Her Majesty the Queen in Right of Ontario (Ministry of Labour) v. New Mex Canada Inc. et al.

[Indexed as: Ontario (Ministry of Labour) v. New Mex Canada Inc.]

Ontario Reports

Court of Appeal for Ontario

MacPherson, B.W. Miller and Paciocco JJ.A.

January 18, 2019

144 O.R. (3d) 673 | 2019 ONCA 30

Case Summary

Criminal law — Provincial offences — Sentencing — Moral blameworthiness relevant factor in sentencing for regulatory offences — Sentencing judge not precluded from imposing incarceration for regulatory offences merely because sentences of incarceration are rarely imposed.

Employment — Occupational health and safety — Offences — Sentencing — Employer knowingly having epileptic employee work on elevated order picker without fall protection — Employee falling to his death — Company and its two directors pleading guilty to offences under Occupational Health and Safety Act — Defendants having no prior convictions — Sentencing judge fining company $250,000 and imposing 25-day intermittent sentences and 12 months' probation on directors — Summary conviction appeal judge reducing sentences to $50,000 fine for company and fines of $15,000 for each director — Minister's appeal dismissed — Occupational Health and Safety Act, R.S.O. 1990, c. O.1.

Facts

New Mex Canada Inc. and its two directors pleaded guilty to offences under the Occupational Health and Safety Act after an employee, who was known to the defendants to be epileptic, fell to his death while working on an elevated order picker without fall protection. New Mex Inc. was a small privately held company, and the two directors also worked as supervisors. The defendants had no prior convictions. The sentencing judge fined New Mex Inc. $250,000 ($125,000 on each of two counts) and sentenced the two directors to 25 days' incarceration, to be served intermittently, followed by 12 months' probation. The summary conviction appeal court judge allowed the defendants' appeal and varied the sentences to a total fine of $50,000 for New Mex Inc. and a fine of $15,000 for each director. The minister appealed.

Held

The appeal should be dismissed.

The appeal judge applied the appropriate standard of review. He recognized that a sentence must be demonstrably unfit for an appellate court to intervene in the absence of an error of law or an error in principle that had an impact on the sentence. That was the standard he applied when finding that the New Mex Inc. fine and the incarceration imposed on the directors was a substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes.

As the appeal judge found, the sentencing judge erred in imposing jail terms on the directors because they would also be paying New Mex Inc.'s fine, so that imposing personal fines on them would cause more financial hardship. The hardship of a fine is not a proper basis for imprisonment.

The appeal judge incorrectly adopted as a sentencing principle the proposition that regulatory offences are concerned with attaining public policy objectives as opposed to punishing moral blameworthiness. Moral blameworthiness may be a relevant sentencing consideration for regulatory offences. That conclusion follows from the application of the fundamental sentencing principle of proportionality, which holds that a sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. The appeal judge's error was not rendered harmless by his later recognition that incarceration is more appropriate for wilful offenders or repeat offenders than for first offenders, as he went on, incorrectly, to discount the "very concerning lack of care for their employees" that the defendants exhibited, on the basis that it was a moral blameworthiness consideration being offered in a regulatory case.

The appeal judge should not have used the rarity of sentences of incarceration as a reason not to impose one. Where a sentencing judge determines that incarceration is required to achieve the goals of sentencing, the judge is not forestalled from imposing a sentence of incarceration for a regulatory offence simply because incarceration for regulatory offences is uncommon.

A fine imposed on a corporation should not be treated as a fine imposed on a director. A director is under no obligation to pay the corporate fine. The appeal judge erred by relying on the consideration that the directors would pay New Mex Inc.'s fine in determining the quantum of the fines he imposed on the directors.

The appeal judge erred to the extent that he relied on the defendants' compliance with all required orders issued after the accident as a mitigating factor.

The appeal judge did not err in finding that the fine imposed on New Mex Inc. by the sentencing justice was demonstrably unfit. The fine did not comply with the parity principle, as it was very, very high in relation to fines imposed on similarly situated defendants in similar cases. More significantly, the fine was markedly more than would have been required to achieve the objectives of general and specific deterrence in light of the fact that New Mex Inc. was a small, financially precarious company.

Had the sentencing judge not erred in law by choosing to incarcerate the directors because of the financial burden of a fine, the appeal judge would have erred in finding the sentences of incarceration to be demonstrably unfit. However, fresh evidence was admitted that the health of one of the directors had declined, and that the other director was a primary caregiver for his elderly parents. While those circumstances alone would not disqualify a sentence of incarceration, it had been almost six years from the incident and the fallout from the incident had been financially difficult for the directors. Accordingly, the sentences of incarceration should not be reinstated. While the $15,000 fines imposed by the appeal judge were lenient, they were not demonstrably unfit. The $50,000 fine imposed by the appeal judge on New Mex Inc. was also not demonstrably unfit.

