Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Tower Arctic, 2020 NUCJ 39

Date: 20201214
Docket: 11-19-123
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Tower Arctic

________________________________________________________________________

Before: Madam Justice Cooper

Counsel (Crown): L. Reynolds

Counsel (Accused): J. A. de Jong

Location Heard: Iqaluit, Nunavut

Date Heard: October 6, 2020
Matters: Sentencing for offences under ss. 4(1)(b), 12(b), and
22(1)(a) of the Safety Act, RSNWT (Nu) 1988, c S-1

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

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I. INTRODUCTION

[1] Tower Arctic has pleaded guilty to a charge pursuant to s. 4(1) of the
Safety Act, RSNWT (Nu) 1988, c S-1, which states:

4 (1) Every employer shall

(a) maintain his or her establishment in such a manner that the
health and safety of persons in the establishment are not
likely to be endangered;
(b) take all reasonable precautions and adopt and carry out all
reasonable techniques and procedures to ensure the health
and safety of every person in his or her establishment; …

II. FACTS

[2] On September 19, 2018, Steven Innuara started his first day on a job
with Tower Arctic in Pond Inlet, Nunavut. The company was making
signs for work sites by taking old metal barrels and cutting a square
hole in the top of the barrel into which a sign was placed.

[3] Mr. Innuara's first task at his new job was to accompany his
supervisor to the dump to retrieve some barrels. Two barrels were
scavenged from an area of the dump marked “hazardous materials”.
The two returned to the company's workshop known as the “sea can
shop”.

[4] Mr. Innuara's supervisor showed him how to cut a hole in the top of a
barrel using a handheld grinder. Before starting work on the second
barrel the supervisor was called away.

[5] Mr. Innuara understood that he was to proceed with cutting the
second barrel. While he was cutting the barrel, sparks from the
grinder ignited combustible gases in the barrel, causing an explosion.

[6] The force from the explosion blew the top off the barrel, hitting Mr.
Innuara in the face and breaking his face shield before continuing
upward and damaging the tent roof of the sea can shop. Mr. Innuara
was knocked to the ground. He was semi-conscious.
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[7] Other workers in the shop responded immediately. First aid was
administered to Mr. Innuara and a call was made for emergency
assistance. The RCMP responded and took Mr. Innuara to the Health
Centre. Mr. Innuara had several broken teeth, a laceration to his face
and chin, and singed hair. He was med-evaced to Iqaluit and on to
Ottawa. He was released from the hospital in Ottawa on September
24, 2018. He returned to work on October 2, 2018.

[8] Tower Arctic violated s. 4(1) of the Safety Act by: failing to perform a
hazard assessment before undertaking the work; failing to determine
what materials the barrels had contained; failing to decontaminate the
barrels; failing to provide Mr. Innuara with a safety orientation; and
failing to properly supervise Mr. Innuara.

III. POSITIONS OF THE PARTIES

[9] The parties jointly submit that an appropriate sentence is a fine in the
amount of $75,000, along with the victim of crime surcharge.

IV. THE LEGISLATION

[10] The maximum penalty for an offence by a corporate offender under

the Safety Act is a fine of up to $500,000, or imprisonment, or both (s.
22(2)).

[11] Fines payable under the Act are deposited into the Workers’
Protection Fund (s. 22(6)). The Workers’ Protection Fund is
established pursuant to s. 67 of the Workers' Compensation Act, SNu
2007, c 15 and is used to pay out compensation for injuries, diseases,
and deaths in the workplace and to pay the costs associated with
administering the workers’ compensation scheme.
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[12] Section 14(1) of the Victims of Crime Act, RSNWT (Nu) 1988, c 9,
establishes a Victims Assistance Fund which is used for:

(a) promotion and delivery of services to victims;

(b) research into services to victims and needs and concerns of
victims;
(c) distribution of information respecting services to victims and needs
and concerns of victims
(d) remuneration of members of the Committee for their services and
for reimbursement of reasonable expenses incurred on behalf of
the Committee; and
(e) any other purpose the Minister considers necessary for carrying
out the purposes of this Act.

[13] Section 2 of the Victims of Crime Regulations, NWT Reg (Nu) 013-92,
promulgated pursuant to the Victims of Crime Act, establishes a
surcharge of 15% of any fine be paid by an offender into the fund.

