As we detailed in our blog posting on June 15, 2012, Metron Construction Corporation and its President both entered guilty pleas to charges stemming from a December 24, 2009, accident that claimed the lives of four workers and seriously injured another. Metron pleaded guilty to one count of criminal negligence causing death while its President pleaded guilty to four offences under the Occupational Health and Safety Act (OHSA). A joint submission recommending a fine of $90,000 against the President was made to the court but Metron and the Crown made seperate submissions about the penalty to be imposed for the criminal negligence conviction.
Sentencing submissions by Metron and the Crown concluded on June 28, 2012. Metron is arguing that the court should impose a fine of $100,000. There is a vast gulf between that position and the position taken by the Crown which submitted that a $1,000,000 fine ought to be imposed on Metron. The court did not immediately impose sentence on either Metron or its President. The court reserved its decisions until July 13, 2012, meaning no penalties have been imposed as yet.
With respect to the President’s OHSA convictions, the court is not bound by the joint submission that it has been asked to accept. However, it is rare for a sentencing court to depart from a joint submission made as part of a negotiated resolution. Indeed, the Ontario Court of Appeal recently reaffirmed that a sentencing court should deviate from a joint submission in narrow circumstances: where the joint submission is contrary to the public interest and would bring the administration of justice into disrepute. Currently, a $70,000 fine is the highest monetary penalty imposed on an individual convicted under the OHSA.
Imposing a penalty on Metron will likely prove the more challgening decision for the court. The Criminal Code does not set either a minimum or maximum penalty for a corporation convicted of criminal negligence causing death. However, the Code does mandate that the court adhere to certain principles and consider certain factors. When imposing sentence on a corporation, the court must consider a series of factors that are specific to a corporate defendant. This includes, amonst other things, considering the impact of the fine on the economic viability of the corporation, any advantage to the corporation by the commission of the offence, and if there has been any concealment or conversion of assets to show that the corporation cannot pay a fine or restitution. Additionally, the court is to be guided by the overarching principles of proportionality (accounting for the seriousness of the offence and blameworthiness of the defendant) and parity (that similar cases and defendants receive similar sentences). In sum, the court is expected to balance all of these factors in deciding on the sentence to be imposed.
Deciding on sentence may prove challenging for the court because there are exceedingly few cases in which a corporation has been sentenced for criminal negligence – particularly in matters of workplace safety. In fact, since 2004, when the Criminal Code was amended to include a specific duty relating to workplace health and safety and to broaden the means by which criminal negligence could be proven against a corporation, there has only been one corporation sentenced for a workplace fatality. That decision was in 2008 when Transpavé Inc. was fined $100,000 after pleading guilty to criminal negligence causing death. In argument, both Metron and the Crown referred to penalties imposed on corporations for violations of the OHSA that have resulted in fatal injuries to workers. It will be interesting to see how much impact sentences imposed in regulatory cases have on the imposition of a penalty for a criminal offence.
It will also be interesting to see if a fine is the totality of the sentence imposed on Metron. In addition to a fine, the Criminal Code empowers the court to place a corporation on probation and impose conditions. Amongst other powers, the court has the power to require a corporation to:
- make restitution to a person for any loss or damage that they suffered as a result of the offence; and/or
- provide information to the public, in the manner directed by the court, setting out the offence committed, the sentence imposed and any measures the corporation is doing to reduce the chance of a subsequent offence; and/or
- comply with any other reasonable conditions to prevent the commission of subsequent offences or to remedy the harm caused by the offence.
The possiblity of a probation order was not addressed during sentencing submissions, which may make it less likely that one would be imposed. However, it remains a sentencing option available to the court.
As we indicated in our previous post, this is a historic case. Consequently, whatever penalties are imposed on July 13, they are likely to be influential in future criminal negligence and OHSA proceedings.