Overview

[1] On January 16, 2013, Mr. Shangar Singh fell to his death while attempting to retrieve merchandise in a Brampton, Ontario furniture warehouse where he worked. This led to charges under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ("OHSA") against Mr. Singh's employer, New Mex Canada Inc. ("New Mex"), and two New Mex directors, Mr. Baldev Purba and Mr. Rajinder Saini (collectively, the "defendants"). The circumstances of Mr. Singh's death would later be described by the sentencing Justice of the Peace (the "sentencing justice") as showing "the highest level of negligence" on the part of the defendants. The description is apt.

[2] Mr. Singh, who was known by his employer to be epileptic and to have fainted twice before at work, was assigned to work on an elevated order picker -- a forklift with an open-sided, makeshift, polished steel, non-slip-resistant platform that sagged at the unsupported end. Workers would stand on the platform, less than four feet wide, while they were elevated to work at heights. The order picker was not equipped with fall protection equipment, and Mr. Singh was wearing dress shoes. He was not equipped with a safety harness or tether. As with his co-workers, Mr. Singh had received no health or safety training.

[3] The order picker was at a height of approximately 12 feet when Mr. Singh fell. He died at the scene. A pathologist confirmed that the cause of death was blunt force craniocerebral trauma. There were no fractures or other injuries, suggesting that Mr. Singh fell directly onto his head without making any effort to protect himself. The pathologist inferred that he fell while unconscious and that a seizure precipitated the fall.

[4] In the face of this tragic and disturbing incident, multiple OHSA charges were laid against New Mex as employer, and Mr. Purba and Mr. Saini as directors. Mr. Purba and Mr. Saini are the sole directors of New Mex, and the sole supervisors operating this small, 12-employee business. Each of the three defendants pleaded guilty to two offences.

[5] Based on its pleas, New Mex was found guilty of:

• failing, as an employer, to provide information, instruction and supervision to protect the health or safety of Mr. Singh, relating to fall protection and working from a height, contrary to OHSA, s. 25(2)(a); and

• failing, as an employer, to ensure that measures and procedures prescribed by s. 85(a) of Industrial Establishments, R.R.O. 1990, Reg. 851, as amended, were carried out at the workplace, contrary to OHSA, s. 25(1)(c).

[6] Mr. Purba and Mr. Saini were found guilty of:

• failing, as directors, to take all reasonable care to ensure that New Mex complied with OHSA, s. 25(2)(a) as required by OHSA, s. 32(a); and

• failing, as directors, to take all reasonable care to ensure that New Mex complied with s. 85(a) of Industrial Establishments, R.R.O. 1990, Reg. 851, as amended, also contrary to OHSA, s. 32(a).

[7] The sentencing justice, who accepted the pleas, imposed a total fine on New Mex of $250,000: $125,000 per count. The Crown had asked for a total fine of $100,000 or higher. The sentencing justice imposed 25-day intermittent sentences of incarceration and 12 months of probation on both Mr. Purba and Mr. Saini.

[8] All three defendants appealed their sentences to a provincial offences appeal court. New Mex appealed the quantum of the fine. Mr. Purba and Mr. Saini appealed their sentences of incarceration but not the probationary orders.

[9] The provincial offences appeal court judge (the "appeal judge") allowed all three appeals and varied the sentences. He reduced New Mex's fine to a total of $50,000: $25,000 per count. He imposed $15,000 in total fines on both Mr. Purba and Mr. Saini: $7,500 per count.

[10] The Crown, seeking a restoration of the sentences imposed at first instance, sought leave to appeal the appeal judge's decision to this court. A single judge of this court granted leave to appeal, in part because of the need for guidance in sentencing regulatory offenders, particularly for sentences of incarceration. We have now heard the appeal. While there are issues with the appeal judge's decision, I would not disturb the result. I would therefore dismiss the appeal.

The Sentencing Justice's Sentences

[11] Crown counsel asked the sentencing justice to impose a fine on New Mex of "at least $100,000.00". She said "[h]ow much over $100,000.00 may depend on what my friend [defence counsel] has to tell you about the company".

[12] She asked that Mr. Purba and Mr. Saini be imprisoned for between 15 and 30 days each.

