Case Comment: $100,000 Fine Plus Surcharge for Criminal Negligence Causing Death in R. v. Stave Lake Quarries Inc.November 3, 2016
On October 27, 2016, a judge of the B.C. Provincial Court sentenced Stave Lake Quarries Inc. (“SLQ“) to a $100,000 fine plus victim surcharge for the death of an employee at its work site in 2007. This is the third case in Canada in which an employer charged with criminal negligence causing death has pled guilty for the collective acts and omissions of its representatives and senior officers under the Bill C-45 “Westray Amendments” to the Criminal Code. The case is also notable because the court was asked to consider the new public interest test devised by the Supreme Court of Canada on October 21, 2016 in R. v. Anthony‑Cook (2016 SCC 43 (CanLII)), and decided not to depart from the joint submissions on sentencing.
In R. v. Stave Lake Quarries Inc., SLQ’s representatives and senior officers collectively hired a young worker informally without determining if she was qualified for the job, failed to have a system in place to ensure she was properly hired and trained, failed to train her or test her knowledge before putting her to work, and failed to adequately supervise her. On her second day of the job, the deceased worker was instructed to operate a rock hauler but was not adequately trained in shutting down the hauler. When operations ceased, she parked the hauler at the top of a grade, applied the air brakes, and shut down the engine. She did not apply the parking brake or use wheel chocks, and the other workers and supervisor at the site did not check to see if the hauler had been properly secured. The pressure in the air brakes eventually bled down and the hauler began to roll. The deceased attempted to regain control of the hauler as it moved but the hauler rolled over and crushed her.
As explained by the Ontario Court of Appeal in R. v. Metron Construction Corporation (2013 ONCA 541 (CanLII), paras 79-80), criminal negligence causing death is “is one of the most serious offences in the Code”, which is “reflected in the maximum punishment for such an offence – life imprisonment for an individual…. ” whereas “[i]f an offender is an organization, the quantum of the fine is unlimited.” The court in that case quoted the three relevant sections of the Criminal Code, 22.1(b), s. 217.1, and s. 219 to which Metron had pled guilty, which provide:
22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if
(b) the senior officer who is responsible for the aspect of the organization’s activities that is relevant to the offence departs – or the senior officers, collectively, depart – markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence.
217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.
219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, “duty” means a duty imposed by law.
As the Supreme Court of Canada explained in R. v. A.D.H. (2013 SCC 28 (CanLII) at para 61), “criminal negligence requires a marked and substantial departure from the conduct of a reasonably prudent person in circumstances in which the accused either recognized and ran an obvious and serious risk or, alternatively, gave no thought to that risk”. Other employers in SLQ’s industry had systems and practices in place to hire, train, and supervise new workers. SLQ’s senior officer also had general responsibilities under the Mines Act which were relevant to determining the appropriate standard of care. By pleading guilty, SLQ accepted that its hiring, training, and supervision of the deceased was a marked and substantial departure from the conduct of a reasonably prudent person in the circumstances.
The court considered SLQ’s guilty plea a significant mitigating factor when considering the joint submissions of Crown and defence counsel recommending an appropriate sentence. The court heard that SLQ was a small employer, and that it had a clean record with no prior incidents before or after the fatality. The position of authority SLQ held in relation to the deceased was an aggravating factor however, as was SLQ’s marked and substantial departure from the conduct the deceased ought to have been able to expect from her employer.
The court also considered the new public interest test devised by the Supreme Court of Canada on October 21, 2016 in R. v. Anthony‑Cook (2016 SCC 43 (CanLII)), in which Moldaver, J. writing the unanimous decision said: “a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest.” Justice Moldaver continued, explaining why joint submissions should not be set aside lightly by a trial judge:
… Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold…
Guilty pleas in exchange for joint submissions on sentence are a “proper and necessary part of the administration of criminal justice” …. When plea resolutions are “properly conducted [they] benefit not only the accused, but also victims, witnesses, counsel, and the administration of justice generally”…
R. v. Anthony‑Cook (2016 SCC 43 (CanLII), paras 34 – 35, citations omitted)
The court noted that SLQ’s omission was no less blameworthy than the active disabling of a safety system in R. v. Transpavé (2008 QCCQ 1598 (CanLII)), for which the small (fr. “familiale”) employer was also fined $100,000 plus a victim surcharge, but found that the sentence was fair and fit in the circumstances. Based on three significant mitigating factors, namely having a clean record, entering a guilty plea, and taking subsequent remedial steps, a similar fine was imposed in this case. Since SLQ took responsibility for the fatality and it was not established that any one individual had themselves committed criminal negligence causing death, the Crown entered a stay of proceedings against the other accused individuals.
Whether they are directly supervising workers or are responsible for safety policies and procedures, supervisors, managers, officers and directors should regularly inform themselves of their legal duties and the evolving standard of care expected of them, and ensure they continuously take all reasonable steps to protect anyone whose safety might be put at risk by the work being carried out by the employer.
Shane R. Hopkins-Utter, B.A. (Hon), M.A., J.D.*
*Practicing as the Shane R. Hopkins-Utter Law Corporation
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This article was originally posted November 3, 2016, and was edited on February 22, 2017.