2019 QCCQ 7449, 2019 QCCQ 7449

Translated from the original French R. c. CFG Construction inc. 2019 QCCQ 7449 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF QUEBEC LOCALITY OF QUEBEC “Criminal and Penal Division” No.: 200-01-175428-139 DATE: December 3, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE HÉLÈNE BOUILLON, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v. C.F.G. CONSTRUCTION INC.

Accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ I. BACKGROUND [ 1 ] The company C.F.G. construction was found guilty of criminal negligence causing the death of Albert Paradis, one of its employees. [1] [ 2 ] The fatal accident occurred on the work site of the Seigneurie de Beaupré wind farm on September 11, 2012.

A 12-wheel Volvo heavy truck, owned by the accused, was the only vehicle involved. [ 3 ] The container truck was found at the bottom of the slope of a forest road, at the exit of a curve. The heavy cargo of reinforcing steel that had just been loaded lying on the ground in a ditch following a rollover. The truck door (left side) was partly open and was damaged. The lifeless body of the driver was lying on the ground. [ 4 ] There were no witnesses to the event. [ 5 ] Albert Paradis was an experienced trucker, having worked for more than 25 years in that capacity.

He knew the work site as he had taken on a load there the day before. He was also very familiar with the truck he was driving. He had been using it almost every day since early 2012 to do his job in the employ of the accused. [ 6 ] During the trial, the maintenance and the condition of the brake system of the truck were at the core of the dispute. [ 7 ] For a better understanding of this sentencing judgment, its appears essential to recall certain parts of the judgment rendered on February 14, 2019 which found the accused guilty of criminal negligence causing the death of Albert Paradis. *** II.

THE EVIDENCE ADDUCED AT TRIAL [ 8 ] The evidence showed more than a mere one-time failure in the maintenance and repairs of the brakes of the container truck and much more than some deficiencies in managing the maintenance records required by regulation. [ 9 ] The failures were neither temporary nor insignificant. They continued to exist over time and were extremely negligent. A. THE ACCUSED COMPANY [ 10 ] During the trial the accused often mentioned the company’s philosophy whereby employee health and safety was a primary

concern.

This assertion was not reflected anywhere in the evidence. [ 11 ] The officer’s claim that the corrective measures requested by the Société de l’assurance automobile du Québec (SAAQ) in 2010 had been put in place in 2012 was not supported by the evidence, except for the existence of some mandatory documents required by regulation which were, however, poorly managed: absent, missing, incomplete or improperly filed forms, some of which even contradicted each other. [2] [ 12 ] A passive and negligent attitude concerning the mechanical condition of the brakes of the Volvo truck, an attitude that was reported on a number of occasions, instead revealed the accused’s complete detachment from the reality of its employee, a heavy truck driver, as well as indifference to the protected social standard of workplace health and safety.

The consequences were, however, predictable. B. THE MECHANIC IN CHARGE OF THE GARAGE [ 13 ] The truck was repaired in a piecemeal manner, without concern for the overall functioning of the mechanical systems at issue, when in fact the components are connected to each other: [3] work in silos, in a fragmented manner, parts changed only when completely worn out, a narrow vision, reflecting a limited

interpretation of “compliance”, without regard for the danger that this way of “repairing” could represent. [ 14 ] The entire brake system of the truck was in a state of advanced wear, with significant deficiencies and a major imbalance due to the carelessness of the mechanic and of the head of the garage, both senior managers of the accused. C.

THE REPEATED WARNINGS [ 15 ] They had received warnings, however, concerning the condition of the brake system: numerous warnings from Albert Paradis, at least over a period of nine months, and comments from John Burke, a mechanic, who called the system [ translation ] “very, very defective” one week before the events, and whom the senior manager instructed to wipe the oil and burn the excess with a torch. [4] [ 16 ] In addition, in February 2012 the annual certification report for the truck had identified wear on all the brake linings. [5] [ 17 ] Albert Paradis’s repeated repair requests, about the same recurring problem, should have led the mechanic in charge to make more thorough verifications.

However, no road test was done to assess the brakes and determine their actual condition. [ 18 ] The trucker’s repeated complaints were not given all the seriousness warranted by the dilapidated condition of this heavy truck, purchased for $17,000 in 2009. The amounts invested and the repairs made were clearly insufficient.

This is amply demonstrated by its mechanical condition on September 11, 2012 amply demonstrates this. [ 19 ] Moreover, considering the large number of mechanical defects found on its entire fleet of trucks, [6] the accused was a company of interest for the Contrôle routier Québec agency, and it knew it. This was also a kind of warning. D.

THE BRAKES [ 20 ] The brakes of a vehicle are an indispensable mechanical safety system, particularly for a container truck, which places greater demands on the breaks due to the weight of its loads. [ 21 ] The mechanical inspection of the truck after the accident, an uncontradicted expert report, established that before the accident, they were operating at 53% of their maximum capacity, meaning they were almost half-inoperative. [ 22 ] In addition, there were an alarming number of major defects prior to the accident, i.e. fourteen, [7] all related to the brake system, when according to the regulations in force, a single major defect was sufficient for the accused to lose the right to put the truck into operation on the road. [8] [ 23 ] According to the mechanical verification expert heard at the trial, these numerous irregularities were the result of serious failures during the maintenance and repairs of the brake system: unsecured rod exits, adjustment levers exceeding the maximum adjustment, linings and drums clogged with a long-standing build-up of contaminants in the system. [9] E.

SEPTEMBER 11, 2012 [ 24 ] The condition of the Volvo truck was known to the mechanic in charge of the company’s garage, as were the difficult work site conditions. [ 25 ] The heavy weight of the load was a specific request from management, which was dissatisfied with the previous day’s half-load at the same location. [ 26 ] A reasonable person would never have allowed this truck to operate on the road. Fourteen major defects and a half-inoperative brake system required that it be taken out of operation.