[13] In her sentencing submissions, Crown counsel did not rely on any prior OHSA convictions. She emphasized the need for general deterrence and gave focus to the serious consequences and disturbing details of the accident, including the disregard by Mr. Purba and Mr. Saini of their obligations to ensure workplace safety. They had received a copy of the OHSA but misplaced it without ever reading it.

[14] Defence counsel representing all three defendants responded:

Normally, where we can agree on a joint submission to fine, we do that but in this case since the request was for jail time, we obviously could not agree to that and our submissions will be with respect to why it should not be jail time in this case.

[15] Defence counsel argued that incarceration was not appropriate in this case. The defendants were first offenders who demonstrated remorse by taking a leading role in funeral arrangements and assisting workers with the tragedy. She urged that specific deterrence was not required for Mr. Purba and Mr. Saini because this incident had already been costly enough to them to send the required message. New Mex lost orders, had to shut down temporarily, and had shrunk to two employees.

[16] She argued further that this case was unlike those few cases where sentences of incarceration had been imposed for OHSA offences. She argued that, as a matter of principle, incarceration should be used only when other penalties would not achieve the goals of sentencing. She argued that while incarceration is not reserved for the worst cases, it is customarily reserved to cases where there is repeat offending, no guilty plea and no remorse.

[17] With respect to the fine to be imposed on New Mex, defence counsel relied on R. v. Cotton Felts Ltd., and emphasized the smallness of the business and its financial performance -- a profit of $101,000 in 2012 and a loss of $700,000 in 2013. She noted that in order to keep the business afloat after the accident, Mr. Purba and Mr. Saini had to borrow money and make personal loans.

[18] In support of the fines she was seeking for Mr. Purba and Mr. Saini, defence counsel asked the sentencing justice to bear in mind that the men had extremely modest reported incomes -- in 2013, $18,085 for Mr. Purba and $21,943 for Mr. Saini. She advised the sentencing justice that the men were not drawing a salary at the time of sentencing. Finally, she urged that Mr. Purba and Mr. Saini would be paying the New Mex fine themselves, "[s]o, in every sense of the word, it's a double fine".

[19] In imposing the sentences, the sentencing justice recognized that the defendants were first offenders who had accepted responsibility and demonstrated remorse. She said she gave "great thought and consideration" to the financial status of the defendants, including that Mr. Purba and Mr. Saini would have to satisfy the corporate fine. She said that she applied the principles identified by this court in Cotton Felts. She then placed significance in her reasons on two factors: the failure by Mr. Purba and Mr. Saini to educate themselves about their duties and responsibilities relating to workplace safety; and the lack of common sense and unacceptable conduct in having a man, known to be epileptic, work at height on an elevated order picker without any fall protection equipment, calling this "the highest level of negligence".

[20] She expressed hope that the sentences she would impose would act as both a specific and general deterrent, and that they would "send a message to all companies, employers, directors, [and] supervisors of the specific need for the safety of their employees".

[21] She then said, "[w]hen I consider the totality of the facts, the plea, the submissions, the absence of any record, the relevant case law that is provided, regarding New Mex Canada Inc., a fine of $250,000.00 will be imposed". She went on to clarify that this fine consisted of $125,000 fines imposed on each of the two counts to which New Mex had pleaded guilty.

[22] She said with respect to Mr. Purba and Mr. Saini:

I appreciate the financial circumstances of each of these defendants as outlined by Miss Fields. Having considered the totality regarding each, the facts, the plea, the absence of a record, the submissions made by both the Crown and the defence and the case law, as I indicated earlier, that was provided; in light of those circumstances, I find that to impose a fine upon them personally would only cause more financial hardship. However again, I reiterate the need for this court to impose a sentence that deals with general deterrence that brings home to other companies their responsibility, the seriousness of this type of situation. It is unfortunate that we have the loss of the life of Mr. Singh in relation to this matter when it could so easily have been avoided. I do find that a period of incarceration is warranted when considering the totality of the facts in this case. I have given great thought to the submissions of Miss Fields regarding the further difficulties a jail sentence would impose on each of these gentlemen as well as to the company and as a result, I have decided that it would be an intermittent sentence to assist them in carrying on their day-to-day life, their assistance with their family, their extended family, the operation of the company. Each will be [sentenced] to a period of 25 days to be served intermittently plus a period of probation for 12 months.

The Appeal Judge's Decision

[23] The appeal judge varied the fine imposed on New Mex, and the sentences of incarceration imposed on Mr. Purba and Mr. Saini.

