R. v. Vale Canada Ltd., 2013 ONCJ 621

Information No. 12-5441 Citation: R. v. Vale Canada Ltd. , 2013 ONCJ 621 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. VALE CANADA LTD. -and- KEITH BIRNIE R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE R.W. LALANDE on September 17, 2013, at SUDBURY , Ontario APPEARANCES: W. WILSON Counsel for the Crown D. MCKASKLE Counsel for the Crown D. HAMILTON Counsel for Vale Canada Ltd. P. BRADY Counsel for Vale Canada Ltd. D. HAMILTON Agent for Keith Birnie P. BRADY Agent for Keith Birnie TUESDAY, SEPTEMBER 17, 2013 ...

R E A S O N S F O R J U D G M E N T LALANDE, J. (Orally) The Court thanks the family members and friends for being here. This is obviously an important day. It’s a sad day but an important day. It brings the situation that led to these tragedies to an end. We often hear about people talking about closure; the need for it; the benefit of it. It doesn’t make things go away but to some extent, it may help people move ahead. The lawyers have been talking and the Court is well aware of most of what has been said. I was not personally familiar with the facts.

I read about the incident as many people have in the newspaper. I said to myself and other members of my own family, the family and friends of the two victims are grieving and it will be difficult for them to get over the loss. As far as the law goes, the past decisions which counsel have made reference to do have an objective which in large part has been referred to as a protective kind of objective, protection of the public and protection of the employees.

The Act under which these charges were laid is designed to help establish safety standards in the workplace and to help ensure the standards of conduct and performance of employers. The applicability of deterrence; and I say deterrence because deterrence is a principle that we use in sentencing. Deterrence is referred to as specific deterrence and general deterrence. Specific deterrence would be to deter an individual from repeating a bad act or a crime. General deterrence applies at large.

It’s where a member of the public sees what happens to somebody who has committed a crime in the usual sense, of course, under the Criminal Code of Canada as we often see these crimes committed, and makes them reflect upon how that type of conduct is abhorred and not to be repeated. The sentencing judge has discretion to determine the appropriate kind of punishment within limits of course, as set by law.

It is often said that the Court must consider the appropriateness of a penalty taking into account a plea of guilty, as has happened here, and in many cases the Court looks at a plea of guilt as a mitigating factor because it saves the community a lot of expense to bring the case to trial and it provides a more predictable result. The plea of guilt which I’ve heard today, in my view, as indicated, goes a long way to bring closure because with it lies an element of accountability of what has occurred. It is obvious and we all know, that we can’t turn back the clock. We can’t turn back the hands of time.

If the incident giving rise to this matter or the circumstances giving rise to this matter could be undone and two lives saved, there is no doubt that everyone here present would opt to do whatever possible to make that happen.

The penalty that the Court on its own would impose would take into account factors which the lawyers have mentioned including the size of the company, the scope of its activity, activity related to the incident, the extent of actual harm to employees, the maximum penalty prescribed by law which you’ve heard about and the importance and the need to enforce regulatory standards by way of deterrent sentences. There is a significant benefit here in the lawyers having arrived at this joint position. The benefit is that of predictability.

In law, the Court must proceed on the basis of utmost deference to jointly negotiated submissions. In these circumstances, based on the information at hand that I have heard, there’s no strong reason for me to be disinclined to follow the proposed sentence on the basis that it is contrary to the public interest or somehow unreasonable or unfit. There is no penalty that the Court could impose to compensate the grief suffered by the families of the victims. The penalty imposed must be relevant and address all aggravating and mitigating circumstances. The aggravating features are obvious.

We have the tragic death of two very productive and well loved people. On the other side, I have heard that the company, since the tragedy, has taken steps as outlined by Mr. Brady to make sure as best possible that this type of tragedy does not reoccur. Another way to put it is that it must make sure that this offence or the offence for this company shall not be repeated. Inherent in the Court’s responsibility in imposing an appropriate sentence is a message to industry, to businesses, that nothing should trump safety.

Things went terribly wrong on this occasion; however, on balance, insofar as I can determine; measuring this against the maximum provided by law, measuring this to be in line with the submissions that I have heard, measuring this against the backdrop of the lawyers not meeting amongst themselves only but having the benefit of several judicial pre-trials with my colleagues, and considering the entirety of it all I must accept that the penalty or the monetary penalty proposed, in law, remains consistent with the gravity of the

offence and the blame-worthiness of the company. Given the enormity of these tragic consequences, namely the loss of life, one may wonder whether any sentence might be categorized as being appropriate. We’re here to do a job. We’re here to make sure that justice is done. We’re here to make sure that justice is done within the parameters of what we have to work with and I know that you all know and understand that. At the end of the day, it is difficult for me to say that the sentence as jointly submitted would not be adequate within the proper administration of justice.

Of course, I could tweak it here and there but the end result would in large part be close to what is being proposed. The Court wants to express profound sympathy for the family. It was very, very touching to hear the family members speak. Thank you for doing that today and thank you for putting it on the record. It’s all recorded and it’s all part of the record and it will remain part of the record. It’s a difficult day because we’ve had to review some of the circumstances giving rise to the offences.

On the other hand I am sure that for those who are here as family and friends today it will also represent an important element of closure. I’m using that word again but I just can’t think of a better one, enabling each of you to move forward. There’s no doubt, as was indicated I think by Brianna, that the spirit of these two people shall live on in your hearts and minds which I think is the best that we can hope for. Other than that, the sentencing process, if I can put it that way, is or will be in a moment concluded for today.

This matter led to the laying of a number of charges and that led to the matter being before the Court. It’s gone through the process. Today is the last day. A plea has been entered and the sentence, Madam Clerk, on each of the three counts, if you can endorse the record, will be a monetary fine of $350,000 for a total of $1,050,000. Also to be added to that will be the applicable surcharge. In terms of other counts before me counsel? MR. HAMILTON: Sorry, just before we move to other counts, could I ask for 60 days to pay with respect to that Sir? THE COURT: Thank you. No issue there? MR.

WILSON: No issue there Sir. THE COURT: The company will have 60 days in which to make full payment. MR. WILSON: As indicated by my colleague, Your Honour, the balance of the charges against Vale are withdrawn by the crown. If the information could be so endorsed? THE COURT: Thank you. All other charges against Vale Canada Ltd. are marked withdrawn at the request of the Crown and as to Mr. Birnie? MR. WILSON: As to Mr. Birnie and that would be counts, I believe it’s counts 10 and following, 10 to 15. Your Honour, in course of discussions with counsel for Mr.

Birnie, the Crown was provided with a significant amount of new information, not previously available to it. In light of this information, it was determined by the Crown that there was no reasonable prospect of conviction and it was not in the public interest to continue with the prosecution against the individual and accordingly the charges against Mr. Birnie are withdrawn as well please. THE COURT: All right, thank you and taking into account, of course, the plea by Vale and... MR. WILSON: Yes. THE COURT: ...the sentence just imposed and your comments the remaining charges against Mr.

Birnie are marked withdrawn at the... MR. WILSON: Thank you. THE COURT: ...request of the Crown. That concludes the matter counsel? MR. HAMILTON: Yes, sir. MR. WILSON: Yes, sir.

THE COURT: Thank you for the excellent way in which the case was presented in court today. ... M A T T E R C O N C L U D E D