V. ANALYSIS

[14] Many activities and enterprises which are undertaken daily by both
individuals and organizations are regulated to ensure safety of the
public. Just as we expect and rely upon the government, through the
imposition of a licensing regime, to ensure that drivers on the road are
knowledgeable and capable, so too do we rely upon a multitude of
regulatory regimes to ensure such things as environmental protection
and food safety. As stated in R v Cotton Felts Ltd., [1982] OJ No 178,
2 CCC (3d) 287:

In our complex interdependent modern society such regulatory statutes

are accepted as essential in the public interest. They ensure standards
of conduct, performance and reliability by various economic groups
and make life tolerable for all. (at para 19)

[15] Safety in the workplace is such a regulated activity. All workers, most
of whom have no option but to participate in the wage economy and
place themselves in the workplace, are entitled to safe working
environment. It is the employer who must be responsible for providing
such an environment.
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[16] The sentencing of corporate offenders presents its own unique

challenges. As stated in General Scrap Iron & Metals Ltd., 2003
ABQB 22:

…the sanctioning of corporations themselves has the challenge that,

often, the entity being sanctioned is not the entity being spoken to by
the sentence disposition. The operating mind[s] of corporations are
human beings, but those individuals may not be the same on the date
of the offence as on the date of sanction. The configuration of the
ownership and management of the corporations may change fairly
easily. Similarly, the stigma ordinarily attached to individuals arising
from a conviction may be diluted or forgotten fairly easily through
corporate re-organization or name change. (at para 28)

[17] The jurisprudence clearly establishes deterrence as the paramount

principle in sentencing for public welfare offences. Traditionally,
deterrence has been achieved through the imposition of fines which
operate as more than a “licensing fee”; the fine must be such that the
individual offender as well as others participating in the regulated
activity, come to view compliance as more economically beneficial
than non-compliance.

[18] A broad view of the concept of deterrence should be taken. There is a

power imbalance between the worker and the employer. It is
important that sentences promote a workplace environment where the
employer leads by example, not a workplace that reluctantly tolerates
workers who insist upon strict compliance with safety protocols.
Sentencing corporate offenders should do more than punish them into
compliance. A sentencing regime that communicates societal
denunciation of the offending behaviour while recognizing and
encouraging corporate cultures that promote compliance will have
greater long-term benefits to society.

[19] Although it is not necessary for me to consider in the matter before

me, it may be that under certain circumstances, and assuming it is
available, a period of corporate probation might be appropriate
(Ninety North Construction & Development Ltd. 2005 NWTTC 3;
Ontario (Ministry of Labour) v Vixman Construction Ltd., 2020 ONCJ
64 at paras 38-39).

[20] Although framed in various ways in the cases, the sentencing of

corporate offenders should consider the following (R v United Keno
Hill Mines Ltd., [1980] YJ No 10, 10 CELR 43; R v General Scrap Iron
& Metals Ltd., 2003 ABQB 22):
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A. The circumstances and nature of the offence

[21] This should include a consideration of the harm done and the degree
of culpability of the corporate offender, which might be reflected in
efforts to comply with the regulatory regime, the duration of the
misconduct, the motivation for the misconduct, and any profits flowing
from the misconduct.

B. The terms and aims of the regulatory regime

[22] This should include a consideration of the objectives of the regulatory

regime, the level of regulatory involvement, the range of available
sanctions, and any impact the sentence might have on others.

C. The circumstances and attitude of the corporate offender

[23] This will involve a consideration of the size and wealth of the
corporate offender, steps that the offender took to rectify the
misconduct, any history of non-compliance, and the nature of the
corporation’s relationship with the regulating agency.

VI. APPLICATION OF THE SENTENCING PRINCIPLES

A. The circumstances and nature of the offence

[24] It is significant that Mr. Innuara suffered injuries because of the

incident. It is a matter of luck that there were no permanent injuries or
even death. Presumably, Mr. Innuara has not incurred expenses or
lost any income because of the incident. The offending behaviour
appears to have been the result of carelessness and thoughtlessness
rather than a deliberate disregard of clear safety protocols. Although it
appears the offending behaviour occurred on more than one
occasion, the conduct appears to be more a matter of opportunity and
convenience rather than the surreptitious breaching of safety
protocols to decrease costs and increase profits.

