R v. Busk, 2012 NSPC 17

IN THE PROVINCIAL COURT OF NOVA SCOTIA R v. Busk, 2012 NSPC 17 Date: March 16, 2012 Docket: 2179676 Registry: Halifax Her Majesty the Queen v. David Busk, Sr., c.o.b. as Truss Worthy Framing and Renovations SENTENCING DECISION Judge: The Honourable Judge Anne S. Derrick Heard: July 7, September 8, November 3 and 28, 2011, January 12 and March 9, 2012 Decision: March 16, 2012 Charges: section 74(1) (

a) of the Occupational Health and Safety Act, S.N.S. 1996, c. 7 Counsel: Peter Craig - Crown Attorney David Busk, Sr. for himself

By The Court: A Tragic Workplace Accident [ 1 ] On November 19, 2010 Craig MacNamara fell from a roof that was under construction at Sentry Court in Halifax. He suffered fatal injuries and died later that night in hospital. Mr. MacNamara was just 27 years old, his birthday having been on November 9. [ 2 ] On June 6, 2011, David Busk, Sr. pleaded guilty, as an employer, to having unlawfully failed to ensure that Mr. MacNamara wore a fall arrest system that was adequately secured, contrary to section 7(1) and section 8(1) of the Fall Protection and Scaffolding Regulations , thereby committing an offence contrary to section 74(1) (

a) of the Occupational Health and Safety Act . Facts [ 3 ] The following facts were read into the record as agreed facts: 1. Craig MacNamara (d.o.b. Nov. 9/82) was an employee of Truss Worthy Framing and Renovations. Truss Worthy is a sole proprietorship. The principal/proprietor is David Busk. 2. On November 19, 2009, Truss Worthy Framing & Renovations was a sub-contractor at a residential construction site at Lot 443 Sentry Court, Halifax, Nova Scotia. Truss Worthy was erecting the new home’s framing and installing the roof sheeting. 3.

While employed by Truss Worthy on November 19, 2009, Craig MacNamara fell from the roof under construction at this site. The fall distance from the roof to the ground was 25 ft. and was the cause of Mr. MacNamara’s death (i.e. blunt force injury to his head). 4. Prior to his fall, Mr. MacNamara was working on a

section of the roof near the peak, depicted in Photograph #10 attached. Mr. MacNamara left that position to exit the roof through the access hole in the roof (also depicted therein) used for entry and exit. 5. Mr. MacNamara was wearing a fall arrest harness at the time of his death. Mr. MacNamara had been tied in via his harness to a life line immediately before his death. Mr. MacNamara disconnected his harness from the life line as he was exiting the roof. 6. As Mr. MacNamara exited the roof, a co-worker, David Busk, Jr., called Mr.

MacNamara to a position on the roof (also depicted in Photograph #10 attached) for construction related assistance. Mr. MacNamara did not reaffix his harness to the lifeline. He tripped shortly thereafter and fell to the ground. 7. Mr. Busk, Jr. was also not tied to a life line while on the roof. He was affixing safety planking known as a sticker board, at the time of the accident. 8. Mr. MacNamara had received fall arrest training while employed with a previous employer. His fall arrest training certificate had expired shortly before this incident. 9.

Neither the Defendant nor the other employees of Truss Worthy Framing had fall arrest training and were not utilizing an adequately secured fall arrest system at the time of Mr. MacNamara’s fall. Victim Impact Statement

[ 4 ] Mr. Busk’s sentencing hearing got underway on July 8, 2011. A victim impact statement was read and there was a presentation and submissions by Crown and Defence. Mr. Busk read a statement to the court. [ 5 ] The victim impact statement was prepared by Craig MacNamara’s father, Hugh MacNamara and read by Craig’s sister, Alisha MacNamara. Reading her father’s words, Ms. MacNamara described her brother as full of life, fun and adventure. A “giving” person who “lived life to the fullest”, he left behind a grief-stricken family. Referring to the pain in his heart that “will always remain”, Mr.