[24] He noted in doing so that in sentencing for OHSA offences, "[d]eterrence is the cardinal principle". He stated, however, that deterrence operates differently for regulatory offences because "[r]egulatory offences are concerned with attaining public policy objectives as opposed to punishing moral blameworthiness", citing R. v. Di Franco.

[25] He emphasized that imprisonment is "unusual", seldom employed and "[t]o a very large extent the enforcement of such statutes is achieved by fines imposed on offending corporations": Cotton Felts. He cited a passage from Di Franco, that amendments to the OHSA sentencing provisions elevating the maximum fine that could be imposed on a corporation, but leaving the maximum term of imprisonment alone, reinforce the primacy of fines over incarceration for regulatory offences.

[26] The appeal judge also relied upon the proposition that in the few regulatory cases where incarceration has been imposed, "those dispositions were for conduct that was willful as opposed to merely negligent": Di Franco.

[27] He then considered six decisions where the death of a worker had occurred. In only one of those cases was a sentence of incarceration imposed. In R. v. Roofing Medics Ltd., a director was incarcerated. He was working in the roofing industry where casualties from falls are frequent and where there was evidence that fines were not serving to deter participants. Moreover, the director had driven the victim to the hospital rather than calling an ambulance to the work site, and then claimed that the victim had fallen from a ladder while helping out as a friend at the director's home installing roofing.

[28] The appeal judge affirmed the application to regulatory offences of the criminal law principle articulated in R. v. Priest, that for first offenders courts should explore other dispositions before imposing a custodial sentence.

[29] He then applied the factors identified by this court in Cotton Felts, for quantifying fines, including (1) the size of the company involved; (2) the scope of the economic activity in issue; (3) the extent of actual and potential harm to the public; (4) the maximum penalty prescribed by statute; and (5) the need to enforce regulatory standards by deterrence.

[30] He then examined the mitigating and aggravating factors before concluding that the sentencing justice erred in the sentences she imposed.

[31] Specifically, the appeal judge held that based on the jurisprudence cited, the sentences imposed by the sentencing justice were "significantly out of the range of sentences regularly imposed by the courts for these types of offences and for these types of offenders". He found that since the sentences imposed departed substantially and markedly from appropriate sentences, the sentences imposed were "demonstrably unfit".

[32] The appeal judge also found that the sentencing justice erred in principle. She did not "pay sufficient heed to the fact that the courts have repeatedly found that significant fines act as a deterrent in these types of cases, and that sentences of incarceration are more appropriate for defendants with prior convictions for whom fines have not had a deterrent effect". While he agreed with the sentencing justice that Mr. Purba and Mr. Saini demonstrated a very concerning lack of care for their employees, he downplayed the significance of this, reaffirming that "[r]egulatory offences are concerned with attaining public policy objectives as opposed to punishing moral blameworthiness".

[33] Finally, he found that the sentencing justice erred by imposing sentences of incarceration on Mr. Purba and Mr. Saini because fines would cause them "more financial hardship".

[34] He therefore varied the appealed sentences, imposing the fines described above: $50,000 on New Mex, consisting of $25,000 per count; and $15,000 on each of Mr. Purba and Mr. Saini, consisting of $7,500 per count.

Grounds of Appeal

[35] The Crown made the following arguments before us:

• the appeal judge failed to respect the principles that apply in a sentence appeal;

• the appeal judge erred by "effectively holding that sentences of incarceration are per se 'significantly outside of the range' and 'demonstrably unfit' for first time offenders convicted of regulatory offences";

• the appeal judge erred by "effectively holding that for regulatory offences sentencing is not concerned with punishing the moral blameworthiness of the offender and offence, and that sentences of incarceration are reserved for conduct that is willful, as opposed to 'merely negligent' and for where the defendant is a repeat offender for whom fines have not had a deterrent effect";

• the appeal judge erred by treating amendments to the OHSA that altered the maximum fine that could be imposed on a corporation, but not the maximum period of incarceration, as confirming the priority that is to be given to fines in sentencing for OHSA offences; and

• the appeal judge erred in applying the principles of sentencing that apply where corporations are closely held.

[36] In my view, some of the positions attributed to the appeal judge in these arguments are overstated. I do not read the appeal judge to be advancing the proposition that incarceration is per se significantly outside of the appropriate range and demonstrably unfit for first offenders convicted of regulatory offences. His position was that dispositions other than incarceration are to be considered for first offenders, before imposing custodial sentences. He did not say that incarceration is reserved for conduct that is wilful as opposed to merely negligent, or for repeat offenders who have not been deterred by fines. His position was that the sentencing justice did not pay sufficient heed to the absence of such factors in this case.