Regulations required it, making the decision to send it to pick up scrap steel on a forest road, with the instruction to load the container to its maximum capacity, even more unreasonable. F. CERTAIN CONCLUSIONS IN THE JUDGMENT ON THE VERDICT [ 27 ] The work done at the garage reflects a lack of rigour and professionalism at all levels.

The evidence provides many examples of this: the premises, which were inadequate and outdated; the use of the officers’ personal credit cards to pay for purchases needed for repairs; the wear criterion applied (including brakes and tires); the culture that prevailed; the absence of reliable maintenance records [10] for the Volvo truck; inadequate recordkeeping required by regulation (absent or partially completed documents); ISO forms introduced in 2004 and still called embryonic in 2012 by the person responsible for completing them; the absence of proper involvement

of the president after he became aware of the different problems at the garage, including the condition of his vehicles. [ 28 ] The degree of departure here (from the manner in which a reasonably prudent person would have acted in the circumstances) reveals a continuum of negligence that is far from the temporary or occasional carelessness that could result in civil liability.

It is rather at a higher level, that is, a marked and significant departure involving both the physical and the moral elements. [ 29 ] The lamentable condition of the accused’s Volvo truck entailed a wanton and reckless risk for the safety of the trucker and for any person crossing his path. [ 30 ] Driving heavy vehicles is strictly regulated to increase the safety of road users. Those who choose to work in this standardized industry and fail to meet the requisite standard of care cannot be considered morally innocent. [11] *** III. THE EVIDENCE AT THE SENTENCING HEARING A. THE EVIDENCE ADDUCED BY THE CROWN 1.

The members of Albert Paradis’s family [ 31 ] The spouse and children of Albert Paradis gave sober and moving testimony. [12] [ 32 ] The loss or absence of a husband, a father and a grandfather is a heavy, daily burden for the members of this scarred, heartbroken family, still dealing with major repercussions, including the breakup of their family. [ 33 ] A penetrating pain, the loss of peace of mind, a huge void, an indescribable rage, like being hit by a hurricane, and the feeling of going over the edge are some of the words they used during this hearing to describe how they felt. [ 34 ] As Vauclair J.A. of the Court of Appeal of Quebec observed in Lacelle Bélec : [ translation ] [48] … in most cases, few words suffice to understand the extent of the suffering of crime victims.

A feeling of injustice fills any person who is the least bit empathetic . [49] Criminality sows suffering. The victim, the victim’s family, the offender’s family, the witnesses, and the offender himself or herself in many cases. More particularly, everyone understands the pain of the victims and of their family. … [13] [ 35 ] And a little further on: [ translation ] “The victims or their families can certainly not be blamed for sometimes harbouring negative feelings about the accused”. [14] [ 36 ] The sentencing process is intended to serve the public interest.

The Court is aware of the important and impartial role it plays as well as the aspects of the sentence that are its exclusive jurisdiction. [ 37 ] It is sensitive, however, to the misfortune that has stuck this family and hopes that they will be able to find some form of healing once the legal proceedings are over. 2.

The documentary evidence [ 38 ] The Crown filed certain documents concerning the offences committed by the accused under different provincial laws as well as a decision of the Tribunal administrative du travail, which upheld the suspension of the contractor’s licence of the accused for the period from March 5 to April 8, 2018. [15] We will examine this later. B. THE DEFENCE EVIDENCE [ 39 ] At the sentencing hearing, the defence called an employee of the accused and certain exhibits were filed. [16] 1. The financial controller of C.F.G. Construction inc. [ 40 ] Michel Tremblay has held this position since 2010.

Within the company, he handles the finances, including disbursements, receipts and billing . Occasionally, he is involved [ translation ] “a little” [17] in administrative internal management. However, he testified about some other aspects of the operation of the company, including the garage, document management, worker safety since 2012, the statements of offence received during this period, as well as business relationships with other companies. [ 41 ] We will begin with his area of expertise, i.e. finance. (

a) The financial situation [ 42 ] He stated that the accused's financial situation was precarious in 2012. To illustrate this Mr. Tremblay pointed out that at the time, the officers did the purchasing (including maintenance and repairs of the trucks and of equipment) with their personal credit cards.

[ 43 ] Asked to describe the current situation, he spoke of an increase in sales in recent years even though 2018 may have been more difficult. [ 44 ] According to the [ translation ] Audited Financial Statements as at December 31, 2017 , [18] the accused’s sales were $15.6 million, with net income of $191,000.

The book value of the company was $2,635,238. [ 45 ] On June 26, 2019 (at the time of the submissions on sentencing), more recent financial statements, those as at December 31, 2018, were not yet available [ 46 ] For this hearing, however, an [ translation ] Income Statement for the Year 2018 [19] (unaudited document) was prepared. It shows a drop in sales of $3 million from the previous year and a net loss of $101,000. [ 47 ] This decrease was due to the loss of three big contracts.

The company’s image and the ongoing trial made some customers uncomfortable. [ 48 ] In addition, the witness admits that the suspension of the contractor’s licence for a period of 35 days in 2018 also contributed to this situation. [ 49 ] The accused was operating with a line of credit of $350,000, used to the maximum. The financial institution’s position is unknown in the event that the Court imposes a fine bigger than that claimed by the defence. Mr.

Tremblay is of the opinion, however, that the accused may have to close down the company if the bank withdraws. [ 50 ] Various other expenses are burdening the company’s balance sheet, inter alia, the premium rate of the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST). We will come back to this. [ 51 ] In 2018, about 250 persons worked on an occasional basis for the accused. Currently, the number of permanent employees [ translation ] “may be” between 50 and 60 persons. [20] (

b) The garage [ 52 ] Mechanical work is no longer done in the same location as in 2012. It is now done on company premises. It is a closed area with a cement floor and enough space to do the maintenance and repairs on many pieces of equipment and vehicles. [ 53 ] This garage is much better equipped compared to the premises used in 2012, and includes a central compressor as well as travelling cranes for better handling of the equipment and parts by the mechanics. It is heated, with running water and many other features. (

c) Maintenance and repair [ 54 ] The company now advocates that [ translation ] “worn parts” of trucks be replaced with new parts. [21] [ 55 ] Referring to the testimony of the mechanic in charge of the garage in 2012 who stated during the trial in 2018, that he changed mechanical parts as seldom as possible, the financial controller maintains that now [ translation ] “much more prevention work is being done”. [22] [ 56 ] The mechanics, truckers and employees on the work sites are told to report any defect and any breakdown.

