Her Majesty the Queen - v. -, 2012 SKPC 119

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 119 Date: August 1, 2012 Information: 24200198 Location: Nipawin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lorry Riemer Appearing: Mr. M. Miller For the Crown Mr. I. Carson For the Defendant SENTENCING DECISION B. MORGAN, J INTRODUCTION: [1] In an earlier decision (2012 SKPC 6 , 2012 SKPC 006), I found Mr. Riemer guilty of two counts under TheOccupational Health and Safety Act, 1993, as follows: Count 1 - on or about the 18th of April A.D. 2008 at or near Nipawin, Saskatchewan did

fail to ensure that where an operation is to be undertaken involving the disturbance of soil within 600 millimetres of an existing pipeline,cable or conduit, that the pipeline, cable or conduit is exposed by hand digging or other approved method before mechanical excavatingis allowed to begin within that area contrary to section 259(2) of The Occupational Health and Safety Regulations, 1996 and did therebycontravene

section 57(

b) of The Occupational Health and Safety Act, 1993. Count 2 - on or about the 18th of April A.D. 2008 at or near Nipawin, Saskatchewan did fail to conduct his undertaking in such a way as to ensure, insofar as is reasonably practicable, that he and workers, employed on or aboutthe same place of employment, who may be affected by the undertaking, are not thereby exposed to risks to their health and safety as isrequired by

section 5(

a) of The Occupational Health and Safety Act, 1993 and did thereby contravene

section 57(

a) of The OccupationalHealth and Safety Act, 1993. [2] I will address the following three issues in this sentencing decision:

(1) Does the “Kienapple” principle apply, such that one of the counts should be stayed?

(2) What is the proper penalty

section to apply?

(3) What is the appropriate sentence?

(1) Does the “Kienapple” principle apply, such that one of the counts should be stayed? [3] R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729 is oft-cited as prohibiting multiple convictions for the sameact. As such, it is argued by the defence that this principle must be applied to these facts, the argument being that the wrong that Mr.Riemer committed was in snagging a gas line with his backhoe.

This was an argument that was also advanced during the trial, that is,that the defence was of the view that the Crown was really only proceeding on one charge (see paragraph 80 of the prior decision). [4] The principles set out in Kienapple, and distilled through further decisions, are succinctly laid out in the recent decision of R.v. J.C., [2008] S.J. No. 845, 2008 SKPC 166, 332 Sask. R. 45, a decision of Judge Gray of this Court, at paragraphs 13 through 16. Iadopt that reasoning in its entirety, and will apply the test as set out in the decision of R. v. Galloway, 2004 S.J.

No. 528 (C.A.), as set outin paragraph 16 of Judge Gray’s decision. In particular, I note her comment at paragraph 14 of R. v. J.C., supra: The essence of what has come to be known as the Kienapple principle precludes multiple convictions for the same act; it does not meanthat more than one conviction cannot arise from the same set of circumstances. [5] The facts on which the convictions were based are fully set out in the earlier judgment. However, for the purposes of thissentencing decision, I will briefly summarise them. [6] Mr.

Riemer was a contractor who was demolishing some buildings in Nipawin, Saskatchewan, in April of 2008. During theprocess, he snagged a live gas line with his equipment, pulling that line free from a main gas line, and allowing gas to escape from thatmain line. The gas migrated under the then-frozen ground surface until it percolated into an adjacent building, at which point someelectrical source, likely a relay switch in a compressor at that shop, ignited the gas, causing a catastrophic explosion. That explosion ledto the deaths of Mr. Jack Boxall and Brent Boxall. In addition, Mr.

Riemer himself, and four other individuals, suffered injuries ofvarying degrees. The explosion itself completely levelled the butcher shop where the compressor was, and a resulting fire destroyed twoadjacent buildings. Buildings within a two block area of the blast, according to the fire investigation report, “suffered glass damage towindows and shrapnel damage to sections facing the site of the explosion”.

