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Prosecutors treating regulatory matters more harshly

|Written By Robert Todd

The Ministry of Labour’s decision to continue with its appeal of a sentence under the Occupational Health and Safety Act - even after the offender finished serving his sentence - shows that the ministry is pressing hard for jail time in such regulatory matters, says an employment and labour lawyer.

‘The fact that the ministry would appeal this decision - it’s one thing for them to have asked for jail and not received it. But then to appeal a decision I think says something,’ says Goldie Bassi.

Goldie Bassi, a lawyer with Gowling Lafleur Henderson LLP who represented the respondent in the Superior Court case R. v. Pasquale Di Franco, says prosecutors are treating regulatory matters more harshly.

“The fact that the ministry would appeal this decision - it’s one thing for them to have asked for jail and not received it. But then to appeal a decision I think says something. I think they’re looking at these at a different level.”

Di Franco pleaded guilty to two offences under the OHSA in November 2005 after a pair of workers under his control as supervisor of a Toronto construction site fell from the 16th floor of an elevator shaft and died, according to a March 7 endorsement by Superior Court Justice Robert Clark. Di Franco was fined $30,000 and received one year of probation.

Two corporations also were charged in the incident, receiving fines of $280,000 and $300,000 respectively.

Ministry of Labour lawyer David McCaskill argued at appeal that the trial judge should have imposed a custodial sentence. However, he conceded that delays in perfecting the appeal led to Di Franco having already served his sentence, and that it was unlikely the court would impose a jail term at that stage.

But McCaskill felt the court set an important precedent in imposing a strong, deterrent sentence.

Clark noted in his decision that fewer than 24 of the thousands of OHSA prosecutions have resulted in imprisonment for an individual.

He also found that the trial judge had properly considered the need for general deterrence, the impact on the victims’ families, and mitigating factors, such as the fact that Di Franco had no record and showed remorse by quickly pleading guilty.

Clark dismissed the appeal, writing, “This was not a case where imprisonment was the only fit outcome.”

The judge also expressed his reluctance to impose a custodial sentence at such a late date.

Bassi says the Ministry of Labour’s approach to the case demonstrates that it is becoming “very aggressive” in its prosecutions.

“They say it’s all about general deterrence; they really want to send the message out that they’re serious about enforcing the OHSA,” says Bassi. “With the last minister of Labour, there was a real push on really enforcing the OHSA strenuously.”

The ministry at that time hired over 200 inspectors and a number of lawyers to their legal-services branch, she adds.

“They’re just taking a much harder approach to this, and it is seriously. I think there’s almost a fatality a day in Ontario from the workplace.”

While jail terms remain rare in regulatory matters, Bassi says some types of cases seem to attract such punishments.

“We have noticed, though, in the last two years, that short periods of jail are being handed out,” she says, adding those sentences have normally been reserved for cases in which individuals have been charged with obstruction by hampering inspections.

In the case of Di Franco, Bassi says the Superior Court rightly backed the trend against jail terms in regulatory matters.

“This was a serious case, but he stepped up, he took responsibility, he was there for every court appearance,” even though he’s not mandated to do so, she says, adding the $30,000 fine imposed on Di Franco was “significant.”

“To impose jail on somebody now, three years after the incident . . . would have been entirely unfair. What judge Clark said was that there’s lots of different ways of achieving deterrence, and in this case, jail wasn’t the only way.”

McCaskill says the ministry felt the Di Franco case was a “particularly egregious” one.

“Two workers were killed,” he says. “We thought that Mr. Di Franco’s personal responsibility was such that a somewhat more significant penalty than merely a monetary policy was called for.”

McCaskill compares these types of cases to drunk-driving incidents, in which those responsible for a death face jail time. He notes that regulatory matters fall somewhere in between criminal and civil matters in the justice system.

“We’re dealing particularly with a vulnerable class of people - workers on job sites. Often they’re at the mercy of the employer, they’re directed to do what they do by the supervisors . . . and if those supervisors acting as the proxy of the company don’t do the job with an eye, first and foremost, on worker safety, then there has to be a strong message sent out that we will protect workers.”

McCaskill says general deterrence is the best way to protect workers under the OHSA.

“What we want to do is make sure that employers . . . understand that they have, as the courts have defined it, a very strict and rigid duty for the protection of people working under their control. If they fail to live up to the protections that the laws impose, they will be prosecuted and we will seek penalties that reflect the severity of the situation.”

But McCaskill says the ministry has no policy in terms of seeking jail terms.

“Every case is on its own merits,” he says. “We approach a case just as criminal Crown attorneys would. We look at each case on its merits and determine what the appropriate sentence, in our considered, educated view, is.”

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