R. v. Detour Gold Corporation, 2017 ONCJ 954

CITATION: R. v. Detour Gold Corporation , 2017 ONCJ 954 DATE: August 31, 2017 Information Nos. 0511-998-164537 0511-998-5380 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. DETOUR GOLD CORPORATION REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE R. LALANDE On August 31, 2017, at COCHRANE, Ontario APPEARANCES:

D. Cox Counsel for the Crown N. Smitheman Counsel for Detour Gold Corporation LALANDE, J. (Orally): Counsel, I did my best to take advantage of the time that I had to complete my reasons. I have done so. As indicated, I would rather deliver these reasons orally now than place the case in any further delay. Thank you for your valuable submissions. I was impressed with the quality of the representations from both sides. Detour Gold Corporation entered a plea of guilt to a single count information alleging it committed the offence of criminal negligence causing the death of Denis Millette, contrary to

Section 220 (

b) and

Section 22.1 of the Criminal Code . Detour Gold is a Canadian intermediate gold producer. It owns and operates the Detour Mine, a large scale open pit located approximately 185 kilometres northeast of Cochrane. The mine has large gold reserves but not of the highest grade. It employs just under 1,000 people and became fully operational in 2013. The mine processes a large quantity of ore. Part of the processing includes the use of an InLine Leach Reactor referred to as the ILR. The ILR was installed in the Detour Gold processing plant in the spring of 2013.

Essentially, the ILR is an intensive cyanide reactor designed to leach high-grade ore including gold. The ILR is located in a locked enclosure under 24-hour video surveillance. Any employees entering the enclosure must be escorted by a member of the corporation, security staff, or they must have written authorization from the plant manager and the security manager. A leak developed in the ILR system in April 2015. Several work orders were made to deal with the leak in April and May of 2015. An ILR operator tried, unsuccessfully, to patch the leak with Denso tape. On June 3rd, 2015, Mr.

Millette was tasked to complete repairs to the ILR. He was given proper authorization to enter the enclosure. Tragically, he did not know the danger that he was putting himself in. Mr. Millette entered the enclosure at 11:23 a.m. and worked nonstop until 1:57 p.m. He was exposed to hazardous levels of cyanide which came into contact with his skin through his permeable cloth coveralls. Mr. Millette, in fact, had kneeled on the floor to do his work in tight confines near the area of the leak of the ILR’s expansion joint. The level of cyanide that Mr.

Millette was exposed to was exacerbated because the cyanide had found its way to the floor area where he was kneeling, from several sources within the enclosure. It was disclosed that Mr. Millette had not been properly trained on how to deal with cyanide as a hazardous material. He had no knowledge of the risk he was being exposed to. He was wearing normal work clothing and was only equipped with latex gloves. There was no SOP or standard operating system in existence on June 3rd , 2015, in regard to the maintenance work on the ILR. Had Mr.

Millette been properly equipped with clothing and gear, and had he been given proper training, he would not have been exposed to a fatal concentration of sodium cyanide. Even after Mr. Millette’s exposure to the cyanide he may not have succumbed had he been treated by emergency personnel who had been properly trained to deal with assisting persons exposed to cyanide. The physician’s assistant had only been on the job at Detour for two weeks, and had never been in the processing plant where the ILR was located and was unaware of any workings, dangers, or possible issues related to cyanide.

Moreover, no proper first aid supplies including rinses or a shower were available for use. There were no antidotes or oxygen kits available.

The cause of Mr. Millette’s symptoms was not readily identified by the emergency service providers. This is a direct result of the failure of Detour to ensure proper training. Even had they had had some idea initially of what was wrong with Mr. Millette, the tools to provide emergency relief to stabilize him were absent from the site. The agreed statement of facts state that Mr. Millette’s death was unnecessary and preventable. The defendant has accepted full responsibility and has, through its counsel, expressed sympathy on behalf of all directors, managers, and employees to Mr. Millette’s family and friends.

Mr. Millette died that day. He stopped breathing at 4:19 p.m. He was pronounced dead just after 4:42 p.m. The cause of death was determined to be "acute cyanide intoxication via skin absorption.” Mr. Millette was 52 years old. He had only been employed by Detour for three months. His occupation was that of an experienced millwright. He and his wife Sherry were about to celebrate their 25th wedding anniversary. He was the father of four adult children. He is survived by his wife, four children, one grandchild, both his parents, and five siblings. The court was provided with seven victim impact statements.