The mechanics are instructed to make the repairs and the drivers are advised that no equipment should leave the garage before they are sure that the repairs have been completely and properly done.

He added: [ translation ] “unlike at the time, because the financial situation is a little better, we will resort to leasing or using subcontractors to do the work if the company isn’t able to get the machinery or equipment out quickly”. [23] [ 57 ] The witness also testified about expenses for rolling stock maintenance, the external mechanics and subcontracted transportation. [24] [ 58 ] An [ translation ] “evolution” has allegedly taken place at the garage since 2012: improvement of the work premises and the presence of mechanics specialized in truck mechanics, one of whom has a PMP card, that is, the Preventive Maintenance Program card offered by the SAAQ. (

d) Document management [ 59 ] Since the accident in 2012, certain documents have been added to the company’s ISO system. [25] [ 60 ] In 2016, the accused noted that there were still deficiencies in the management of the documents required by the provincial authorities: [ translation ] “the image projected, it’s there, I don’t deny it”, the financial controller said, referring to the multiple statements of offence received [26] over the past few years. [ 61 ] Despite this, in 2018, the number of statements of offence was still substantial.

In this context, the witness attended training in January 2019 on the duties of heavy vehicle owners. During this training, he identified and understood that there was room for improvement and shortcomings to rectify in the management of the company. [ 62 ] In order to take definitive control of the situation, the company recently hired an external consultant to analyze the situation and take the necessary corrective measures. [27] (

e) The statements of offence

[ 63 ] Mr.

Tremblay commented on a document [28] filed by the Crown prepared by François Gourdeau, an investigator with Contrôle routier Québec, an agency affiliated with the SAAQ, which sets out the interventions of this agency in respect of the trucks of the accused company: the witness said that he was unaware of the information under the heading [ translation ] “ Intervention details ” which refers to seventeen accidents with material damages, including one with injured persons, in the period after the fatal accident, that is, between September 11, 2012 and June 26, 2019. [ 64 ] He added: [TRANSLATION] This is all part of the improvements to be made with the firm we hired, they pointed out to me actually that we should ask about the status of the company’s file with the commission, and with the SAAQ, much more regularly to check if there is anything in it which the drivers failed to tell us. … So the remedial measure we will put in place, which was brought to our attention, is to obtain the record more often to find out exactly what happened and then be able to analyze and get the necessary documents and to reprimand the persons concerned if necessary. [29] [ 65 ] Mr.

Tremblay disagrees, however, with the number of statements of offence issued for 2016 which he estimated was [ translation ] “between twelve and fourteen offences”, without further explanation, rather than the twenty-four statements of offence indicated in the document prepared by the Contrôle routier Québec investigator. [ 66 ] For the year 2018, he explains the fifteen offences committed as follows: [TRANSLATION] It’s because in our situation, among other things, we, there are documents that we fill out, but they weren’t fully filled out.

Either the mechanic did not write the mileage of the vehicle or the date wasn’t indicated or some information was missing, so they completely invalidated everything that was in the vehicle file. [30] [ 67 ] The controller did not mention, however, the offences related to the failure to maintain the heavy vehicles in good mechanical order, to comply with the maintenance standards, the frequency and terms of inspections prescribed by regulation, even though the evidence establishes that there were many of these offences in recent years. (

f) The fleet of equipment and trucks [ 68 ] Since 2012, some equipment has been refurbished, while other equipment has been taken out of service and has not been replaced. [ 69 ] The officers will try to assess the reliability level of a vehicle more often. [ translation ] “We refurbished one or two vehicles in order to be more efficient and more up to the standards”, [31] he said. [ 70 ] The rolling stock fleet currently comprises one roll-off, two tractors, five or six trailers, seven or eight pick-ups, two minivans, two sports utility vehicles and one car, for a total book value of $100,000. [ 71 ] A very low value, the financial controller Tremblay had to admit. (

g) Worker safety since 2012 [ 72 ] Several improvements from year to year in this regard: an increase in meetings on work sites and the use of prevention officers on work sites, if necessary, are the examples provided by the witness. [32] (

h) Relationships with other companies [ 73 ] C.F.G. Construction and Géniam are two independent companies, but they work together. They share the same place of business, the premises, the garage and the work time of certain employees. The line of credit of Géniam, run by the mother of the president of the accused, is $200,000. [ 74 ] When questioned about Géniam’s recent purchase of fifteen new vehicles, the witness seemed surprised. He also admitted that he is the owner of a numbered company which leases its only roll-off truck to the accused. *** IV.

THE POSITIONS OF THE PARTIES [ 75 ] A fine is the only sentence that can be imposed on an organization found guilty of a criminal offence in Canada, with or without a probation order. A. THE CROWN [ 76 ] The sentence must be proportional to the gravity of the offence and to the degree of responsibility of the accused, both of which are very high. This cardinal sentencing rule must be applied. [ 77 ] Considering the paucity of mitigating factors and the significance of the aggravating factors, it seeks a fine of $500,000. B. THE DEFENCE

[78] Considering the accused’s profile, certain corrective measures implemented, the delay involved, the media coverage of the caseand especially its weak financial capacity, it submits that a fine of $50,000 and a probation order would achieve the penological goalswhile enabling it to continue its business activities, which moreover, would be compromised by the imposition of a larger fine. *** V. LEGAL PRINCIPLES AND ANALYSIS A.