MacNamara’s impact statement starkly described the intense feelings of grief that have left their indelible mark on Craig MacNamara’s entire family: Since the initial shock of the accident and ultimately Craig’s death, our family has struggled to find a sense of completeness, and sense of normality again. We all feel the sadness that hangs over our home, we all feel the void left by this tragic accident. We however, cannot mourn forever, but strive forward. Craig would want us to live on… [ 6 ] Despite his family’s terrible loss, Mr.

MacNamara was focused in his statement not only on his son’s tragic death, but on the need to ensure that other workers and their families are spared what he and his family have experienced. He posed a “final question”, asking: “What can this court do to correct the problem to make sure this does not happen again to some other family?” [ 7 ] The legislated sentencing options for occupational health and safety violations actually contemplate a response to Mr. MacNamara’s question.

I will explain these options in the context of this case later in these reasons, although in doing so I will be noting that sentencing is an individualized process and every sentence must be tailored to the circumstances of the case and the offender. Recommendations on Sentence and Sentencing Proceedings [ 8 ] On July 7, 2011, Mr. Craig for the Crown and Scott Sterns representing Mr. Busk, presented me with what was essentially a joint recommendation for Mr. Busk’s sentence.

Having examined the case authorities that dealt with individual as opposed to corporate offenders, they submitted that a fine in the range of $20,000 - $40,000 was the appropriate monetary penalty. The joint sentencing recommendation also contemplated that Mr. Busk should do 200 hours of presentations, with the content and venue of these presentations to be agreed upon between the Crown and counsel for Mr. Busk.

The objective of the presentations was to enhance workplace safety in the context of fall protection. [ 9 ] The sentencing submissions of counsel on July 7, 2011 were augmented by further submissions on September 8, directed at the presentations aspect - venue, format and content - of the sentence being recommended for Mr. Busk. When it was indicated that further time was needed to fine-tune the presentation aspect of the sentencing recommendations, the date of November 3, 2011 was set. [ 10 ] On November 3, Mr. Sterns indicated there had been a breakdown in the relationship with Mr. Busk. Mr.

Sterns was permitted to withdraw as Mr. Busk’s counsel. Mr. Busk then advised that he wished to withdraw his guilty plea as he felt he had been pressured into admitting guilt. The matter was set over to November 28 and then to January 12, 2012. [ 11 ] Mr. Busk did not submit a formal application to withdraw his guilty plea, nor did he put forward any evidence on the matter. On January 12 he indicated he was no longer intending to advance the application.

I found that his guilty plea, entered on June 6, 2011, had been a voluntary acknowledgement of guilt, entered following the recital of agreed facts, and with the benefit of legal representation. I noted that there was no evidentiary basis that would have enabled Mr. Busk’s application to succeed. The date of March 9 was set for sentencing so that Mr. Busk could obtain legal advice and possibly even representation for the sentencing hearing and prepare any submissions he wished to make if he continued to represent himself. The Sentencing Hearing on March 9, 2012

[12] Mr. Busk was unable to retain a lawyer and represented himself at the further appearance on March 9. A re-worked, essentiallyjoint, recommendation was made for Mr. Busk’s sentence. A stumbling block to the recommendation previously made for 200 hours ofpresentations was Mr. Busk’s position that he was unsuited to make presentations of the nature contemplated by the Crown. He did notbelieve he could satisfactorily discharge this aspect of a sentence order if it was imposed.

These concerns and the issues associated withthem had been addressed when the parties appeared before me on January 12 but the cracks in the presentation aspect of the sentencingrecommendation had first appeared on July 7, 2011. Mr. Busk has indicated that he feels intimidated by the prospect of makingpresentations to larger groups and experiences overwhelming anxiety about his ability to do so. [13] On March 9, Mr. Craig indicated that the Crown was open to a variation on the creative sentencing aspect of its recommendationfor Mr. Busk’s sentence.

