R. v. Tower Arctic, 2020 NUCJ 39

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Tower Arctic, 2020 NUCJ 39 Date: 2020 1214 Docket: 11-19-123 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Tower Arctic ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): L. Reynolds Counsel (Accused): J. A. de Jong Location Heard: Iqaluit, Nunavut Date Heard: October 6, 2020 Matters: Sentencing for offences under ss. 4(1) (b), 12 (b), and 22(1) (

a) of the Safety Act , RSNWT (Nu) 1988, c S-1 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Tower Arctic has pleaded guilty to a charge pursuant to s. 4(1) of the Safety Act , RSNWT (Nu) 1988, c S-1 , which states: 4

(1) Every employer shall (

a) maintain his or her establishment in such a manner that the health and safety of persons in the establishment are not likely to be endangered; (

b) take all reasonable precautions and adopt and carry out all reasonable techniques and procedures to ensure the health and safety of every person in his or her establishment; … II. FACTS [ 2 ] On September 19, 2018, Steven Innuara started his first day on a job with Tower Arctic in Pond Inlet, Nunavut. The company was making signs for work sites by taking old metal barrels and cutting a square hole in the top of the barrel into which a sign was placed. [ 3 ] Mr. Innuara's first task at his new job was to accompany his supervisor to the dump to retrieve some barrels.

Two barrels were scavenged from an area of the dump marked “hazardous materials”. The two returned to the company's workshop known as the “sea can shop”. [ 4 ] Mr. Innuara's supervisor showed him how to cut a hole in the top of a barrel using a handheld grinder. Before starting work on the second barrel the supervisor was called away. [ 5 ] Mr. Innuara understood that he was to proceed with cutting the second barrel. While he was cutting the barrel, sparks from the grinder ignited combustible gases in the barrel, causing an explosion. [ 6 ] The force from the explosion blew the top off the barrel, hitting Mr.

Innuara in the face and breaking his face shield before continuing upward and damaging the tent roof of the sea can shop. Mr. Innuara was knocked to the ground. He was semi-conscious. [ 7 ] Other workers in the shop responded immediately. First aid was administered to Mr. Innuara and a call was made for emergency assistance. The RCMP responded and took Mr. Innuara to the Health Centre. Mr. Innuara had several broken teeth, a laceration to his face and chin, and singed hair. He was med-evaced to Iqaluit and on to Ottawa. He was released from the hospital in Ottawa on September 24, 2018.

He returned to work on October 2, 2018. [ 8 ] Tower Arctic violated s. 4(1) of the Safety Act by: failing to perform a hazard assessment before undertaking the work; failing to determine what materials the barrels had contained; failing to decontaminate the barrels; failing to provide Mr. Innuara with a safety orientation; and failing to properly supervise Mr. Innuara. III. POSITIONS OF THE PARTIES [ 9 ] The parties jointly submit that an appropriate sentence is a fine in the amount of $75,000, along with the victim of crime

surcharge. IV. THE LEGISLATION [10] The maximum penalty for an offence by a corporate offender under the Safety Act is a fine of up to $500,000, or imprisonment, orboth (s. 22(2)). [11] Fines payable under the Act are deposited into the Workers’ Protection Fund (s. 22(6)). The Workers’ Protection Fund isestablished pursuant to s. 67 of the Workers' Compensation Act, SNu 2007, c 15 and is used to pay out compensation for injuries,diseases, and deaths in the workplace and to pay the costs associated with administering the workers’ compensation scheme. [12] Section 14(1) of the Victims of Crime Act, RSNWT (Nu) 1988, c 9, establishes a Victims Assistance Fund which is used for: (

a) promotion and delivery of services to victims; (

b) research into services to victims and needs and concerns of victims; (

c) distribution of information respecting services to victims and needs and concerns of victims (

d) remuneration of members of the Committee for their services and for reimbursement of reasonable expenses incurred on behalf ofthe Committee; and (

e) any other purpose the Minister considers necessary for carrying out the purposes of this Act. [13]

Section 2 of the Victims of Crime Regulations, NWT Reg (Nu) 013-92, promulgated pursuant to the Victims of Crime Act,establishes a surcharge of 15% of any fine be paid by an offender into the fund. V. ANALYSIS [14] Many activities and enterprises which are undertaken daily by both individuals and organizations are regulated to ensure safety ofthe public.