A FAIR AND APPROPRIATE SENTENCE [79] In order to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society, theappropriate sentence must denounce the unlawful conduct and the harm done by the offender to the community, deter the offender andothers, separate the offender from society where necessary (not applicable here), assist in the offender’s rehabilitation, providereparations for harm done to the community and, lastly, promote a sense of responsibility in the offender.[33] [80] The sentence must respect the fundamental principle of proportionality, which is the central element in its determination: thesentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.[34] [81] In addition, the Court must take into consideration aggravating and mitigating circumstances as well as harmonization ofsentences, avoid unduly harsh sentences, and examine alternative sanctions that are reasonable in the circumstances and consistent withthe harm done to victims or to the community.[35] [82] Echoing the words of Vauclair J.A. of the Court of Appeal on the subject of sentencing: [TRANSLATION] [28] Some offences occasionally call for punitive objectives and the judge must be sensitive to this: R. v.

Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras. 5–6, 49–50, 78. In this regard, it should be noted that Parliament itself does not exclude anyobjective of the exercise that leads to a just sentence. When Parliament does so, it enacts provisions that specify that for certain offences the sentencing judge must give particular attention to the objectives of denunciation and deterrence.

It then seeks only[TRANSLATION] “to influence the discretionary implementation of the objectives rather than dictate a specific outcome”, whilerecognizing that [TRANSLATION] “balancing the sentencing objectives remains discretionary”: R. c. Rayo, 2018 QCCA 824 at paras.106-109. [29] Thus, even when the objectives of deterrence and denunciation are called for, the sentencing exercise should not cause the judge toignore the other objectives; only balance leads to a just sentence: Harbour c.

R., 2017 QCCA 204, at paras. 77-84. [30] I repeat the very apt words of my colleague Doyon that “a sentence that is increased in length for reasons of deterrence withouttaking into consideration the proportionality rule constitutes an error of law”: R. c. Paré, 2011 QCCA 2047 at para. 46 and cases cited. Inaddition, my colleague wisely stated that the search for deterrence to the detriment of evidence that shows the merit of the objectives ofrehabilitation is inconsistent with the principle of individualization: R. c. Paré, 2011 QCCA 2047 at para. 48. “Sentencing is aninherently individualized process”: R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 92.[36] [83] In that judgment, Lamer J. referred to the exercise that must be conducted by judges: … an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of theoffender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normativecharacter of the offender's conduct.[37] [84] In addition to the sentencing principles, objectives and factors discussed above, the Court must examine the specific principlesset out in

section 718.21 of the Criminal Code governing the sentencing of an organization.[38] [85] We shall consider the paragraphs, one by one. B.

SECTION 718.21 OF THE CRIMINAL CODE 1.

The benefits derived by the accused [86] If we fail to consider the specific elements of the evidence, it could be easy to conclude that the company derived no economicbenefits related to the fatal accident for which it was convicted. [87] Criminal negligence causing the death of an employee occurred, however, as a result of a failure of the accused: the failure tospend the necessary and essential amounts for the maintenance and repairs of the truck driven by the victim. [88] The company’s precarious financial situation in 2012 – it had been under the protection of the Bankruptcy and InsolvencyAct[39] for two years – was certainly not unrelated to this situation. [89] The accused had neither a line of credit nor a bank credit card at that time, and those of the members of its management teamenabled it to survive.

The bare minimum was spent to run the business. [90] There are numerous examples in the evidence adduced at trial establishing that the old Volvo truck was particularly affected bythese restrictions. The amount of money that should have been invested (in its maintenance and repair), and was not, was clearly abenefit for C.F.G. Construction, that is, to get out of its economic bind and insolvency as quickly as possible. [91] This is an aggravating factor.

2. The degree of planning involved in carrying out the offence and the duration and complexity of the offence [ 92 ] The offence is not the result of an error in judgment committed at a specific point in time. It is more a reflection of an existing culture and a way of doing things that is common, present and accepted within the accused company and amplified by its financial difficulties. [ 93 ] The period at issue is approximately six months.

During this time, numerous warnings were sent to the person in charge of the garage regarding the poor condition of the entire brake system of the truck involved in the fatal accident. [ 94 ] An attitude of detachment, indifference and carelessness concerning the servicing and changing of the brakes on the Volvo truck, without any real consideration for compliance with regulatory directives, swept away any concern for safety beyond mere negligence. [ 95 ] This is an aggravating factor. 3.

The concealment or conversion of assets to avoid the fine [ 96 ] The Court is surprised, even perplexed, at the absence, in late June 2019, of an important document, namely the [ translation ] Audited Financial Statements for 2018 and the lack of explanation provided for many of the headings of the [ translation ] in-house income statement prepared for that same year. [ 97 ] Furthermore, the close ties with Géniam generate many more questions than answers and more confusion than clarity.

The witness was at a loss for words when confronted with the purchase of around fifteen new vehicles in 2019 by this company, even though he worked in the same administrative premises and the common garage was located there. [ 98 ] To cause astonishment and consider some parts of a testimony to be implausible can never amount to sufficient evidence to prove an aggravating factor. This is the case here. 4. The economic viability of the organization and the continued employment of its employees [ 99 ] The defence argued that the Court should follow the decision in 9147-0732 Québec inc. c .

Directeur des poursuites criminelles et pénales [40] concerning a legal person’s capacity to pay. [ 100 ] A few words about the facts underlying this case are in order. The company was found guilty of the regulatory (not criminal) offence of having acted as a building contractor by carrying out or causing to be carried out construction work without holding a current licence for that purpose. For this offence, the mandatory minimum fine was $30,843. [ 101 ] The Court of Appeal of Quebec, asked to rule on whether a legal person can benefit from the protection against cruel and unusual treatment or punishment under

section 12 of the Canadian Charter of Rights and Freedoms , answered in the affirmative. [ 102 ] In

summary, the Court noted that it is entirely possible for a minimum fine to be grossly disproportionate. The fine can be cruel to the legal person. A legal person can suffer from such a fine due to its harshness, its severity and a kind of hostility.