All statements, except one, were read in open court by Mr. Cox. Mr. Millette’s sister Pauline read her own statement. The court was able to fully appreciate the pain and anguish suffered by Mr. Millette’s family and especially his devoted wife Sherry. Sherry Millette expressed how her life now feels empty. She succinctly stated, "I now live in a house, not a home.” She said they were soulmates looking to spend the balance of their lives together. Her dreams have now been shattered. Trish and Aaron, two of Mr. Millette’s children, say they have been permanently and prematurely robbed of their father’s presence.

They speak of the void his death has left. Their grief continues and can almost be felt upon reading their statements. Children should not die before their parents. Mr. Millette’s death has seriously affected the lives of both his parents. They speak of their own loss and also of the devastating loss to grandchildren who will never get a chance to know their grandfather. Heartfelt statements were also made by Mr. Millette’s brother Rheal and sisters Pauline and Denise. They are devastated.

They speak of lack of sleep, anguish for not being there to console their brother when he died, and helplessness at having to go through life dealing with thoughts of his unnecessary death. I also, as at today, have the benefit of a victim impact statement from Steven Millette. He is one of the adult children. It took a lot of effort for him to write his victim impact statement. It is most meaningful. It sets out the relationship that his parents had, from his viewpoint.

He speaks about their aspirations and plans, the plans they had been looking forward to, the plans that would include some alone time after having raised four children. To Steve, the loss of his father has seriously delayed his personal ability to move forward. He is struggling but, hopefully in his dad’s image he will be able to move ahead with his life. At the conclusion of his letter, he said, "Detour cannot bring back my dad but maybe they can do something for my mom." Generally, Mr. Millette was a large and irreplaceable presence in the eyes of his family.

The victim impact statements demonstrate the love his family had toward him. Their lives will forever be different. They will continue to think about him and cling to the memories that he left behind. The corporation has no prior record under the Criminal Code or for violations under the Occupational Health and Safety Act. While the corporation has only been actively mining since 2013 it has, according to its counsel, attained safety status recognition through the auspices of WSIB.

In other words, aside from the disastrous negligence giving rise to this incident, it has been recognized as a corporation which had, in its operation, made some commitment toward reducing accidents and injuries. For that reason, it was about to qualify for a significant premium reduction for its insurance coverages. In terms of insurance premiums Detour has felt some financial impact further to its conduct relating to this matter. Its insurance premiums shall now be increasing by just under $1 million plus it has lost the reduction in its premium of an equivalent value it was just

about to qualify for. Without advancing an excuse or justification for its conduct, Detour admits having misapplied its focus toward safety. It focused on the risks associated with possible cyanide gas leakage. There had never been, according to Detour’s counsel, a history known to the corporation relating to liquid cyanide poisoning. Consequently, the lax approach of sorts, prevailed. As stated, the corporation engaged in acts of omission in failing to properly focus and take action on risks involving cyanide in a non​gas form, a substance they knew to be pivotal to the operation of the ILR.

The corporation knows that notwithstanding its explanation, it should have dealt with the potential risks at hand. In hindsight, the corporation’s counsel advises that it would have done things differently. Detour has now undertaken to provide comprehensive training programs for employees including annual refresher programs dealing with cyanide awareness. Further, oxygen kits and antidotes, including proper on​site training, have been put in place.

Detour indicated its commitment to not henceforth take training for medical service personnel for granted, and will ensure that all physician assistants and emergency health care providers are properly trained. Detour has changed its access authorization form to include that workers wear PPE, namely, proper clothing, as a pre-condition to entering the ILR. Detour has implemented a new maintenance program, and since July 12th, 2017 has become a signatory to the ICMI, the International Cyanide Management Institute.