That variation was the brainchild of the Department of Labour investigator, Mr. Duggan, and follow-up of theidea was conducted by his colleague, Mr. Woodworth. Mr. Duggan and Mr. Woodworth are to be commended for their initiative whichenabled Mr. Craig to put forward a sentencing proposal that offered an alternative to the more conventional approach of workplace-safety presentations. The earlier recommendation of presentations had effectively run aground with the Department of Labour and Mr.Busk being unable to reach agreement on their design. So, instead of Mr. Busk doing 200 hours of presentations, Mr.

Craig indicatedthe Crown was satisfied to recommend he be ordered to provide 200 hours of volunteer work to Habitat for Humanity, either by using hisskills as a builder on Habitat for Humanity building projects, or in the Habitat for Humanity retail store in Brookside. [14] Mr. Busk joined in this recommendation on the creative sentencing aspect. He observed that volunteer work with Habitat forHumanity was far more compatible with his skills than presentations which he felt he would not be able to successfully complete.Although I reminded Mr.

Busk that courts do not tailor sentence orders to suit what is most appealing to offenders, I noted that it isimportant for his sentence to be responsive to the purpose and principles of sentencing and for it to be achievable. And as Mr. Craigacknowledged in his submissions, the creative aspect of Occupational Health and Safety Act sentencing requires offender “buy-in.” [15] Otherwise, Mr. Busk did take issue with what had been recommended, originally on his behalf by Mr. Sterns, as the financialcomponent of the sentence.

It was his submission that a fine/donation to the Minister’s Educational Trust Fund in the range of $20,000 -$40,000 was too high. [16] Finally, Mr. Busk made a statement to the court about his attention to safety issues in the workplace. He said as follows: As a framer I can tell you that I have more safety equipment and spend more money on equipment and training than most independentframing companies in the area.

All the people that work for me will attest to the fact that I treat each and every one of them like familyand always have done everything in my power to prevent them from being hurt on or away from the job site. I have implemented a safetypolicy which requires all my employees to have an up-to-date fall arrest course and I have provided that course for at least 15 employees,past and present, in the last two years, as well as first aid courses for all my managers.

The Legal Framework for OHSA Sentencing [17] The legal framework for sentencing within the occupational health and safety regime has been constructed by the purpose andprinciples of sentencing found in sections 718-718.2 of the Criminal Code (which apply here by operation of the

Summary ProceedingsAct, S.N.S. 1989, c. 450 as amended) and the occupational health and safety cases applying these norms. Norman A. Keith's treatise,"Canadian Health and Safety Law: A Comprehensive Guide to Statutes, Policies and Case Law" (Canada Law Book: 2008) referencesprinciples of sentencing for occupational health and safety violations that reflect those found in sections 718-718.2 of the Criminal Code: There are three primary objectives of sentencing for a violation of the applicable health and safety legislation.

First, there is thedeterrence aspect of the sentencing process, both specific to the convicted party and generally for the community. Secondly, there is theretribution aspect of the sentencing process, indicating the moral wrong and the need to reinforce the value or standard that was violated.Thirdly, there is the rehabilitation-reform aspect of the sentencing process for the convicted party to be assisted in not repeating theoffence. [18] In Regina v. Cotton Felts Ltd., (ON CA), [1982] O.J. No. 178 the Ontario Court of Appeal held that:

The amount of the fine will be determined by a complex of considerations, including the size of the company involved, the scope of theeconomic activity in issue, the extent of the actual and potential harm to the public, and the maximum penalty prescribed by statute.Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence ... Without being harsh,the fine must be substantial enough to warn others that the offence will not be tolerated.

It must not appear to be a mere licence fee forillegal activity. (paragraphs 19 & 22) [19] Deterrence has been accorded a broad meaning in the occupational health and safety context, encompassing an emphasis oncommunity denunciation and stigmatization of

an act with the objective of instructing and educating public attitudes toward workplacesafety. In approving this model of deterrence taken from R. v. Roussy, [1977] O.J. No. 1208 (Ont.