The analysis of the situation must be undertaken according to the reality experienced by the legal person and not based on a realitythat does not concern it. [ 103 ] Bélanger J.A., for the majority of the Court of Appeal, wrote the following about the public interest: [TRANSLATION] [129] Under the Criminal Code , a legal person’s capacity to pay is not an element that must be taken into consideration in setting the fine. However, the law requires that a penal or criminal sanction take into account the public interest, as provided in paragraph 718.21 (

d) Cr.C . As mentioned by the Minister of Justice of Canada in the comments that followed the legislative amendments of 2004, the public interest dictates that the economic viability of an organization and the continued employment of its employees be ensured … … [130] I do not believe that Canadian society would find it acceptable or in the natural order of things, in any circumstances , that a totally disproportionate fine drive a legal person or an organization into bankruptcy, thereby jeopardizing the rights of its creditors and forcing dismissals.

In this case, not only would certain persons be penalized, but sometimes an entire community and, by extension, society at large. … [134] The public interest is a geometrically variable concept that requires that [TRANSLATION] “the general objective of deterrence, the gravity of the offence, its impact [on] the community, and the public’s attitude towards it and its trust in the legal system be taken into consideration”.

Although a fine is more in the nature of punitive justice, its ultimate goal is to get the offender to admit his or her wrongdoing and to restore the balance between the offender and the community. [41] [Emphasis added.] [ 104 ] The size of the organization as well as the economic impact of the fine on it must be considered by the Court, which believes in the importance of weighing all the evidence adduced. [ 105 ] This exercise is, however, very hard to perform in the case at bar. The lack of evidence makes it more difficult to asses the accused’s true financial situation.

[ 106 ] We do not have the [ translation ] Audited Financial Statements for 2018. The [ translation ] Income Statement filed is incomplete. The witness’s answers as to the possible financing situation were repeatedly approximate or evasive. The number of employees in 2018 was about 250 occasional workers and [ translation ] “more or less” between 50 and 60 permanent employees.

What’s more, there is no document to support what was asserted . [ 107 ] Evidence of the impact of imposing a fine of over $50,000 seems equivocal with respect to maintaining the credit margin authorized by the financial institution and with respect to the economic viability of this company with sales of $13 million and a book value of approximately $2.6 million in 2018. [ 108 ] The evidence reveals a vague and uncertain portrait of the company rather than its true face.

It would have been preferable for the information provided to be accurate and reliable. [ 109 ] To determine the appropriate sentence, the judge should have the most complete information possible in support of the accused’s position. [ 110 ] As the Court of Appeal of Quebec stated in Jean , [42] the judge must take into consideration the collateral consequences resulting from the law, but to the extent the sentence that would avoid this indirect consequence is just and appropriate. [ 111 ] Referring to certain decisions including the one previously cited, Vauclair J.A. in Traité général de preuve et de procédure pénale wrote: [ translation ] “An inappropriate or artificial sentence should not be imposed in order to allow the accused to escape the collateral consequences of an otherwise justified sentence”. [43] [ 112 ] This is what is required of the Court: the current economic viability of the accused company is presented as a factor militating in favour of a more lenient fine, whereas in 2012, a precarious financial situation existed and it contributed to the commission of the offence of criminal negligence causing the death of one of its employees. [ 113 ] This is paradoxical and disturbing. [ 114 ] The organization’s financial capacity is nevertheless a relevant factor. 5.

The cost of the investigation and of the prosecution - admissions [ 115 ] The police investigation resulted in overtime for the investigators involved: the cost was determined to be $8,547.50. [ 116 ] The parties also agree on the amount of the storage costs for the Volvo truck incurred by the Sûreté du Québec (SQ): it is estimated at $54,603.08. [ 117 ] The total amount of expenditures incurred by the government was determined to be $63,150.58. This is a relevant factor. 6.

The imposition of penalties on the organization or one of its representatives in respect of the conduct that formed the basis of the offence [ 118 ] The accused is currently being prosecuted for regulatory offences in connection with the events forming the basis of this criminal charge. It is liable to a fine of $83,000 based on the Court’s understanding of the evidence adduced. The outcome of this matter remains unknown. [ 119 ] We also learned that the accused company has a high CNESST premium rate.

In the demolition industry, this rate, which is based on an employer’s classification, should normally be 9% of wages paid. However, the accused's personalized rate is between 22% and 23%. The increase in this percentage is due to the company’s situation and the claims made. The amount of $196,805.34 for the death of Albert Paradis, appearing on Exhibit SD-4 filed in defence, is one of the claims that caused the increase in this rate. [ 120 ] This is a relevant factor (taking into consideration the necessary nuances). 7.

Convictions for a similar offence or sanctions for similar conduct [ 121 ] On November 17, 2017, the Bureau des régisseurs of the Régie du bâtiment suspended the accused’s contractor’s licence for 35 days because of various failures. This decision was upheld on review. An appeal was brought before the Tribunal administratif to contest this second decision.

The Construction industry and occupational qualification division upheld the previous decisions and confirmed the suspension of the accused’s contractor’s licence for the period from March 5 to April 8, 2018. [44] [ 122 ] The latter decision contains some relevant passages, including paragraph 40: [TRANSLATION] The CNESST had to intervene repeatedly in 2016, and a comparison of the 2016 data with the data for the years 2008 to 2013 shows that there is more data for that year and that there were more departures, more decisions rendered and more statements served. [ 123 ] Moreover, this is what the documents filed by the Crown show. [45] [ 124 ] The regulatory offences for which the accused has been convicted since September 2012 are numerous and they involve many laws. [46] [ 125 ] There are numerous offences of all kinds under the Highway Safety Code , [47] some of which concern

section 213 (requirement that equipment be kept in good working order),

section 243 (sufficient braking force of a road vehicle),

section 244 (independent braking system requirement),

section 270 (tires that conform to the standards prescribed by regulation),

section 437.1 (proper use of a trailer or

semi-trailer),

section 519.15 (requirement that heavy vehicles be maintained in good mechanical order to comply with the standards prescribed by regulation) and

section 519.17 (mechanical defects). [ 126 ] The partial inspection of September 18, 2012, the complete inspection of November 16, 2012 as well as the compliance checks of September 5, 2018 and of March 18, 2019 all showed various offences in respect of the accused’s vehicles, including: 24-hour period exceeded, incomplete file, hours of service and hours of driving exceeded, absence of a daily log, incomplete daily log, non-compliant maintenance frequency. [ 127 ] Some offences are related to the mechanical condition of the accused’s fleet of vehicles, in contravention of the Highway Safety Code , [48] which stipulates that heavy vehicles must be maintained in good mechanical order by the owner of the vehicles who must comply with the maintenance standards and the inspection frequency and inspection procedure prescribed by regulation. [ 128 ] Even the [ translation ] Income Statement prepared by the financial controller [49] of the accused shows that, for the year 2018 alone, $17,374.80 was disbursed to pay statements of offence. [ 129 ] Prior to the fatal accident, the accused had numerous convictions for regulatory offences.