In Detour’s submission, all necessary measures and processes have been taken to reduce the likelihood of this type of incident ever happening again. This, according to Detour’s counsel, may be recognized as one of the key factors under

Section 718.21 (

j) of the Criminal Code . There is no dispute about the importance of the plea of guilt in these circumstances. A lengthy trial has been avoided. It is an important mitigating factor, not only because resources shall be saved given the expected time a full trial would take, but also because family members shall, at least insofar as the charges against Detour are concerned, be avoiding dealing with more turmoil and the painstaking challenge of living with uncertainty while waiting for the final outcome. Detour has presented itself as a good corporate citizen.

Although a young corporation, dealing with significant upfront debt, it has maintained a presence of some financial generosity in the eyes of the community in the area. Detour’s contribution to the Timmins hospital of 1.5 million is impressive, as well as its charitable donations to a variety of meritorious recipients since 2012 totally approximately $760,000. Criminal negligence is one of the most serious offences in the Criminal Code . Criminal negligence causing death is at the high end of the scale of moral blameworthiness. The seriousness of the offence is projected in the penalty provisions.

The maximum penalty for an individual is life imprisonment. In terms of a corporation the quantum of a fine, in contrast to the OHSA, is unlimited. In imposing a proper sentence, the court remains mindful that it must take into account the factors set out in

Section 718.21 of the Criminal Code . Not all factors set out in

Section 718.21 are, in these circumstances, relevant. Mr. Cox noted that of the 10 factors, 6 in these circumstances would not be relevant.

Section 718.21 (

a) may be marginally relevant depending on how the facts are interpreted. For the purpose of these reasons,

Section 718.21 (

a) is not being relied upon. Counsel in their submissions touched upon those factors which are to be considered. I agree with their submissions. Consideration of those factors has been taken into account as highlighted throughout these reasons. It may be important to note that Detour has not in any way attempted to conceal its assets or wealth; to the contrary, all relevant information has been made readily available.

Detour has expressed a plan to make restitution by compensating Mr. Millette’s spouse Sherry. It has provided a calculation based on lost income, which, if accepted, would result in her receiving a net sum of $640,000 plus $165,333 in retroactive monies, for a total of $805,333. Initially, the plan was to provide payment over a 10-year period payable monthly. Detour has now expressed its willingness to accommodate payment forthwith in full in order to accommodate Mrs.

Millette’s preference to not have to deal with payments which may result in a constant source of reminder to her about her husband’s employment with Detour and his unnecessary death. Detour is asking that its proposal toward restitution be taken into account by the court in its overall assessment of an appropriate disposition. This would be in accordance with

Section 718.2l(

i) of the Criminal Code . The case of Metron Construction which was referred to by both counsel, was decided by the Ontario Court of Appeal on September 4th, 2013. Metron was hired to replace some balconies onto highrise buildings. An outside platform designed to carry two persons only was used to try to lower six persons to the ground from the 14th floor of one of the buildings. The platform under too much weight collapsed. Four persons fell to their death. Only two lifelines were available. The corporation pleaded guilty.to criminal negligence causing death. The corporation was fined $200,000 at trial.

The Court of Appeal concluded that a fine of $750,000 was more appropriate regardless of the corporation’s ability to pay. The Court of Appeal spelled out that the original fine of $200,000 reflected a failure to appreciate the high degree of moral blameworthiness and gravity associated with a criminal negligence conviction and the principle of proportionality under

Section 718.1 of the Criminal Code . Crown counsel has suggested a monetary fine of $3 million which, if coupled with restitution and surtax would approach a total payment to the corporation of less than $5 million. I agree with Mr. Cox that, conceptually, the facts in this case are not difficult to understand. There was an absence of any proper maintenance protocol in place. Maintenance could have involved simple measures such as flushing and washing. It may have prevented Mr. Millette from being exposed. As earlier indicated, there was no proper PPE. Had Mr.

Millette been equipped with proper gear, it is unlikely that his skin would have been exposed, causing him to absorb cyanide. Finally, the absence of properly trained emergency response persons, the absence of an antidote and shower facilities were all noted as key features which contributed to Mr. Millette’s death or his inability to recover. All of this, according to Mr. Cox, translates into a complete absence of precautions which should have been in place and may have saved Mr. Millette’s life. The corporation, in his submission, is solely to blame.

