R. v. Fraser River Pile, 2011 BCPC 111

Citation: R. v. Fraser River Pile & Dredge (GP) Inc., et al Date: 20110315 2011 BCPC 0111 File No: 181844-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. FRASER RIVER PILE & DREDGE (GP) INC., LP2M CONSTRUCTION LTD., FORMERLY KNOWN AS FRASER RIVER PILE & DREDGE LTD., LP2M HOLDINGS LTD. and GRAYMAR EQUIPMENT

(2008) INC. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.D. MILLER Counsel for the Crown: J. D. Cliffe, Q.C., S. Postman Counsel for the Defendant: D. Munroe, Q.C., J. Legge Place of Hearing: Surrey , B.C. Date of Hearing: March 1, 2011 Date of Judgment: March 15, 2011 [ 1 ] THE COURT : This is a tragic case. Mr. Aaron Sigmund was killed in an industrial accident July 9th, 2010 while working as a mate upon the dredge "Sceptre Columbia" in the Fraser River. He was employed by the corporate defendant, Fraser River Pile & Dredge (GP) Inc. The facts are extensively outlined in the agreed statement of facts marked Exhibit 1. [ 2 ] In

summary, however, he was engaged in a routine painting job when he placed himself in an area where he was at risk of being pinned and suffocated by a piece of machinery. This is in fact what happened. The results were fatal. [ 3 ] As a result of that death and subsequent investigation the corporate defendant, Fraser River Pile & Dredge (GP) Inc., was charged with an offence under Section 148(2) of the Canada Labour Code , namely: Did fail to install guards, guardrails, barricades and fences in accordance with prescribed standards, to wit:

Section 11.13 of the Marine Occupational Safety and Health Regulations , in an area on the starboard side of the said dredge at or near the flap valve operating area,

in violation of Section 125(1)(

b) of the Canadian Labour Code, the direct result of which was the death of Aaron Sigmund, an employeeof the said employer. [4] The defendant has entered a plea of guilty to that charge. As the Crown proceeded summarily, the maximum penalty that can beimposed is a fine of $1 million. There are no other penalties available, only a money fine.

Counsel have both told me by way of a jointsubmission that the appropriate penalty is a fine in the amount of $140,000. [5] I begin by saying that in a case such as this, where someone has lost their life, a monetary penalty, no matter the amount, and nomatter how legally appropriate, will never seem satisfactory, nor adequate. [6] Counsel correctly directed me to the leading case in this area of R. v. Cotton Felts Ltd. (1982), (ON CA), 2C.C.C. (3d) 287, a decision of the Ontario Court of Appeal.

That case made the firm point that when dealing with safety regulations ofthis sort "deterrence was the paramount consideration," i.e. "the need to enforce regulatory standards by deterrence," "the deterrence inthis context acts not merely in the sense of achieving compliance by threat of punishment, but in a sense of a moral or educative effect." [7] I believe that it is important when assessing the efficacy of this approach to acknowledge that this approach has had ademonstrable positive effect over time. Indeed, this court can reflect back on a time when such tragedies were far more common thanthey are today.

Workplace safety standards were minimal and enforcement was non-existent. There are those who resist governmentaction in any sphere of human behaviour and say that you cannot legislate morality. I believe that is incorrect, but it is undeniable thatthrough proper legislation and enforcement you can change immoral behaviour.

However, you can seldom eliminate that behaviourtotally and enforcement agencies, including the courts, must be ever vigilant in curbing that behaviour. [8] While it might seem to some harsh to characterize what the defendant did, or rather, did not do, here as bad behaviour anddeserving of the application of the previously mentioned principles, I disagree. In this case the corporate defendant was not vigilant inassessing their workplace for safety violations. They are justifiably proud of aspects of their corporate behaviour as regards workersafety, but it was not enough and a good man died. [9] Mr.

Sigmund left behind a wife and child. His wife wrote and read an eloquent victim impact statement that revealed how, eventhough Mr. Sigmund was not living with his family at the time of his death, that death devastated her and their little boy. That little boy,Elijah, now eight years old, was able to give voice to some of what he is feeling through his mother.

The corporate defendant's lack ofproper vigilance will have a detrimental effect on Elijah and his mother longer and greater than the criminal behaviour of many or evenmost offenders convicted of serious Criminal Code offences, such as robbery, fraud, or the like. [10] On the other hand, the corporate defendant has mitigated its behaviour to some degree. They took immediate action to identifyand rectify the deficiencies that led to the death of Mr. Sigmund. They increased their commitment to worker safety through education.

They cooperated fully in the post-event investigation into what happened and why it happened. They entered a guilty plea and indicatedthat they intended to do so very early in the process. [11] The question I have to address is: does the suggested fine of $140,000 meet the standard set by the Ontario Court of Appeal inCotton Felts, given this defendant, this offence and these consequences. As I said earlier, no monetary penalty ever seems just whensomeone is killed. It always seems to me to be bordering upon disrespect to impose such a penalty. [12] This is a joint submission, and that matters.

It does not bind me in that my paramount obligation is to impose a fit sentence. However, when two such eminent counsel such as appeared here before me tell me that they have agreed upon a stated sentence I mustpay such a submission considerable heed and respect. I would not depart from such a submission lightly. I have no intention to do sohere. [13] In all of the circumstances I have concluded that a fine in the stated amount of $140,000 is a fit sentence, and one calculated toprovide the required general deterrence.

I will accede to the defendant's request to order that this fine be paid in six quarterly paymentsof $23,333.33 starting April 1st, 2011. (REASONS FOR SENTENCE CONCLUDED)