Since 2012, they have been even more frequent.

The presence of infractions on a continuous basis over such a long period is of concern. [ 130 ] A company which is repeatedly warned by the competent authorities and by the courts and which fails to make significant changes to its reprehensible and dangerous conduct compromises the safety of society. [ 131 ] These systemic illegalities show that they are part of the culture of the accused company. [ 132 ] Regardless of the angle from which the issue is examined, the accused’s rehabilitation is far from assured and there is a risk of re-offending. [ 133 ] This is an aggravating factor. 8.

Penalties imposed on a representative for their role in the commission of the offence [ 134 ] There is no evidence of any penalties or disciplinary measures imposed by the accused on Yannick Émond, the mechanic in charge of the garage at the time of the events, for the important role played in the perpetration of the offence. [ 135 ] During the trial, Yannick Émond stated that he had voluntarily left the company five years after the events. [ 136 ] This lack of reaction on the part of the accused, disapproval of one of its wrongdoing employees differs from the expected reaction but is a neutral factor. 9.

Restitution or compensation that the organization was ordered to make or amounts that the organization paid to a victim of the offence [ 137 ] The spouse of Albert Paradis received an indemnity of $120,000 from the CNESST following her husband’s death. According to the financial controller of the accused and the document filed as Exhibit SD-4, the accused will have to pay this amount, plus other expenses related to the victim’s death, i.e. a total of $196,805.34, to the CNESST, via the personalized premium rate.

This is, in a way, an indemnity imposed on the accused, part of which was given to the victim’s spouse. This is a mitigating factor. 10. Any measures that the organization has taken to reduce the likelihood of it committing a subsequent offence [ 138 ] The evidence shows a significant improvement in the physical premises where the repairs and maintenance of the rolling stock and of the equipment are done.

In addition, a mechanic did PMP training and repairs are now done using new or recycled parts. [ 139 ] The addition and changing of certain documents in 2016 and prevention efforts aimed at the mechanics, truckers and work site employees, directing them to report any defect and any breakdown to the mechanic, were submitted as major improvements. [ 140 ] Notwithstanding the words used and the statements made, the portrait of the accused in 2019 is not very different from that of 2012, apart from the significant improvement of the garage.

This is very little considering the overall situation. [ 141 ] The same file management problems still exist, showing carelessness and a lack of concern for compliance with the very clear legal requirements for heavy truck owners. A lack of foresight, efficiency and authority still prevails within the accused company. [ 142 ] The addition of a mechanic with PMP training is meaningless, since the senior manager, the person responsible for the garage at the time of the events (2012), also had this certification.

The same mechanic had also maintained that the repairs were done using new or recycled parts. [ 143 ] The number of offences of all kinds confirms that the weak measures put in place by the accused were inadequate and insufficient. [ 144 ] Consequently, the only inference that can be made is that the accused did not react seriously and take the requisite corrective actions following the death of its employee on September 11, 2012. [ 145 ] The testimony of the financial controller establishes it; the evidence of the accused’s convictions for numerous offences under different provincial laws confirms it. [ 146 ] The physical location where repairs and maintenance are done is the only improvement that constitutes a mitigating factor.

C. THE OTHER FACTORS [ 147 ] As previously mentioned the sentence that the Court must impose will necessarily depend on the objective and subjective gravity of the offence as well as the aggravating and mitigating factors. [ 148 ] The objective gravity is determined by the maximum sentence provided by Parliament for the offence and where the offence sits, in terms of the sentence, in the hierarchy of Criminal Code offences. [50] [ 149 ] A fine is the only sentence that can be imposed on an organization in Canada.

The Criminal Code does not set any limit on the amount fixed by the Court when an organization is convicted of an indictable offence. [ 150 ] Criminal negligence causing death is one of the most serious offences in the Criminal Code .

The offence is at the high end of a continuum of moral blameworthiness. [51] [ 151 ] With regard to subjective gravity, at the sentencing stage, the judge must consider, inter alia, the manner in which the offence was committed and the moral blameworthiness of the offender and identify aggravating and mitigating factors as well as other relevant circumstances. [ 152 ] The parties agree on neither the accused’s actual situation nor the weight that should be assigned to certain aspects of the evidence adduced. 1. The mitigating factors [ 153 ] The Court identifies only two mitigating factors: 1.

The positive change in the physical location where the maintenance and repairs of the vehicles and machinery are done; 2. The [ translation ] “mandatory and automatic” reimbursement, via the CNESST premium rate, of the amount of $196,000 disbursed in connection with the death of Albert Paradis (a part of which was given to the victim’s spouse). 2. The aggravating factors 1. The significant consequences for the members of the victim’s family; 2. The long period over which the offence was committed; 3. The numerous warnings received during this period.

The accused knew the risk and still persisted in its morally reprehensible conduct; 4. The financial benefit obtained by the accused; 5. The accused’s record of numerous and constant regulatory offences before the events; 6. The accused’s record of numerous and constant regulatory offences after the events; 7. The risk of re-offending, which still exists: the absence of serious corrective measures and the perpetuation, over time, of a culture of negligence and non-compliance with standards and regulations; 3.

