THE EMPLOYERS' EDGE
Court of Appeal Overturns Jail Time for Directors on Guilty Plea for OHSA Violations
Karen Fields of CCPartners was recently successful in an appeal on behalf of R. v. New Mex Canada Inc., B. Purba and R. Saini, in which fines from the lower court were significantly reduced for the corporate accused and the incarceration of the two Directors was overturned.
Charges arose out of a workplace fatality where the Company and the two Directors pled guilty to two charges each. The Company and the Directors had no prior convictions, and the Company was a small business that lost employees and business after the accident. At sentencing, the Justice of the Peace fined the corporation $125,000.00 each for the two convictions plus the 25% victim fine surcharge. The two Directors were sentenced to 25 days incarceration to be served on an intermittent basis, 12 months of probation and the requirement to complete a health and safety program.
The probation order and the requirement to take health and safety training were not appealed and were completed prior to the hearing of the Appeal.
The Appeal Judge looked at the standard of review for a sentence appeal and confirmed that it is only reviewable if the sentence was “not fit” or “clearly unreasonable”. He further stated that to overturn a sentence if must fall “outside the acceptable range” and must be a “substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes”. He took into consideration the prime focus of deterrence in a penalty and looked at the factors usually reviewed on sentence: the size of the company; scope of the economic activity; potential or actual harm to workers; the maximum penalty set in the legislation and deterrence. He reviewed both the mitigating and aggravating factors and determined that the sentences imposed were “demonstrably unfit”.
On sentencing the Justice of the Peace stated that a jail term had been imposed because a fine would cause “more financial hardship”. On appeal, the court stated that the reasons as stated did not justify this type of sentence. The appeal court stated that fines are what “puts teeth in fines for breaches”. The court also stated that incarceration is more appropriate for defendants with prior convictions for whom fines have not had a deterrent effect. The fine for the Corporation was reduced and the period of incarceration for the two Directors was substituted with a fine.
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