The consequences of that act were obviously devastating. [7] The defence position is that the Kienapple principle states: Where the same elements make up the offence in both counts the proper procedure is to enter a judicial stay on one of the counts.

[ 8 ] The defence argument is that “it is clear that the elements making up both counts in this case are identical being that Mr. Riemer failed to expose the buried riser by hand or by means other than using the backhoe”. [ 9 ] The Crown argument is that the offences are distinctly different. Mr. Miller argues that count 1 deals with excavating an area without first exposing the live gas line, and deals with the physical act of failing to do so.

He argues that count 2 is a broader test, and that it doesn’t cover simply the time frame in count 1, but deals with an overall failure throughout the project to protect workers. [ 10 ] In applying the test set out in Galloway , referred to in R. v. J.C. , and looking firstly at the facts in the context of the offences, I have concluded there is more than one wrongful act, in both the physical and mental element, involved in these charges. Put simply, the gist of the offence in count 1 is found in the act of failing to expose the existing pipeline. Count 2 includes, at the least, a complete failure by Mr.

Riemer to conduct his “undertaking”, in such a way as to protect himself and other workers from a risk. [ 11 ] In looking at the offences in the context of the facts, I have concluded that there is an additional and distinguishing element in one offence that is not contained in the other. Count 1 contemplates the lack of a physical act of hand digging to expose a riser, and count 2 deals with doing the complete undertaking, including the digging of the gas line, in an inappropriate fashion. [ 12 ] In my view, these are two separate and distinct offences, and Kienapple does not apply.

(2) What is the proper penalty

section to apply? [ 13 ]

Section 58 of The Occupational Health and Safety Act, 1993 (the Act ) reads as follows: 58(1) Subject to subsection (2), every person who is guilty of an offence mentioned in clause 57(d), (

e) or (

g) that does not cause and is not likely to cause the death of or serious injury to a worker is liable on

summary conviction to a fine not exceeding $2,000.

(2) Every person who is guilty of an offence mentioned in clause 57(

g) because of a failure by the person to comply with a decision or order of the director pursuant to

section 49 or with a decision or order of an adjudicator or a special adjudicator is liable on

summary conviction, in addition to any other fine or penalty imposed pursuant to this Act : (

a) to a fine not exceeding $5,000; and (

b) to a further fine not exceeding $500 for each day or portion of a day during which the offence continues.

(3) Every person who is guilty of an offence mentioned in clause 57(a), (b), (c), (

f) or (

h) that does not cause and is not likely to cause the death of or serious injury to a worker is liable on

summary conviction to the appropriate fine set out in subsection (4).

(4) A person who is convicted of an offence mentioned in subsection (3) is liable: (

a) for a first offence: (

i) that is a single, isolated offence, to a fine not exceeding $10,000; (ii) that is a continuing offence: (

A) to a fine not exceeding $10,000; and (

B) to a further fine not exceeding $1,000 for each day or portion of a day during which the offence continues; (

b) for a second or subsequent offence: (

i) that is a single, isolated offence, to a fine not exceeding $20,000; (ii) that is a continuing offence: (

A) to a fine not exceeding $20,000; and

(

B) to a further fine not exceeding $2,000 for each day or portion of a day during which the offence continues.

(5) Every person who is guilty of an offence mentioned in

section 57 that does not cause but is likely to cause serious injury or death to a worker is liable on

summary conviction to the appropriate fine set out in subsection (6).

(6) A person who is convicted of an offence mentioned in subsection (5) is liable: (

a) for a first offence: (

i) that is a single, isolated offence, to a fine not exceeding $50,000; (ii) that is a continuing offence: (

A) to a fine not exceeding $50,000; and (

B) to a further fine not exceeding $5,000 for each day or portion of a day during which the offence continues; (

b) for a second or subsequent offence: (

i) that is a single, isolated offence, to a fine not exceeding $100,000; (ii) that is a continuing offence: (

A) to a fine not exceeding $100,000; and (

B) to a further fine not exceeding $10,000 for each day or portion of a day during which the offence continues.