B. The terms and aims of the regulatory regime

[25] The goal of ensuring workplace safety is of the utmost importance.

The area is heavily regulated, particularly in undertakings that involve
construction and the use of equipment.
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C. The circumstances and attitude of the corporate offender

[26] Information as to the circumstances of the corporate offender is

important because it provides the court with the knowledge needed to
assess the impact of the potential sentence on the offender. If the
goal of sentencing corporate offenders is to impose a fine that is more
than a licence to offend but less than a financial burden that crushes
the offender, the court must know about the size, wealth, assets, and
revenues of the corporation. Clearly, a $50,000 fine on a small
corporation with a modest profit margin will be much more significant
than the same fine on a multinational corporation with annual profits in
the hundreds of millions.

[27] This concept is also important when considering the sentencing

principle of parity. Parity tells us that similarly situated offenders who
commit similar offences should be treated similarly. Parity requires not
uniformity of outcome, but consistency in the approach and analysis
that is applied in determining the outcome. In this regard counsel
have referred me to an unreported decision from Ontario called R v
Noront Steel Limited, Feb. 13, 2020, Sudbury Provincial Offences
Court. The facts are very similar to the matter before me. The fine
imposed was the same as that which counsel have recommended in
this matter. The maximum fine that was available for a corporate
offender under the applicable legislation was $1,500,000. However,
there is no information regarding the corporate offender. It is not clear
the extent to which, if any, counsel relied upon this case in reaching
their position on sentence.

[28] Similarly, I have not been provided with any information regarding the
nature of Tower Arctic Ltd. It is not possible for me to assess the
impact of the proposed fine on the corporate offender. I am reliant
upon counsel and must assume that they have made that assessment
and, for some reason, do not wish to provide the court with the
information.
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[29] The Supreme Court of Canada addressed this in R v Anthony-Cook,

2016 SCC 43, stating:

Crown and defence counsel are well placed to arrive at a joint

submission that reflects the interests of both the public and the accused
(Martin Committee Report, at p. 287). As a rule, they will be highly
knowledgeable about the circumstances of the offender and the
offence and the strengths and weaknesses of their respective positions.
The Crown is charged with representing the community’s interest in
seeing that justice is done (R. v. Power, 1994 CanLII 126 (SCC),
[1994] 1 S.C.R. 601, at p. 616). Defence counsel is required to act in
the accused’s best interests, which includes ensuring that the accused’s
plea is voluntary and informed (see, for example, Law Society of
British Columbia, Code of Professional Conduct for British Columbia
(online), rule 5.1-8). And both counsel are bound professionally and
ethically not to mislead the court (ibid., rule 2.1-2(c)). In short, they
are entirely capable of arriving at resolutions that are fair and
consistent with the public interest (Martin Committee Report, at p.
287). (at para 44)

[30] In the matter before me the prosecuting agency is well placed to

ensure the public interest is served by the joint submission. The
prosecuting agency works regularly with employers and is tasked with
enforcing safety protocols, delivering safety programs, and collecting,
assessing, and distributing workers compensation monies.

[31] I have been provided information that reflects on the attitude of the
corporate offender. The corporation does not have other convictions
for safety violations. Following the incident, the corporation undertook
immediate and significant steps to address safety issues and attitudes
in the workplace. The practice of repurposing steel barrels was
abolished. The supervisors who were responsible for the workplace at
the time of the incident either resigned or were replaced by individuals
with more safety experience. A new position of Safety Agent was
established. Reviews were undertaken not only of the circumstances
that led to the incident but also a broader review of the corporation’s
safety program. All supervisors undertook safety training. The
corporation worked with the WSCC in providing the training.
Essentially, the corporation undertook a corporation wide
reinvigoration of its safety culture.
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VII. CONCLUSION

[32] The joint submission on sentence is acceded to. There will be a fine
of $75,000 payable by March 31, 2021. There will be a victims of
crime surcharge of $11,250 also payable by March 31, 2021.

Dated at the City of Iqaluit this 14th day of December, 2020

___________________
Justice S. Cooper
Nunavut Court of Justice