• Safety in Schools offer this and other courses in 216 schools in Alberta with over 80,000 course enrollments

• (Video)

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Creative Sentencing Challenges

• Can be similar to straight fines when corporate offender is not involved in the cure.

• Lack of legislative tools to administer the funds to recipients.

• Guiding principles for creative sentencing have been established based on the courts acceptance of past proposals but have not been incorporated into law.

• Defining the nexus between the cause and the cure. • OHS 41.1 Orders must be carefully prepared by Crown

to fill legislative administration gaps. This is particularly important to ensure there is a mechanism to have the Order brought before the Courts for further direction.

• Oversight is need to ensure the funds are allocated as proposed and accepted by the Courts.

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OHS Legislative Enforcement Tools for Creative Sentencing Sec. 41.1 Orders• Effect of non-payment• 41.2(1) If a person is ordered under section 41.1 to pay

money to any other person and fails to pay• (a) the entire amount before the expiry of the time

period within which the order requires the entire amount to be paid, or

• (b) an instalment toward the entire amount before the expiry of the time period within which the order requires the instalment to be paid, then on the expiry of that time period the entire amount, or that portion which then remains unpaid, is deemed to be a fine imposed on the person and is enforceable by the Crown in right of Alberta in the same manner as any other fine may be enforced under the Provincial Offences Procedure Act.

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Looking for broader, enforceable options for alternative sentencing

• In 2014 Karen Hewitt Q.C. a Crown Prosecutor with AB. Justice examined Honourable Mr. Jack Watson’s Judgement on sentence appeal R v. General Scrap Iron & Metals Ltd.

• Judge Watson plants the seed of corporate probation and goes further to reference R. V. Panarctic Oils Ltd. “where the concept of rehabilitation can be most fruitful and fertile is with a corporate defendant. A fine may deter but it can be passed on and leave the corporation unaffected. If true rehabilitation can be effected then society has the ultimate protection and both society and the corporation will benefit. A corporate defendant is in a sense a candidate for rehabilitative measures. It needs to re-establish itself and to wipe away the blemish.”

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2014 R. v. CNIL Crown Prosecutor Ms. Hewitt Q.C. advanced a sentence before the courts using the provision under the Criminal Code of Canada Sec. 733.1

• Optional conditions — organization• CC 733.1(3.1) The court may prescribe, as additional conditions of a probation order made

in respect of an organization, that the offender do one or more of the following:– (a) make restitution to a person for any loss or damage that they suffered as a result of the

offence;– (b) establish policies, standards and procedures to reduce the likelihood of the organization

committing a subsequent offence;– (c) communicate those policies, standards and procedures to its representatives;– (d) report to the court on the implementation of those policies, standards and procedures;– (e) identify the senior officer who is responsible for compliance with those policies, standards

and procedures;– (f) provide, in the manner specified by the court, the following information to the public,

namely,• (i) the offence of which the organization was convicted,• (ii) the sentence imposed by the court, and• (iii) any measures that the organization is taking — including any policies, standards

and procedures established under paragraph (b) — to reduce the likelihood of it committing a subsequent offence; and

– (g) comply with any other reasonable conditions that the court considers desirable to prevent the organization from committing subsequent offences or to remedy the harm caused by the offence.

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Designing the conditions of Corporate Probation

• Defining the nexus “Cure for the Cause”• Designating a Corporate Representative and a

Regulatory Agent for oversight approved by the Courts

• Translate the cure into:-Specified safety training courses -Development of safe work procedures-Implementation of the safe work procedures-Third party audit of health and safety system-Reporting progress back to the courts-Community service-Participate and advocate to Industry associations to develop safety tools and awareness-Public acknowledgment (handout) 23

Response to the conditions of corporate probation

Victims: • The single most important factor to victims of workplace

accidents is prevention of similar incidents. Public acknowledgement of the offence is also very important. They want the message to get out and be heard.

Offenders:• Are engaged in the process of creating a safer workplace.

Have a sense of rehabilitating the shame and guilt felt by the corporation by educating and creating safety tools with industry members. Publicly share the remorse felt by the corporation, explain the impact and identify preventative measures.

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Alternative Sentences Statistics

CourtOutcomeSummaryTable

Activity 20152016

Jan.1– Oct31

CreativeSentencingTotalAmounts(41.1)

$679,999 $522,750.00

CaseswithEmployersonCorporateProbation

5 6

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Alternative Sentencing Going Forward

• “Based on comments from the bench, the interest that defendants have who participated in creative sentencing and the wealth of opportunities for servicing the public interest thorough creative sentencing, I am sure it will continue to be a major, and perhaps a proportionately larger part of sentencing.” S.McRory former AB Environmental Crown Prosecutor

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The Next Steps

• Resources- to conduct the research, have the

oversight, engage victims and initiate enforcement tools to ensure compliance with Alternative Sentencing Orders

• Legislation Review - to incorporate the criminal code sanctions into the OHS Act.

- create administration processes for diverted funds

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Questions ?