(7) Every person who is guilty of an offence mentioned in

section 57 that causes the death of or serious injury to a worker is liable on

summary conviction to a fine not exceeding $300,000.

(8) Where an individual is convicted of an offence mentioned in subsection (7), the convicting judge or justice, in addition to imposing a fine, may order that the convicted individual be imprisoned for a term not exceeding two years. [ 14 ] The defence position is that sections 58(3) and (4) are the applicable penalty sections, based on the argument that there has been a factual finding made in the earlier decision that there is no causal link between the actions of Mr. Riemer and the deaths or any bodily harm. [ 15 ] The Crown position is that section 58(7) is the proper

section to apply, as there were two deaths that occurred as a direct result of the offences. [ 16 ] In support of this argument, defence relies on paragraph 135 of the earlier decision, which I repeat as follows: Further, as noted earlier, there may be overlapping duties and responsibilities. Thus, even if one were to conclude that some other person or persons should have or could have done more, that would have no impact on Mr. Riemer’s continuing obligations. Mr.

Riemer is not charged with creating an explosion, although the snagging of the line certainly put in motion the events that ultimately led to that result. The charge he faces in count 2 is not based on the result of his actions; it is based on his failure to do the work in such a way as to avoid exposing himself and other workers to risks. [ 17 ] The defence goes on to argue that “based on the Court’s findings, the Court has made no casual [ sic ] link between the acts of Mr.

Riemer and the deaths or any bodily harm”. [ 18 ] With respect, I cannot agree that that is what that particular paragraph states, nor in fact what the earlier decision held. [ 19 ] Firstly, paragraph 135, in context, was dealing with a continuing defence argument being advanced throughout the trial that the primary responsibility for the explosion came about due to gross negligence on the part of the Sask Energy employee who was sent out to investigate the problem once the gas line was snagged.

[ 20 ] As indicated throughout the earlier decision, and as I believe was clearly set out in paragraph 135 of the earlier decision, the trial was never about whether or not Sask Energy was responsible. The information dealt with Mr. Riemer, and it was consistently expressed throughout the decision that the Court was not viewing other people’s alleged improper acts as relevant to the issue of whether or not the two counts that Mr. Riemer faced were proven. [ 21 ] Throughout the decision, it has been made abundantly clear that: (

a) Mr. Riemer snagged a gas line; (

b) the result of that caused a connection to be ripped out of a main gas line; (

c) as a result of that, gas percolated under the frozen surface of the ground into an adjoining butcher shop; (

d) that gas eventually reached a critical point of ignition, and did in fact ignite; and (

e) two people were killed, five people were injured, and there was massive loss of property. [ 22 ] In my view, there is a clear causal link between each of counts 1 and 2, and the corresponding loss of life, injury, and property damage. [ 23 ] In determining whether or not the Crown has established guilt at a trial, a Court looks at the evidence, and relates it to the actions, or lack thereof, of the individual charged; has he or she committed this offence, or offences? That is what occurred during the trial.

At the sentencing stage, within proper parameters, the Court looks at, among other things, the consequences of the offence, or offences, at arriving at the proper sentence. Although there are some exceptions to the general rule that the consequences are not usually essential to the charge (for example, a charge of assault causing bodily harm requires that bodily harm be established), at the sentencing stage, and clearly in this Act , the consequences are directly relevant to the proper sentence. The two counts for which Mr.

Riemer has been convicted caused the death of two people and the serious injuries of five others. The proper penalty

section is 58(7).