Just as we expect and rely upon the government, through the imposition of a licensing regime, to ensure that drivers on theroad are knowledgeable and capable, so too do we rely upon a multitude of regulatory regimes to ensure such things as environmentalprotection and food safety. As stated in R v Cotton Felts Ltd., (ON CA), [1982] OJ No 178, 2 CCC (3d) 287: In our complex interdependent modern society such regulatory statutes are accepted as essential in the public interest.

They ensurestandards of conduct, performance and reliability by various economic groups and make life tolerable for all. (at para 19) [15] Safety in the workplace is such a regulated activity. All workers, most of whom have no option but to participate in the wageeconomy and place themselves in the workplace, are entitled to safe working environment. It is the employer who must be responsiblefor providing such an environment. [16] The sentencing of corporate offenders presents its own unique challenges.

As stated in General Scrap Iron & Metals Ltd., 2003ABQB 22: …the sanctioning of corporations themselves has the challenge that, often, the entity being sanctioned is not the entity being spoken toby the sentence disposition. The operating mind[s] of corporations are human beings, but those individuals may not be the same on thedate of the offence as on the date of sanction. The configuration of the ownership and management of the corporations may change fairlyeasily.

Similarly, the stigma ordinarily attached to individuals arising from a conviction may be diluted or forgotten fairly easily throughcorporate re-organization or name change. (at para 28)

[ 17 ] The jurisprudence clearly establishes deterrence as the paramount principle in sentencing for public welfare offences. Traditionally, deterrence has been achieved through the imposition of fines which operate as more than a “licensing fee”; the fine must be such that the individual offender as well as others participating in the regulated activity, come to view compliance as more economically beneficial than non-compliance. [ 18 ] A broad view of the concept of deterrence should be taken. There is a power imbalance between the worker and the employer.

It is important that sentences promote a workplace environment where the employer leads by example, not a workplace that reluctantly tolerates workers who insist upon strict compliance with safety protocols. Sentencing corporate offenders should do more than punish them into compliance.

A sentencing regime that communicates societal denunciation of the offending behaviour while recognizing and encouraging corporate cultures that promote compliance will have greater long-term benefits to society. [ 19 ] Although it is not necessary for me to consider in the matter before me, it may be that under certain circumstances, and assuming it is available, a period of corporate probation might be appropriate ( Ninety North Construction & Development Ltd. 2005 NWTTC 3 ; Ontario (Ministry of Labour) v Vixman Construction Ltd. , 2020 ONCJ 64 at paras 38-39 ). [ 20 ] Although framed in various ways in the cases, the sentencing of corporate offenders should consider the following ( R v United Keno Hill Mines Ltd ., [1980] YJ No 10 , 10 CELR 43 ; R v General Scrap Iron & Metals Ltd. , 2003 ABQB 22 ): A.

The circumstances and nature of the offence [ 21 ] This should include a consideration of the harm done and the degree of culpability of the corporate offender, which might be reflected in efforts to comply with the regulatory regime, the duration of the misconduct, the motivation for the misconduct, and any profits flowing from the misconduct. B. The terms and aims of the regulatory regime [ 22 ] This should include a consideration of the objectives of the regulatory regime, the level of regulatory involvement, the range of available sanctions, and any impact the sentence might have on others. C.

The circumstances and attitude of the corporate offender [ 23 ] This will involve a consideration of the size and wealth of the corporate offender, steps that the offender took to rectify the misconduct, any history of non-compliance, and the nature of the corporation’s relationship with the regulating agency. VI. APPLICATION OF THE SENTENCING PRINCIPLES A. The circumstances and nature of the offence [ 24 ] It is significant that Mr. Innuara suffered injuries because of the incident. It is a matter of luck that there were no permanent injuries or even death. Presumably, Mr.