The relevant factors [ 154 ] in addition to the accused’s financial capacity, the defence invites the Court to consider the following factors as relevant in the case at bar:

a) The delay [ 155 ] The defence contends that the principle established by the Court of Appeal of Quebec in Yessaian should be applied here, i.e.: [ translation ] “that long delays that cause uncertainty for the accused, without being a sufficient ground for an action under the Charter , can still constitute a mitigating factor in calculating the appropriate sentence”. [52] [ 156 ] Note that in Yessaian , no delay was attributable to the accused, who was subject to stringent parole conditions even though he was dependent upon the co-accused.

In addition, before he was sentenced the accused had filed a motion for a reduced sentence for unreasonable delay. [ 157 ] The situation in that case is very different from that of the accused.

Beginning on June 6, 2013, the date the information was filed, apart from a period of about seven months, out of nearly six and a half years, the minutes do not disclose any request on the part of the accused to accelerate the process, and on the contrary, many postponements were at its request or by consent of the parties. [ 158 ] Considering this significant qualification, delay is rejected as a determining relevant factor.

b) The media coverage [ 159 ] The defence wants the publicity resulting from the public nature of the proceedings to be recognized as a relevant, even mitigating, factor. [ 160 ] In Harbour , Vauclair J.A. observed at paragraphs 66 et seq .:

[TRANSLATION] [66] … The media impact, taken as the mere disclosure of the crime and of its perpetrator, in most cases does itself implyconsequences that would make it a mitigating factor. I believe this is what the Court confirmed in Thibault, Chav, and Savard, supra.The inference of a stigma resulting from a charge is not always a factor, as it is intrinsic at different levels, according to the crime. Itappears that the gravity of the crime and the stigma attached to it are directly proportional: R. v.

Martineau (SCC),[1990] 2 S.C.R. 633. [67] On the other hand, I find it difficult to argue that evidence of an offender’s fall from grace following a charge and a conviction,whether covered in the media or not, can never be relevant. Rather, I am of the view that the case law does recognize this as a relevantcircumstance in sentencing.

A judge may, in the exercise of his or her discretion where the evidence warrants, consider that the passagethrough the criminal justice system in itself contributes to the attainment of the objectives of the sentence, including, but not limited to,because of its media coverage. … [74] The more this factor is supported by the evidence, the more the judge must consider it while weighing it with the otherelements and the sentencing objectives.

This is a relevant contextual element.[53] [161] There is no evidence to support a conclusion that the fact that the accused went through the criminal justice system contributedto the achievement of the sentencing objectives because of the media coverage it received. The media coverage of this important caseinvolving worker safety certainly caused concern among the lenders. However, as previously mentioned, the gravity of a crime and thestigma attached to it are directly correlated. This relevant factor has very little weight here. D.

THE CASE LAW [162] Case law plays a prominent role in helping judges with the delicate task of sentencing. However, comparing sentences is oftenan imperfect exercise that has its limits. [163] Generally abundant, it is rather tenuous concerning a company convicted of criminal negligence causing death. [164] There are very few precedents in Canada. We find a single decision in Quebec, Transpavé inc.,[54] where a fine was imposed ona legal person for this specific type of offence.

In that case, an employee was crushed to death by the gripper of a palletizer when heattempted to remove a pileup of blocks from a pallet. Neither the company nor any of its employees were aware that the plank detectionlever could get stuck and unstuck. There was a light curtain safety device to restrict access to the place where the accident occurred andneither the company nor its officers knew that it had been disabled at the time of the accident. [165] After a plea of guilty, the parties jointly recommended to the judge a fine of $100,000.

The fine took into consideration theamount of $750,000 voluntarily invested by Transpavé in workplace health and safety after the accident. The Court followed thesentencing recommendation. [166] Stave Lake Quarries,[55] a decision of the Provincial Court of British Columbia, is another case where a joint submission for afine of $100,000 was presented to the judge after a guilty plea to one count of criminal negligence causing the death of one of thecompany’s employees.

The parties took into consideration the remedial steps taken to improve the safety protocols as well as the absenceof a criminal record. [167] The Court of Appeal for Ontario in R. v. Metron Construction Corporation[56] significantly increased the sentence passed attrial for the death of four employees and injuries to another after a swing stage collapsed. The Court of Appeal increased the fine from$200,000 to $750,000, holding that denunciation and deterrence should have received greater emphasis in the circumstances.

In thatjudgment, the Court of Appeal made some observations on the impact of a large fine on a corporation and its economic viability. [168] All of these situations are distinguishable from the situation of C.F.G. Construction inc. [169] Some broad trends emerge, however: the case law tends to emphasize the objectives of denunciation and deterrence when finingan organization, but without losing sight of other criteria.

The golden rule is to achieve proportionality without exceeding what is justand appropriate.[57] The measure of what is necessary is, however, a question of balance and remains a matter for the courts.[58] [170] Before concluding, a few words on the two elements of the sentence that will be imposed. E. THE VICTIM SURCHARGE The parties agree that the victim surcharge rate that should apply in the case at bar is the rate that was in effect at the time of the events,i.e. 15% of the fine imposed for the offence.[59] F.

THE PROBATION ORDER [171] Both parties contend that a probation order should be made and that it should include some of the optional conditions providedin

section 732.1(3.1) of the Criminal Code. [172] Each counsel submitted a draft order emphasizing the importance of making changes and improvements to the accused’s safetypractices. In their opinion, however, paragraphs (

a) and (

f) should not apply. [173] Despite the lack of serious corrective measures taken since 2012 in respect of the neglected aspects of the garage, resulting inrecurrent non-compliance with the regulations in force (trucks, maintenance and repair files, etc.), the organization still maintains that itwants to improve. This message is identical to the one conveyed in January 2018, during the trial.