[37] As I see it, placing them in an analytically convenient order, the issues to be decided on appeal can be more profitably considered by asking:

(A) whether the appeal judge erred by misapplying the standard of review in a sentencing appeal;

(B) whether the appeal judge erred in finding that the sentencing justice erred in imposing sentences of incarceration because fines would be unduly harsh for Mr. Purba and Mr. Saini;

(C) whether the appeal judge erred in identifying the principles of sentencing for regulatory offences, specifically:

• the immateriality of moral blameworthiness in sentencing for regulatory offences;
• restraint in incarceration for first offenders;
• the primacy of fines over sentences of incarceration;
• the relevance of corporate fines to the ability of directors in closely held corporations to pay related fines; and
• the relevance of compliance with orders issued after the accident;

(D) whether the appeal judge erred in finding that the fines imposed on New Mex by the sentencing justice were demonstrably unfit; and

(E) whether the appeal judge erred in imposing the sentences he did.

Analysis

A. Did the appeal judge misapply the standard of review in a sentencing appeal?

[38] The Crown argues that the appeal judge misapplied the standard of review in a sentencing appeal by failing to apply the limited powers identified in R. v. Lacasse, which the Crown contends governs Provincial Offences Act ("POA") appeals. Crown counsel argues that the appeal judge failed to follow the very high "demonstrably unfit" threshold now demanded, and erred by placing undue emphasis on sentencing ranges and by not deferring to the sentencing justice.

[39] In my view, even assuming that the Lacasse standards apply, the appeal judge did not misapply the standard of review. I am expressing my conclusion about the Lacasse standards cautiously because of this court's Cotton Felts decision. In 1982, Cotton Felts held that pursuant to POA, s. 105(1) (now s. 122(1)), the power of an appellate court to vary a sentence imposed is not limited to cases where the sentencing judge has proceeded upon an error of law or an error in principle. An appellate court can, and is duty bound to, "form its own opinion on the fitness of sentence and to vary any sentence if it does not consider it to be fit": Cotton Felts.

[40] The Crown argues that the notion expressed in Cotton Felts, that an appellate court can simply vary a POA sentence it considers to be unfit, has been overtaken by subsequent Supreme Court of Canada jurisprudence, including Lacasse, relating to the powers of appellate courts in sentencing appeals under the functionally identically worded appeal provision in Criminal Code, R.S.C. 1985, c. C-46, s. 687(1).

[41] I do find the Crown's argument about the application of Lacasse standards to POA appeals to be attractive. The scope for appellate intervention articulated in Cotton Felts is much broader than that of Lacasse, notwithstanding that the legislative authority for both POA appeals and criminal appeals is functionally identical. However, this issue was not argued in detail before us and we do not need to resolve it for the purposes of this appeal. In my view, the appeal judge in this case did not claim a power to intervene inconsistent with the principles articulated in Lacasse.

[42] As I read the Lacasse decision, there are two bases for appellate intervention during sentencing appeals. This is what Wagner J. (as he then was) said, at para. 11:

Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.

[43] In other words, an appeal court may vary a sentence (1) "where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence"; or (2) where the sentence is demonstrably unfit.

[44] What Lacasse clarifies with respect to the first situation is that an appellate court cannot simply find an error of law or an error in principle, and then proceed to vary a sentence. As the quoted passage makes clear, an appellate court may do so only if that error of law or error in principle "has an impact on the sentence". Paragraphs 42-44 of Lacasse are particularly helpful in demonstrating this.

[45] What Lacasse adds with respect to the second situation is that in determining whether a sentence is demonstrably unfit, "[t]he fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention": at para. 11. Paragraphs 51 and 58-69 are helpful on this point.

[46] Moreover, as the Crown pointed out before us, Lacasse affirms a very high threshold for determining whether a sentence is demonstrably unfit. It must be "clearly excessive or inadequate" or represent a "substantial and marked departure" from a proportional sentence properly arrived at based on the correct application of the principles and objectives of sentencing: Lacasse, at para. 52. Paragraphs 52-55 are of assistance on this point.

