On September 4, 2013, the Ontario Court of Appeal sentenced
Metron Construction Corporation
("Metron") to pay a fine in the amount
of $750,000. At trial, Metron pled guilty to criminal negligence
causing death and received a fine of $200,000. The Court of Appeal
described this penalty as "manifestly unfit" as it found
the incident to be completely preventable.
The sentence was imposed as a result of Metron's role in the
deaths of four workers and serious injuries to another on Christmas
Eve, 2009. These workers had been restoring concrete balconies on a
high-rise building. This involved the use of a swing stage. Five
workers and the site supervisor were on the swing stage when it
collapsed fourteen floors. The normal, usual and safe practice was
for only two workers to be on a swing stage at any one time. There
were only two lifelines. A worker wearing one of the lifelines
survived uninjured. In addition, the swing stage bore no
identifying seals and had not been erected in accordance with
design drawings. The parties agreed that the deceased Metron site
supervisor failed to take reasonable steps to prevent bodily harm
and death. As he was a "senior officer" of Metron within
the meaning of the Criminal Code, Metron pled guilty to
criminal negligence causing death. The Crown appealed the trial
Decision and Reasons of the Court of Appeal
The Court of Appeal held that though the trial judge could
consider the sentencing range for provincial health and safety
offences, the imposition of a $200,000 fine (itself at the lower
end for provincial fatality cases) reflected "a failure to
appreciate the higher degree of moral blameworthiness and
gravity" associated with Metron's criminal conviction.
Section 718.1 of the Criminal Code states that "a
sentence must be proportionate to the gravity of the offence and
the degree of responsibility of the offender."
The Court further held that the trial judge erred in holding
that the corporation's ability to pay was determinative of
penalty for a Criminal Code offence, especially in this
case where the defendant's financial information was less than
persuasive. Although s.718.21(d) requires the Court to consider the
impact the sentence would have "...on the economic viability
of the organization and the continued employment of its
employees...", it is only one item in a list of factors.
The Court of Appeal also found that the fine of $200,000 was
disproportionate to the gravity of the offence and to the
responsibility of Metron, whose actions were a marked and
substantial departure from the standard expected of a reasonably
prudent person. The Court emphasized that corporate criminal
liability for criminal negligence in the Criminal Code is
not intended to duplicate, replace, or interfere with provincial
health and safety legislation. Rather, it is intended to provide
additional deterrence for morally blameworthy conduct that amounts
to a wanton and reckless disregard for the lives or safety of
others. There is a greater degree of moral blameworthiness and
gravity associated with a criminal conviction than that associated
with provincial legislation.
An appeal court is generally reluctant to interfere with trial
sentencing, but this decision sets out a clear analysis of the
principles of sentencing corporate criminal defendants under former
Bill C45. The dramatic increase in the penalty demonstrates the
appropriately high value and importance placed on workplace health
and safety in a criminal law context. When corporations are
convicted of a criminal offence, the gravity of the offence will
certainly be a key factor when assessing a sentence. A Court will
understandably aim for the sentence to be proportionate to the
reprehensible and repugnant nature of a corporation's
Quite apart from the potentially terrible consequences of an
accident, and the impact on a corporation's reputation and
goodwill, an important message for businesses is that the ability
(or inability) to pay a fine is not determinative of sentence under
the Criminal Code. The Court of Appeal held that,
"...the economic viability of a corporation is properly a
factor to be considered but it is not determinative" and
further that "...while bankruptcy [of the defendant
corporation] may be considered, it is not necessary
preclusive," of a penalty amount.
General deterrence and denunciation of conduct are at the core
of the sentencing principles under the Criminal Code. The
Court of Appeal has now said that the prospect of the defendant
corporation going bankrupt by the imposition of the penalty does
not automatically disqualify the penalty. And, as the Court of
Appeal pointed out, an order of discharge under the Bankruptcy
Act does not release the bankrupt corporation from any Court
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about your specific circumstances.
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