[ 174 ] The officer of the accused agrees with the imposition of a probationary measure. He put himself forward as the person the Court could designate to report. [ 175 ] Counsel for the accused argues that the mandatory character of such an order is akin to an alternative sanction and can thus allow the judge flexibility in imposing the overall sentence. [60] *** VI. IN

SUMMARY [ 176 ] The analysis of the principles, objectives and factors mentioned above leads the Court to conclude that it cannot accept either of the sentencing recommendations presented by the parties as to the quantum of the fine. [ 177 ] The defence’s recommendation does not sufficiently reflect the numerous aggravating factors in this case or the gravity of the offence and the degree of responsibility of the accused. [ 178 ] The fine imposed must be more than a mere cost of doing business or another warning. [61] [ 179 ] As for the crucial issue of the company’s economic viability, in the absence of a reliable financial picture and minimally preponderant evidence of a real possibility of bankruptcy, the accused should not be able to benefit from the lack of clarity here. [ 180 ] The evidence does not make it possible to reach this threshold, which is dependent upon different failures which unfortunately appear consistent with the general operation of the organization.

Moreover, in the case at bar, a light fine would not be compatible with the application of the proportionality principle. [ 181 ] The fine recommended by the Crown is closer to what is appropriate and required in the circumstances. It takes into account the numerous aggravating factors and proportionality. However, it does not reflect the amounts paid by the accused (to the CNESST) and, more generally, the principle of sentence individualization. *** [ 182 ] Lastly, it must be understood that no decision can compensate for the loss of a human life. *** VII.

TO CONCLUDE [ 183 ] The determination of the fine, which must be just and appropriate in the circumstances, is not a simple task. [ 184 ] The indictable offence committed by the accused is one of the most serious offences in the Criminal Code .

The Court is of the opinion that priority must be given to the objectives of deterrence and denunciation when sentencing a company that exposed one of its workers to an unquantifiable risk and that persists in negligent conduct by regularly contravening the regulations in force. [ 185 ] The sentence must be significant and it must reflect the denunciation of conduct that offends the values of our society and particularly those surrounding workplace health and safety.

In addition, it must send a clear message to any company that might be tempted to engage in the same conduct. [ 186 ] It must, however, be modulated by taking into consideration possible combinations of measures that can be adapted to achieve the sentencing objectives, including fostering rehabilitation and avoiding re-offending. [ 187 ] Considering all the factors mentioned above that must be taken into account, the Court is of the opinion that, in the circumstances, the accused deserves a fine of $300,000. [ 188 ] FOR THESE REASONS, THE COURT: [ 189 ] IMPOSES a fine of $300,000 on the accused; The manner in which it is to be paid and the time by which it must be paid will be determined after discussion with the parties; [ 190 ] MAKES , in accordance with

section 731 of the Criminal Code , a three-year PROBATION ORDER which includes the following conditions: Legal obligations - The accused must comply with all of its legal obligations. Initial follow-up - Within 15 business days, a meeting must be held between the designated senior manager and the person in charge of supervision in order to discuss this order. External consultant and reports - The accused must retain the services of an external consultant (with relevant expertise) so that the consultant can assess the situation (compliance with the laws and regulations to which the company is subject) and recommend appropriate corrective measures as well as a

schedule.

This information must be contained in a written report (this report will identify the workplace risks and put in place concrete measures to ensure employee safety as well as disciplinary measures in case of non-compliance); - A re-assessment of the situation must be done annually by the external consultant, who must provide a report thereon; - The external consultant’s report must be delivered on June 1 of each year (of the probationary measure) to the person responsible for supervision (he will be identified below); - The senior manager of the accused, designated to represent it, must participate in a meeting with the person responsible for supervision within three months following the delivery of the documents, annually.

Training - The accused must provide all of its employees with training on the duties and responsibilities of users and operators of heavy vehicles, at the time of their hiring and once a year; - It must keep a record of the employees who participate in this training and deliver it on June 1 of each year to the person responsible for supervision; - It must provide the person responsible for supervision with the relevant information concerning this training – the content, the duration, the name of the person giving the training, the person’s qualifications – at the same frequency as the record of the participants.

Interception and conviction - The accused must require that its employees immediately report any interception by the competent authorities in the course of their work; - It must keep a record of the interceptions that led to a statement of offence or other measures by the competent authorities; - It must provide the person responsible for supervision with this record on June 1 and December 1 of each year of the probationary measure, beginning June 1, 2020; - The accused must provide the person responsible for supervision with a copy of the minutes or of the judgment for any conviction against it, within 15 business days thereof.

Annual inspection report - The accused must provide the person responsible for supervision with a copy of the annual inspection report of the SAAQ within 15 business days following receipt thereof. Meetings and follow-ups - Other meetings, not provided in the order, must be held when situations requiring the intervention of the person responsible for supervision occur. The designated manager must attend these meetings and offer adequate collaboration in order to put in place the required and requested corrective measures.

Designations - The Court designates as the senior manager of the company who will ensure compliance with the conditions set out: Franky Glode . - Monitoring of the execution of the order is entrusted to: Detective Sergeant Sylvain Charest (or any other person designated by his organization if he is unable to perform the supervision).

Team Manager Quebec Major Crimes Division Sûreté du Québec 1050 des Rocailles Street Quebec City, Quebec G2K 0H3 Office: 418-623-6330 Fax: 418-623-6522 Sylvain.Charest@surete.qc.ca - He will receive assistance from: Captain Éric Tremblay (or any other person designated by his organization if he is unable to provide this assistance).

Director Service du contrôle routier de la Capitale-nationale Contrôle routier Québec 1685 Wilfrid-Hamel Blvd. Quebec City, Quebec G1N 3Y7 Office: 418-528-0448, ext. 230 Fax: 418-528-0716 Eric.tremblay@saaq.gouv.qc.ca Service de Contrôle routier – Capitale Nationale [ 191 ] IMPOSES on the accused, under

section 737 of the Criminal Code , the payment of a victim surcharge at the rate in effect in September 2012, i.e. 15% of the fine imposed. ______________________________ (SIGNED) HÉLÈNE BOUILLON, J.C.Q. Mtre Thomas Jacques Criminal and Penal Prosecuting Attorney Mtre Charles Levasseur Counsel for the accused