Justice Hamilton presides in the Provincial Court at Surrey, British Columbia. I have reviewed certain comments that he made in the Stave Lake Quarries Inc. decision rendered on October the 27th, 2016. At paragraph 46 of that decision he states the following: "The primary sentencing principle to consider in a case such as this is general deterrence. The penalty imposed by the court must send a strong message to companies who operate unsafe businesses that if those working conditions result in harm to, or the death of, an employee, the consequences for the company will be severe.

The fine imposed must be so significant that it cannot be considered simply as a cost of doing business. Other important sentencing principles to keep in mind are specific deterrence and denunciation. The guilty corporation must be stopped from ever committing the crime again, and the sentence should send the message that society cannot tolerate corporations that employ workers in working conditions that are so unsafe that they can lead to bodily harm or death." I also agree with Justice Hamilton that it is difficult to measure and compare criminal negligence from one case to another.

I remain mindful that Detour is a viable corporation. It generates approximately $440,000 per day in gold production. It employs between 900 and 1,000 employees. It has reduced its annual losses significantly from 163 million in 2015 to 6.9 million, approximately, in 2016. According to its financial controller, Mr. Heredia, it is working its way toward making profitable returns within five to seven or eight years. Although the corporation is in debt, the debt it is under is understandable. It has incurred heavy start-up costs.

The company has not yet realized a profit or made a dividend payment, but it is not, when all is taken into account, in a state of financial frailty. The investors in the company obviously have faith in its efforts and its production because several share instruments have recently been successfully marketed in order to secure more operating capital.

In imposing a proper penalty I would like those present, especially the family, to know that no sentence imposed by a court of law will extinguish the loss and heartbreak felt by Mr. Millette’s family. There is no way to turn back the clock and undo the tragic circumstances which led to Mr. Millette’s untimely death. Nothing done here today will sufficiently assuage the void in the lives of those who loved him and who cherished his presence in their lives. If I haven’t said so, I wish to thank Mr. Millette’s wife and the family for the excellent way they portrayed him in their victim impact statements.

To say that his loss has created a perpetual void in their hearts is an understatement. The contribution he made in the lives of his family and others remains immense. Having said that, I have taken the time to review the Metron case in some detail. A fine similar or equal to the fine imposed in the Metron Construction case would not, in these circumstances, be satisfactory. The fine must be sufficient enough to send a strong message in accordance with the principles of general deterrence. The fine must also be significant enough to not be considered as a simple cost of doing business.

I wish to thank counsel for their remarks on the issue of the court possibly making a probation or restitution order. We are today in a public forum and the decision of the court is public. There is no need, in these circumstances, for the court to make a probation order. I realize that in making a probation order the corporation may be made to publicize its wrongdoing and the results of this case. I do, however, take into account the fact that this case has been going on since 2015 and in large

part is already quite public. I must also take into account the absence of any past violations by the corporation together with the progress it has made. Generally speaking, I am satisfied that the word will get out there, so to speak, sufficiently for the public and the industry to understand what has occurred. In terms of restitution, in my view, a restitution order would be the best vehicle. In that context, and factoring in the high level of moral blameworthiness, as well as my previous comments, and including all mitigating factors, I find the following to be a proper sentence.

Firstly, there will be a restitution order in favour of Sherry Millette in the amount of $805,333 payable within 60 days. There will be a monetary fine against the defendant Detour Gold Corporation in the amount of $1.4 million. The applicable surcharge will be significant in view of the large fine. The court has taken into account the total financial picture. The court has factored in restitution as a mitigating factor. At the end of the day, the financial consequence to the corporation will, from today’s proceeding, total an amount in excess of $2.5 million.

Madam Clerk, I’m instructing you to prepare the restitution order. The restitution order, counsel, will be made payable to the Ontario Court of Justice with Mrs. Sherry Millette as the payee. The company, therefore, will make payment to the court. The court will transfer the funds to Mrs. Sherry Millette. How much time to pay the fine? MR. SMITHEMAN: I’d ask for 60 days so that we can .... THE COURT: Sixty days within which to pay the monetary fine and the victim fine surcharge. Counsel, if that concludes the matter, thank you again. I appreciate the way that you each handled the case.

Sometimes the result may not always be what is expected, but I have, in considering the total circumstances, weighed all relevant elements in order to arrive at the decision. **********