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01 May 2018
In R v Allen Services & Contracting Ltd (2018 NWTTC 03 (CanLII)), the Territorial Court of the Northwest Territories considered and accepted a joint submission from the crown and defence, sentencing the employer to a C$100,000 fine.
The matter arose following a workplace incident in June 2016, in which a worker was killed. The worker had been operating a vibrating roller packer used to compact a new access road in the Northwest Territories. The packer rolled off the road and the worker either fell or attempted to jump out of the packer as it rolled over. The packer rolled on top of him, killing him.
The employer faced a number of charges and pled guilty to a charge of failing to ensure that the worker was properly supervised.
The court considered the significance of a joint submission, noting that it is normally the result of a negotiation process between lawyers. This process is important to the administration of justice; thus, the courts should defer to a joint submission within the bounds established by the Supreme Court of Canada in an earlier case. The Supreme Court of Canada had stated that when considering a joint submission on sentence, the trial judge should accept the submission unless doing so:
This would occur where the joint submission is such that it would be "markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a breakdown in the proper functioning of the criminal justice system". Therefore, the trial judges should "avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts".
To apply this test, the court reviewed established sentencing principles, noting that the ultimate aim of imposing a significant fine was behaviour modification, both specific deterrence (deterring the employer from similar offences in the future) and general deterrence (deterring other employers from committing similar offences). However, the sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender.
The court applied the following factors and considerations when assessing the amount of the C$100,000 fine proposed by the joint submission:
The court considered all of these factors and accepted the joint submission, ordering the employer to pay a fine of C$100,000. The court waived the 15% victim crime surcharge because it was satisfied that it would result in undue hardship to the employer.(1)
For further information on this topic please contact Cristina Wendel at Dentons by telephone (+1 780 423 7100) or email (firstname.lastname@example.org). The Dentons website can be accessed at www.dentons.com.
(1) For more information please see www.occupationalhealthandsafetylaw.com.
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