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May 9, 2019

Employer With Three Prior Convictions Given Jail Sentence

By Cynthia R. C. Sefton

At a May 7, 2019 sentencing hearing in R. v. Bell, a sole proprietor of a small roofing company, (B), was sentenced to seven days in jail after a guilty plea to a July 22, 2017 offence where there were no injuries.

On that date, a Ministry of Labour inspector was at a roofing project at a home. The inspector observed that B’s worker was working on the roof at a height in excess of three metres. The worker was not wearing any fall protection equipment.

The individual, B, had been convicted on three prior occasions: once in 2015 and twice in 2013. On each of these convictions, multiple workers were not protected by any fall protection. There were no injuries for any of these dates. Portions of prior fines remained unpaid. In 2015, B was sentenced to one day in jail.

There are several lessons to take away from this case and recent trends in health and safety issues:

1. One of the goals of sentencing is specific to the repeat offender. B had obviously not learned from his prior bad acts and was continuing to put workers at risk when such risks were easily avoidable by compliance with fall protection requirements.

2. General deterrence is also one goal of sentencing. According to a Ministry of Labour release, “Fall protection contraventions are considered to be one of the ‘killer contraventions’ within the Province of Ontario and are treated extremely seriously by the Ministry of Labour.” Falls continue to be one of the top ten health and safety infractions in Ontario and in other jurisdictions. The sentence here falls in the line with what can be seen as an increasing criminal law approach to health and safety offences. This is especially so with an obvious repeat offender.

3. If someone had been injured or died, there could well have been a criminal investigation and charges under federal Criminal Code provisions, in addition to the provincial charges. However, it is important to remember that the prevention of injuries and deaths is an important aspect of provincial offences. There does not need to be an injury or death in order to lay provincial health and safety charges, unlike with charges under the Criminal Code.

4. As a practical matter, if you or your organization are prosecuted for Occupational Health and Safety offences and you are considering a guilty plea, look to both the past (prior convictions) and the future. If the facts fit a plea to a one-off charge that is very unlikely to be repeated in the future because of changes in the workplace, and if the prosecutor agrees, that charge is likely the best option in the circumstances, with or without an injury or death. However, remember as well that if the offence should occur again, the risk of a significant penalty, or potentially even jail, goes up.

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