C.A.), Blair, J.A. in Cotton Felts heldthat deterrence with an educative dimension is "particularly applicable to public welfare offences where it is essential for the properfunctioning of our society for citizens at large to expect that basic rules are established and enforced to protect the physical, economicand social welfare of the public." (paragraph 23) [20] Cotton Felts is an authoritative decision and has been cited with approval many times by Nova Scotian courts in occupationalhealth and safety cases. (see, for example, R. v.

Minister of Transportation and Public Works(decision of Warner, J. (N.S.S.C.)unreported; R. v. A.W. Leil Cranes & Equipment

(1986) Ltd., [2003] N.S.J. No. 525 (N.S.P.C.); R. v. Meridian Construction, [2005]N.S.J. No. 379 (N.S.P.C.); Nova Scotia (Department of Environment and Labour) v. Nova Scotia Power Inc.,2008 NSPC 72 ,[2008] N.S.J. No. 531(N.S.P.C.); R. v. Eagles, [2010] N.S.J. No. 223 (N.S.P.C.); R. v. O’Regan Chevrolet Cadillac Limited,[2010]N.S.J.

No. 633 (N.S.P.C.)) [21] The deterrence and public education objectives in sentencing for occupational health and safety violations are achieved throughfines and a range of additional sentencing options, sometimes referred to as "creative sentencing options" that can include: communityservice and requiring the offender to comply with such other reasonable conditions as the court considers appropriate and just, which iswhat is being proposed by the Crown and Mr.

Busk in this case. [22] Norman Keith’s treatise, referenced by me earlier, identifies the primary purpose of occupational health and safety legislation(which of course includes its penalty provisions) is protecting and improving occupational health and safety in the workplace. As henotes, the creative sentencing provisions in occupational health and safety legislation permit “the prosecution process…to be positiveand constructive rather than simply punitive.” Principles of Sentencing and Assessing the Fit and Proper Sentence [23] Sentencing Mr.

Busk requires me to consider and balance the principles of proportionality, parity and restraint. The sentenceimposed on Mr. Busk must be proportionate to his moral blameworthiness for the offence of having failed to ensure that Mr. MacNamarawas wearing a fall arrest system that was adequately secured while he was on the roof at Sentry Court. Other factors that are relevant tothe proportionality issue are the fact that Mr.

Busk is before me as an individual not a large corporation and the fact that Mr.MacNamara also had responsibilities under the Occupational Health and Safety Act that he apparently did not meet. [24] The Occupational Health and Safety Act requires, under section 17(1), that every employee while at work, shall “take everyreasonable precaution in the circumstances to protect the employee’s own health and safety…at or near the workplace.” The facts aboutthe events that led to Mr. MacNamara’s fall are before me as agreed facts. Those facts indicate that just before his fall, Mr.

MacNamarahad been wearing a fall arrest harness and had been connected to a life line on the roof (which is shown in the photograph attached toExhibit 1, the Agreed Statement of Facts.) He had disconnected his harness from the life line because he was leaving the roof through anaccess hole, which is also shown in the photograph. As is so often the case with tragedies like this, a routine event led to catastrophicconsequences. Mr. MacNamara was asked by Mr. Busk’s son, David Busk, Jr., for assistance affixing sticker boards which are a form ofsafety planking. Mr.

MacNamara, undoubtedly true to his nature as described by his family, immediately turned back to help. He did notgive a thought to himself at that moment but focused on the task Mr. Busk, Jr. was trying to complete. He did not reattach himself to thesafety line. When he tripped, there was nothing to prevent his fall. [25] Mr. Busk, Sr. is ultimately responsible for the safety of his workplace. It was his responsibility to see to it that none of his workers

were exposed to the risk of an unarrested fall. The Agreed Facts establish that his own son was not connected to the life line while working on the roof. [ 26 ] It has not been suggested that this is a case of “reckless disregard or deliberate indifference to legislative safety measures.” (R. v. Eagles, [2010] N.S.J. No. 223 (N.S.P.C.) Mr. Busk, Sr. had obviously adverted to safety: Mr. MacNamara and Mr. Busk, Jr. were wearing fall protection harness and there was a life line for them to clip on to.