(3) What is the appropriate sentence? [ 24 ] In R. v. Westfair Foods Ltd. , 2005 SKPC 26 , [2005] 10 W.W.R. 752, 263 Sask. R. 162, Judge Whelan of this Court undertook a lengthy review of the sentencing principles at play, and at paragraph 38, set out an approach which, in her words, “best fits with my understanding of sentencing of regulatory offences, and pertaining more specifically to occupational health and safety regulations”, thereafter setting out a number of factors to be considered. Her analysis and approach has been adopted in numerous cases, and I will apply it in this case. In doing so, that means: (

i) The primary objective of regulatory offences .... is the protection in the workplace of the employee and the general public. (ii) The sentencing principle which best achieves this objective is deterrence, general deterrence being of paramount consideration. (iii) The factors which I will apply will be as follows: - the size of the business, including the number of employees, the number of physical locations, its organizational sophistication, and the extent of its activity in the industry or community. [ 25 ] This is a small operation. The only direct “employee” of Mr.

Riemer, in the context that word is usually used, is Mr. Riemer himself. Obviously, he brings in other individuals on a particular job, such as in this case (Mr. Jack Boxall, Mr. Brent Boxall and Mr. Stan Lungul). However, his operation does not have any type of organizational sophistication or structure whatsoever. As was described in one case, this is somewhat of a “mom and pop” operation.

[ 26 ] In Exhibit P-12, a statement Mr. Riemer himself prepared, he notes that he lives on a farm, and has carried on construction work and fire suppression work over many years. He described his construction work generally as “small road building, brush cutting, fire fighting and building demolitions”. In the year immediately prior to this matter, he had done eight demolitions. He stated that he owns a Link-Belt track backhoe, a Caterpillar tractor D-8, and a Freightliner lowbed, as well as a skidder he uses solely for fire suppression.

He stated that he has operated equipment for thirty-seven years. [ 27 ] His counsel described the business as somewhat of a sideline, in that Mr. Riemer’s main occupation is that of a farmer. I think that is an accurate portrayal. - the scope of the economic activity in issue - the value or magnitude of the venture and any connection between profit and the illegal action. [ 28 ] The value of this particular contract was $27,500.00. His lawyer said that Mr. Riemer paid out the sum of $17,395.75 to others, leaving him with just over $10,104.25 of profit before expenses.

On this particular contract, his lawyer states that Mr. Riemer cleared just over $2,000.00. [ 29 ] There is no meaningful connection, in my view, between what little profit was garnered, and the illegal action. Mr. Riemer’s arrangement with Jack Boxall, who had encouraged him to bid the job, was that Mr. Boxall would be paid hourly for the trucking, Mr. Riemer would be paid hourly for the backhoe, and that Mr. Boxall and Mr. Riemer would split whatever money was left (Exhibit P-12). This contract was bid as a complete job by Mr. Riemer, so the faster Mr.

Riemer got the job done, the better off he would be financially. There is no indication that what he did was driven by a need or desire to increase his profit, beyond the normal desire to get a job done quickly. - the gravity of the offence including the actual and potential harm to the employee and/or the public. [ 30 ] The offences clearly had the potential to cause devastating harm; that is borne out by the fact of the actual harm, in that two individuals were killed, five were injured, and there were massive amounts of property destruction.

The gravity of the offences is serious. - the degree of risk and extent of the danger and its foreseeability. [ 31 ] In my view, the risk inherent in the activity of digging up the gas line, and the danger in the activity of failing to take proper precautionary steps, are both extremely high. In this case, there was an incredible danger, and, as a particular aggravating factor, this risk was totally foreseeable by Mr. Riemer. He had in the past worked around live gas lines, and he simply had to be aware of the incredible risks he was undertaking.

What occurred was entirely foreseeable. - the maximum penalty prescribed by statute. [ 32 ] As indicated above, section 58(7) allows a maximum penalty of $300,000.00 in cases in which the offence “causes the death of or serious injury to a worker”. - the range of fines and the jurisdiction for similar offenders in similar circumstances. [ 33 ] Crown counsel has provided a

summary of cases of this nature, along with the cases themselves which was quite helpful. I will review those cases shortly. However, a few introductory notes are in order.