Innuara has not incurred expenses or lost any income because of the incident. The offending behaviour appears to have been the result of carelessness and thoughtlessness rather than a deliberate disregard of clear safety protocols. Although it appears the offending behaviour occurred on more than one occasion, the conduct appears to be more a matter of opportunity and convenience rather than the surreptitious breaching of safety protocols to decrease costs and increase profits. B. The terms and aims of the regulatory regime [ 25 ] The goal of ensuring workplace safety is of the utmost importance.

The area is heavily regulated, particularly in undertakings that

involve construction and the use of equipment. C. The circumstances and attitude of the corporate offender [26] Information as to the circumstances of the corporate offender is important because it provides the court with the knowledge neededto assess the impact of the potential sentence on the offender. If the goal of sentencing corporate offenders is to impose a fine that ismore than a licence to offend but less than a financial burden that crushes the offender, the court must know about the size, wealth,assets, and revenues of the corporation.

Clearly, a $50,000 fine on a small corporation with a modest profit margin will be much moresignificant than the same fine on a multinational corporation with annual profits in the hundreds of millions. [27] This concept is also important when considering the sentencing principle of parity. Parity tells us that similarly situated offenderswho commit similar offences should be treated similarly. Parity requires not uniformity of outcome, but consistency in the approach andanalysis that is applied in determining the outcome.

In this regard counsel have referred me to an unreported decision from Ontario calledR v Noront Steel Limited, Feb. 13, 2020, Sudbury Provincial Offences Court. The facts are very similar to the matter before me. The fineimposed was the same as that which counsel have recommended in this matter. The maximum fine that was available for a corporateoffender under the applicable legislation was $1,500,000. However, there is no information regarding the corporate offender.

It is notclear the extent to which, if any, counsel relied upon this case in reaching their position on sentence. [28] Similarly, I have not been provided with any information regarding the nature of Tower Arctic Ltd. It is not possible for me toassess the impact of the proposed fine on the corporate offender.

I am reliant upon counsel and must assume that they have made thatassessment and, for some reason, do not wish to provide the court with the information. [29] The Supreme Court of Canada addressed this in R v Anthony-Cook, 2016 SCC 43, stating: Crown and defence counsel are well placed to arrive at a joint submission that reflects the interests of both the public and the accused(Martin Committee Report, at p. 287). As a rule, they will be highly knowledgeable about the circumstances of the offender and theoffence and the strengths and weaknesses of their respective positions.

The Crown is charged with representing the community’s interestin seeing that justice is done (R. v. Power, (SCC), [1994] 1 S.C.R. 601, at p. 616). Defence counsel is required to act inthe accused’s best interests, which includes ensuring that the accused’s plea is voluntary and informed (see, for example, Law Society ofBritish Columbia, Code of Professional Conduct for British Columbia (online), rule 5.1-8). And both counsel are bound professionallyand ethically not to mislead the court (ibid., rule 2.1-2(c)).

In short, they are entirely capable of arriving at resolutions that are fair andconsistent with the public interest (Martin Committee Report, at p. 287). (at para 44) [30] In the matter before me the prosecuting agency is well placed to ensure the public interest is served by the joint submission. Theprosecuting agency works regularly with employers and is tasked with enforcing safety protocols, delivering safety programs, andcollecting, assessing, and distributing workers compensation monies. [31] I have been provided information that reflects on the attitude of the corporate offender.

The corporation does not have otherconvictions for safety violations. Following the incident, the corporation undertook immediate and significant steps to address safetyissues and attitudes in the workplace. The practice of repurposing steel barrels was abolished. The supervisors who were responsible forthe workplace at the time of the incident either resigned or were replaced by individuals with more safety experience. A new position ofSafety Agent was established. Reviews were undertaken not only of the circumstances that led to the incident but also a broader reviewof the corporation’s safety program.

All supervisors undertook safety training. The corporation worked with the WSCC in providing thetraining. Essentially, the corporation undertook a corporation wide reinvigoration of its safety culture. VII. CONCLUSION [32] The joint submission on sentence is acceded to. There will be a fine of $75,000 payable by March 31, 2021. There will be a victimsof crime surcharge of $11,250 also payable by March 31, 2021.

Dated at the City of Iqaluit this 14th day of December, 2020 ___________________ Justice S. Cooper Nunavut Court of Justice