But the workplace was apparently not governed by strict enough attention to the primacy of safety measures and when Mr. MacNamara tripped, there was nothing to stop him falling 25 feet to the ground and sustaining fatal injuries. [ 27 ] The original Crown and Defence joint submission for a financial penalty in the range of $20,000 - $40,000 was based on the degree of Mr. Busk Sr’s moral blameworthiness for Mr. MacNamara’s death and the requirement for parity with cases that bear some resemblance.

Those would not be cases where fatalities in the workplace have led to high fines being imposed on corporate offenders. The principle of restraint is also relevant, and represents a recognition that the sentencing court is required to take a measured response in determining the sentence that best satisfies the purpose and principles of sentencing. In an occupational health and safety case this means that the fine imposed must be no greater than is required to meet the objectives of sentencing. (Meridian, supra, paragraph 22 ) [ 28 ] The primary objective in sentencing Mr.

Busk is general deterrence; the sending of a message to other employers that safety in the workplace must be rigorously promoted and vigilantly safeguarded. General deterrence must nonetheless be accomplished in a manner that reflects the particular circumstances of the case. [ 29 ] This is a case with both aggravating and mitigating factors. It is an aggravating factor that Mr. Busk has a prior record for an offence contrary to s. 154(3)(

a) of the Occupational Safety General Regulations . This offence occurred in July 2003 when one of Mr. Busk’s employees was injured in a fall caused by the collapse of roof trusses at a job site. The employee broke his wrist and suffered some nerve damage. Mr. Busk’s guilty plea related to a failure to install bracing for the roof trusses in accordance with an engineer’s design. Amplifying the aggravating nature of not having an unblemished record is the fact that as of last summer, when Mr.

Busk was to have been sentenced in this case, he had yet to comply with the sentencing order imposed on May 31, 2006 for this previous offence. The order required Mr. Busk to “successfully complete a course(s)/training program(

s) in bracing and related topics…at the latest, by June 1, 2007.” Mr. Busk did indicate in his statement to the court on July 7, 2011 that he had made an initial contact with the Department of Environment and Labour only to be told that he would be called back. The call-back never came because the investigator was killed in a car accident. Nothing was forthcoming from the Department of Environment and Labour and Mr. Busk admitted he forgot about his obligations. That was irresponsible of him. [ 30 ] It is not my impression however that Mr.

Busk will be cavalier about his responsibilities under the sentence I am imposing. Neither his demeanor nor his statements have reflected an indifferent view of these proceedings and their outcome. [ 31 ] I acknowledge that Mr. Busk expressed, in his original statement in court on July 7, 2011, a desire to improve workplace safety and his interest in speaking directly to employers at worksites to make them more aware of how to “run a safe job site.” On September 8 when I was hearing submissions from counsel about the presentations aspect of the sentence, Mr.

Busk noted a recent experience when he was approached by another contractor on a job and was able to educate him about his workplace safety obligations and the need for fall-arrest education for his workers. His message had an impact: this other contractor’s work crew was subsequently not on the jobsite because they were attending a fall-arrest course. In relating this experience to me, Mr. Busk emphasized again that he wants “everyone to know what they need to know about fall arrest.” [ 32 ] It is a mitigating factor that Mr. Busk is remorseful about his role in Mr. MacNamara’s death.

In his statement to the court he said: …I only knew Craig for a short period of time and yet I will miss him as a friend for the rest of my life. I feel my legacy to him would be to help other employers try to prevent this from happening again…I would like to do everything I can within my power to make something good come out of this sad and tragic accident… [ 33 ] It would not be appropriate however to accord Mr. Busk’s guilty plea much significance in terms of mitigation given his representations, as recently as January 12, that he did not feel he was guilty.