[ 34 ] First, the amount of the fine is in no way meant to be in any fashion a measure of the loss that has been suffered in this situation. As indicated earlier, the sentencing principle that is most applicable is that of general deterrence. No monetary amount can possibly compensate for the loss of life that has been suffered, nor the loss of enjoyment of life that is continuing to be felt by those parties who were injured in this incident. [ 35 ] Secondly, there is a distinction between large corporations and small operations. The principle is stated well in the case of R. v.

Pederson , 2000 SKQB 255 , 194 Sask. R. 102, at paragraph 14 : ....Attempts by sentencing judges to standardize the fines for specific offences under the Act should be discouraged. What amounts to a fit and proper sentence in a particular case will depend as much upon the circumstances of the offender as the range of possible fines. The risk of a prohibitive fine must not become the cost of doing business in the construction or industrial fields. Any deterrent effect of a fine should be felt by those in like circumstances, operating a similar enterprise.

Large national and international corporations may only experience deterrence from a fine in excess of $100,000.00. Small ventures do not require a fine of that amount to be convinced of the need to adhere to safe work standards. Standardization of fines will lead to inequality of treatment in industries comprised of both large and small operators. [ 36 ] Against that background, I will review the cases provided by the Crown, which have clearly been provided having regard to the principles set out in Westfair and Pederson . R. v.

Potash Corporation of Saskatchewan and Harry Bedrey , August 11, 1998, Judge Turpel-Lafond With respect to Mr. Bedrey, he had a small maintenance operation that was contracted to do work at a potash mine in Saskatchewan. He had instructed his employees to, in effecting repairs on a covered brine tank, stay off the tank cover. However, those workers traversed the wooden cover, the cover broke, and two individuals were killed, and one was severely injured. Noting the limited financial assets of Mr. Bedrey, the Court imposed a fine of $10,000.00. R. v.

Pederson , supra In this appeal to the Court of Queen’s Bench, Mr. Justice Krueger reduced a $90,000.00 fine to $35,000.00, plus the victim fine surcharge, in a case in which an improperly shored trench collapsed upon and killed a young man. R. v. Sye Rosin , 2005 SKPC 36 , 2005 SKQB 537 This was a case in which an individual had become crushed under the bucket and arms of a skid steer loader. The original fine was $30,000.00, reduced to $15,000.00 on appeal, plus a 15 percent victim fine surcharge.

The employer was older, in poor health, had limited financial means, and earned a relatively little amount from his snow-clearing business. R. v. Hubbard Construction Inc. , Sentencing Transcript January 21, 2008, Justice A. Luhning An employee fell to his death as a result of the collapse of a piece of plywood that covered a shaft opening in a house. The employer was doing framing work on a subcontract basis at a home near Saskatoon and the representations made at the sentencing hearing indicated that this was a small operation that actually had a slight loss on its recent tax returns.

The joint submission of a $15,000.00 fine plus a surcharge was accepted. R. v. Jeffery A. Wilcocks , September 15, 2010 In this case, a worker was fatally electrocuted while working on a quonset at a farmer’s yard; the farmer had rigged up a temporary heater, which was not grounded properly, resulting in the death of the worker. The Court accepted the joint submission of a $6,000.00 fine and surcharge. [ 37 ] I note that in each of these cases there was a fatality or fatalities, each time directly following or being the immediate and direct result of an accident.

I think the fact that the deaths in this case occurred approximately 40 minutes after the gas line was ripped out does not change the situation significantly; in the present case involving Mr. Riemer, the deaths that occurred are as much a result of the offences he has committed as they are in the cases cited by the Crown. [ 38 ] When looking at the range of fines above, it appears it runs from a low of $6,000.00 to a high of $35,000.00, with an average in the range of $15,000.00 to $20,000.00.

- the ability to pay or potential impact of the fine on the employer’s business. [ 39 ] The evidence respecting Mr. Riemer’s income is sparse. He is described as a small farmer, with limited means. Certainly, his profit margin on this particular venture was not high, but I essentially have no credible evidence or representations respecting the overall extent of this business of Mr. Riemer’s, other than the suggestion that it may in fact be a rather small company.

