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As minimum fines on multiple charges lead to increasingly unfair results, defence counsel, and occasionally judges, are looking for ways to reconcile the law with what they consider to be just results. Earlier this year, the Ontario Court of Appeal slammed the door shut on two such ideas: credit for compliance with regulatory orders, and concurrent fines. Both are now probably ruled out for all Ontario environmental, labour and other regulatory offences, and will continue to push fine amounts up.

The case was an Occupational Health & Safety prosecution, Ontario (Labour) v. Flex-N-Gate Canada Company, 2014 ONCA 53 (CanLII).

“[1] An employer breaches a provision of the Occupational Health and Safety Act (OHSA), R.S.O. 1990, c. O.1, resulting in a workplace accident. A government inspector investigates the accident and orders the employer to comply with the provision. The employer does so. In sentencing the employer for breach of the Act, should the court treat the employer’s “corrective action” as a mitigating factor? If the employer breaches more than one provision of the Act, does the court have jurisdiction to impose concurrent fines?
[2] These two important questions came to this court with leave, following the sentencing of the respondent Flex-N-Gate for two breaches of the Act. These two breaches led to an accident in which a worker badly injured her foot. Flex-N-Gate was fined $50,000 – $25,000 for each offence. However, the appeal court judge ordered that the fines be paid concurrently – effectively reducing Flex-N-Gate’s obligation by half – to “reward” the company for its compliance. The Crown was granted leave to appeal both on the question whether required compliance might be a mitigating factor on sentence, and on the question whether the court has jurisdiction to impose concurrent fines.”

The court ruled against the employer on both points, and imposed a $50,000 fine.

Credit for compliance with regulatory orders?

The court ruled:

[23] Deterrence is undermined by treating statutorily required compliance as a mitigating factor on sentence. Rewarding an employer for action that it should have taken before an accident happened creates an incentive to put off compliance.

[24] In a comparable regulated field, the environmental field, several sentencing courts have rejected the argument that a company’s remedial action after a mishap has occurred should be mitigating. For example, in R. v. Echo Bay Mines Ltd. (1980), 12 C.E.L.R. 38, a judge of the Territories Court held, at para. 13:

Similarly, while the response to the spill and the subsequent plans and efforts to upgrade and change the fuel handling system show a serious concern to prevent any future occurrences such as this, they are after the fact, as it were.  This legislation is not intended to encourage compliance after an environmental mishap but rather to demand compliance before those mishaps occur so as to prevent them.

[25] And, in R. v. Van Waters & Rogers Ltd. (1998), 220 A.R. 315 (Prov. Ct.), Fradsham J. of the Alberta Provincial Court wrote, at para. 45:

The fact that there were things that could have been done to prevent the spill, and that they were capable of being discerned and implemented, may well aggravate, and not mitigate, the offence.  In my view, the expenditures made by Van Waters for remedial action are monies it should have spent before the spill.  I do not consider those expenditures particularly mitigating.  The best that can be said is that Van Waters has not evidenced recalcitrance in acknowledging its previous failures.

[26] The reasoning in these two cases is persuasive.  Indeed, in this province, the legislature has expressly prohibited courts from treating compliance with an order under the Environmental Protection Act, R.S.O. 1990, c. E.19as a mitigating factor on penalty.  Section 188.1(4) of that Act now states:

Subject to subsection (5), in determining a penalty under section 187, the court shall not consider compliance with an order issued under this Act in response to the offence to be a mitigating factor.

[27] This provision puts the issue beyond debate for environmental offences.  However, for the reasons I have discussed, even without a legislative prohibition, the same principle should apply to the sentencing of employers for OHSA offences…”

Concurrent fines?

“[35] The Justice of the Peace ordered Flex-N-Gate to pay a total fine of $50,000, $25,000 for each of the two offences. The appeal court judge did not disturb the amount of each fine but made them concurrent, effectively reducing Flex-N-Gate’s obligation by half. The second question on this appeal is whether the court has jurisdiction to impose concurrent fines for a contravention of the OHSA. I conclude that it does not have jurisdiction. I rest my conclusion on the case law that governs the imposition of fines in criminal proceedings.

[36] The OHSA and the Provincial Offences Act are silent on the question. So too is the Criminal Code. However, our court has held that in proceedings under the Code, the court has no jurisdiction to impose concurrent fines. It may impose concurrent custodial sentences for two or more counts, but if the sentence is a fine, it must impose separate fines for each count, but ensuring that the overall fine is appropriate.[5] Martin J.A. set out those principles in R. v. Ward reflex, (1980), 56 C.C.C. (2d) 15 (Ont. C.A.), at para. 9:

We observe, firstly that there is no authority to impose a concurrent fine as the learned trial judge did, in respect of separate offences: see R. v. Dedarin et al., [1966] 1 C.C.C. 271. Where it is appropriate to impose a fine, either in lieu of or in addition to, a custodial sentence, a separate fine must be imposed on each count in respect of which it is intended to impose a fine taking care, of course, that the total amount of the fines does not exceed what is appropriate.

[37] I would apply these principles in Ward to proceedings under the OHSA. I see no rational basis to do otherwise.”

This leaves defendants, and judges, very few options when over-enthusiastic prosecutors lay large numbers of charges, each with a substantial minimum penalty. Eventually, I suspect that judges may partly redress the balance, by abandoning their traditional reticence to interfere with prosecutorial discretion on the number of charges laid.

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