COURT OF APPEAL FOR ONTARIO
DATE: 20000530
DOCKET: C33620
RE: HER MAJESTY THE QUEEN (Appellant) –and– INCO LIMITED (Respondent)
BEFORE: FINLAYSON, DOHERTY and O’CONNOR JJ.A.
COUNSEL: Bruce Arnott, for the appellant
Robert W. Little, for the respondent
HEARD: May 26, 2000
On appeal from the sentences imposed by Poupore J., sitting as a
summary conviction appeal judge, dated November 18, 1999.
E N D O R S E M E N T
[1] This is an appeal by the Crown pursuant to s.131 of the
Provincial Offences Act with leave of the Honourable Madam
Justice Weiler against the sentences imposed by the Honourable
Mr. Justice Poupore on November 18, 1999, sitting on appeal from
the sentence imposed on February 24, 1998 by the trial judge, the
Honourable Judge William F. Fitzgerald.
[2] After a five day trial, the respondent Inco had been
convicted of three offences under the Occupational Health and
Safety Act, R.S.O. 1990, c.O.1, namely failing to provide
information, instruction and supervision to a worker (count 1);
failing to maintain equipment in good condition (count 2); and
failing to leave a guard to protect workers from a moving part in
equipment (count 3). The trial judge imposed a fine of $250,000
for each count.
[3] The respondent Inco appealed against the convictions and
sentences to the Superior Court of Justice. Poupore J. allowed
the appeal against conviction with respect to count 1 and
dismissed the other two appeals. On the sentence appeal, he
reduced the fines to $125,000 for each count.
[4] We are in agreement that the quanta of sentences imposed by
the trial judge reveal no error in principle, particularly as
they address the factor of deterrence. The respondent Inco is
not only a leader in the mining field in Canada but the world.
Offences of this nature, which led to the death of an employee,
call for penalty that acts as a deterrent to this respondent and
as an example to the mining community as a whole.
[5] Any error in sentencing principle in this case was on the
part of the summary conviction appeal court judge. By listing
deterrence as but one of twelve factors he considered in his
reasons for reducing the sentences, Poupore J. diluted its
importance.
[6] Accordingly, the appeal is allowed and the fines of $250,000
are restored with respect to the two convictions that survived
the conviction appeal to the summary conviction appeal court.
Signed: “G.D. Finlayson J.A.”
“Doherty J.A.”
“Dennis O’Connor J.A.”