I am prepared to work on the assumption that a significant fine would essentially wipe out the business, as it has been described as a “mom and pop operation”. - past diligence in complying with or surpassing industry standards. [ 40 ] There is simply no evidence on this, other than to note that Mr. Riemer has not had any formal training respecting the impact of the Act on his operation. He has, while working in other construction projects over the years, attended or conducted safety meetings at those work projects. On this site, he and Mr. Boxall met each morning to plan out the day’s work (Exhibit P-12).

These general safety meetings, and/or meetings do not assist me in determining Mr. Riemer’s attitude to adhering to industry standards or protective legislation. I would certainly not consider him well versed with his responsibilities as an employer or worker. - previous offences. [ 41 ] Mr. Riemer has had no previous involvement with the authorities. - the degree of fault (culpability) or negligence of the employer. [ 42 ] I find this to be an aggravating factor.

The simple answer to this matter would have been to have exposed the riser by hand; to try to do so with the backhoe was extremely reckless and negligent. In addition, it is not at all clear that Mr. Riemer took any of his responsibilities during the entire time the undertaking was going on in any sort of diligent way. People did comment on how efficient he was as a worker, in demolishing the buildings, and it looks like the entire operation was going ahead at a fairly good clip. However, the cost of that efficiency can be the compromise of safety. Although Mr.

Lungul, one of the drivers, stated during the trial that he was fairly certain that a spotter was used to dump the fill about 90 percent of the time, Mr. Riemer does indicate that at the time the fill was dumped on the riser, he was at the front of the site and did not know who placed it there (Exhibit P-12). In my view, there has been a distinct lack of care in conducting the entire operation, which became apparent in the events of April 18. - the contributory negligence of another party. [ 43 ] The defence argument throughout has been that the fault lies mostly, if not fully, with Sask Energy.

However, I would not consider anything they did, or did not do, to fit under the doctrine of contributory negligence. Nor would I consider anything they did, or did not do, to constitute some kind of intervening act. The cause of the accident that led to the explosion, the deaths, the injuries, and the property damage, were specifically a result of the offences that Mr. Riemer has been found guilty of. - the number of breaches - were they isolated or continued over time. [ 44 ] With respect to the snagging of the gas line, that was obviously a one time occurrence.

With respect to the general site supervision throughout the project, which had started four days prior to the explosion, although they are not specific breaches of regulations or offences, the overall allegation in count 2 does cover that entire period, and there was a general lack of supervision on this job.

- employer’s response - reparations to victim or family - measures taken and expense incurred so as to prevent a recurrence or continued illegal activity. [ 45 ] There is no evidence on this point. - a prompt admission of responsibility and timely guilty plea. [ 46 ] As is his right, Mr. Riemer elected to conduct a defence to these charges. As such, there certainly has not been a prompt admission of responsibility and timely guilty plea. In my view, an early guilty plea can be equated with acceptance of responsibility, which has traditionally been seen by the Courts as a mitigating factor.

However, the fact that someone chooses to conduct a defence cannot be seen as an aggravating factor. [ 47 ] The Crown’s position is that a global fine in the range of $35,000.00, plus surcharge, as set out in the Pederson case, would be appropriate. [ 48 ] The defence position is that a fine of $1,000.00 or $2,000.00 would be appropriate. [ 49 ] In my view, considering the factors laid out above, a global fine of $20,000.00 is appropriate in these circumstances.

It will be assessed as being a $10,000.00 fine on count 1, plus a surcharge of 40 percent, being $4,000.00, for a total fine and surcharge on count 1 of $14,000.00. Count 2 will have a similar fine of $10,000.00 plus a surcharge of $4,000.00, for a total of $14,000.00, with the total fines and surcharges being $28,000.00. [ 50 ] Mr. Riemer shall have until December 31, 2012, to pay the fines and surcharges. B. Morgan, J