[ 34 ] In fixing an appropriate monetary penalty in this case, I have to take into account Mr. Busk’s personal financial circumstances. It is recognized that a sentence must have a “sting” to use the words of Mr. Sterns making representations on July 7 on Mr. Busk’s behalf.

This is reflected in Cotton Felts upholding the trial judge’s conclusion that the fine he imposed “could be borne by [the offender], albeit with some pain, to bring home the gravity of the offence to [the offender] and to serve as a deterrent to others.” (Cotton Felts, paragraph 14, (Q.L. version) As I noted earlier, Cotton Felts also stands for the principle that the financial penalty must not be too harsh. [ 35 ] Mr. Busk operates a sole proprietorship. It is a small carpentry company. He works with his son. According to his 2009 Notice of Assessment, his annual income in 2009 was $16,336.

I am advised he had a comparable income in 2010. [ 36 ] Mr. Busk went bankrupt in 2008 and was discharged from bankruptcy in June 2009. He has no credit as a consequence of the bankruptcy and works from invoice to invoice. [ 37 ] In July 2010, Mr. Sterns indicated that Mr. Busk has a limited ability to pay a monetary penalty and would require 3 – 4 years to discharge one. I was not surprised to hear this. Mr. Busk’s annual income and the fact that he is a recently discharged bankrupt are ample evidence of his diminished financial capacity.

Taking into account all the factors I have been discussing leads me to conclude that $25,000 is an appropriate penalty for this repeat but financially-strapped offender. $25,000 will represent more than Mr. Busk has earned in each of the past two years. A financial penalty greater than that would be oppressive. I am therefore ordering Mr. Busk to pay a fine of $10,000 with no victim surcharge as imposing a victim surcharge would, in my opinion, constitute an undue hardship. The balance of $15,000 is to be payable to the Minister’s Educational Trust Fund with both amounts due on or before March 15, 2015. If Mr.

Busk finds that he requires further time to discharge the fine, he can apply to the court for an extension. Were I dealing with such a request, Mr. Busk’s good faith in meeting his obligations under this sentence would be an important consideration on the issue of whether his application should be granted. That good faith would include reasonable payments having been made to discharge this obligation. [ 38 ] In fixing Mr. Busk’s financial penalty at the lower end of the range recommended by the Crown I want to make two comments. The first is that this is not in any sense a measure of the value of a human life.

The amount is not a reflection of how much Mr. MacNamara’s life was worth. We know as citizens and parents that his life cannot be quantified. It was precious and priceless. The financial penalty imposed on Mr. Busk is intended to be a deterrent, to him and to other similarly-situated employers, ones who do not have deep pockets, so that other workplace tragedies will be prevented. The second comment I will make is that given what I understand about Mr. Busk’s financial situation, this monetary penalty will have a sting. It will place a considerable burden on Mr.

Busk and consequently will serve the requirements for general and specific deterrence. [ 39 ] I am also ordering Mr. Busk to provide 200 hours of volunteer services to Habitat for Humanity, either on building projects or at the Habitat for Humanity retail store. This is a substantial amount of time for Mr. Busk to donate to this worthy enterprise. I am imposing this aspect of Mr. Busk’s sentence pursuant to creative sentencing options under

section 75 of the Occupational Health and Safety Act , 1996, c. 7 as amended. [ 40 ] I am retaining jurisdiction with respect to the implementation of my sentence order in the event it is necessary for me to adjudicate any dispute between the parties with respect to the performance by Mr. Busk of his obligations in relation to this sentence. [ 41 ] I am satisfied that status reports on the implementation of this sentence should be provided. I direct that the Crown and Mr. Busk attend in court on November 2, 2012 for a status report. Should this turn out to be an unsuitable date for Mr.

Busk, then I will be prepared, with notice, to re-schedule the appearance to another date within reasonable proximity to November 2. At this status date, I will be particularly interested in information about the Habitat for Humanity aspect of the sentence order. Further status reporting dates will be scheduled at the time of this first reporting appearance if I determine it is necessary to do so.