[47] In the case before us, the appeal judge recognized the controversy over the continued application of Cotton Felts. Indeed, he adopted the view expressed by Fairgrieve J. in R. v. Fagbemi, that Cotton Felts has long been overtaken by more recent case law such as R. v. Turcotte. The appeal judge, therefore, proceeded on the basis that mere unfitness is not enough. He accepted that a sentence must be demonstrably unfit for an appellate court to intervene in the absence of an error of law or error in principle that has an impact on the sentence. This is the standard he applied when finding the New Mex fine and the incarceration imposed on Mr. Purba and Mr. Saini to be "a 'substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes'".

[48] I appreciate that the passage I have just quoted might be taken in isolation to suggest that, in contravention of the direction in Lacasse, the appeal judge committed the error of varying the sentences simply because they deviated from the proper sentencing range. However, I do not believe the appeal judge's reasons should be read in this way.

[49] It is not an error for an appellate court to situate the sentence before it within the usual range of sentences, which is what the appeal judge did here. One cannot begin to measure the demonstrable fitness of a sentence without having an eye to the customary sentencing range. An appeal court errs if it tethers a finding of unfitness to the simple fact that the range is missed, but commits no error by getting a perspective on what a fit sentence looks like by examining comparable cases.

[50] The principle of parity requires that sentences should be similar to other sentences imposed on similar offenders for similar offences committed in similar circumstances. This principle is equally applicable to sentencing for regulatory offences and criminal offences. It is, after all, a corollary of the rule of law and a safeguard for the equal and objective treatment of offenders, considerations just as material in regulatory prosecutions as they are in criminal cases.

[51] When the appeal judge's reasons are examined closely, it is evident that he did not base his finding of demonstrable unfitness simply on the gap between the sentences imposed and the usual sentencing range. Instead, he measured the fitness of the sentences by considering what is required to achieve the deterrent effect that is the priority consideration in sentencing for regulatory offences. He then applied the principles appropriate to imposing sentences of incarceration, and he measured the corporate fine using the Cotton Felts principles. In other words, he assessed the fitness of the sentence by considering the objectives and principles of sentencing, as he was meant to do.

[52] To be sure, there are issues that arose in the appeal judge's analysis. Those problems, however, are with the principles the appeal judge ultimately identified and used in achieving a fit sentence. They are not errors related to the standards of review in a POA sentencing appeal.

[53] I would therefore dismiss this ground of appeal.

B. Did the appeal judge err in finding that the sentencing justice erred in imposing sentences of incarceration because fines would be unduly harsh for Mr. Purba and Mr. Saini?

[54] The sentencing justice accepted that Mr. Purba and Mr. Saini would have to pay the corporate fine, which New Mex could clearly not afford. Against this backdrop, she opted to incarcerate Mr. Purba and Mr. Saini because it would be too difficult for them to pay an additional personal fine, given the heavy corporate fine that they were already facing. I have already quoted the relevant passage in para. 22 of this decision. I will repeat it here, in material part, for convenience:

I find that to impose a fine upon them personally would only cause more financial hardship. However again, I reiterate the need for this court to impose a sentence that deals with general deterrence that brings home to other companies their responsibility, the seriousness of this type of situation. It is unfortunate that we have the loss of the life of Mr. Singh in relation to this matter when it could so easily have been avoided. I do find that a period of incarceration is warranted when considering the totality of the facts in this case.

[55] In R. v. Wu, at para. 3, Binnie J. made clear that "[g]enuine inability to pay a fine is not a proper basis for imprisonment". As a matter of principle, it must also hold true that the hardship of a fine is not a proper basis for imprisonment either. Although the sentencing justice was well-intentioned, her choice to impose incarceration in preference to a fine was a serious error, irrespective of whether the sentences of incarceration she imposed would have been fit.

[56] The appeal judge was therefore correct in finding that the sentencing justice erred in imposing "a jail term because a fine would cause 'more financial hardship'". Although he did not address expressly whether this error affected the sentence, it is obvious that it did.

[57] On this basis alone, the appeal judge was entitled to set aside the sentences of incarceration and to vary the sentences "within the limits prescribed by law": POA, s. 122(1)(b). I will consider at the end of this judgment whether he succeeded in substituting fit sentences in place of the sentences of incarceration. Important to that determination are the Crown's arguments, that I will now address, that the appeal judge identified incorrect principles for sentencing regulatory offenders.

C. Did the appeal judge err in identifying the principles of sentencing for regulatory offences?

[58] When I stated this issue above in para. 37(C), of this decision, I listed five bulleted principles that the Crown challenged during the course of its argument on appeal. The Crown's argument was, in fact, more integrated than the separate, bullet-pointed sub-issues I have identified might suggest. The first three points -- (1) the immateriality of moral blameworthiness, (2) restraint in incarceration of first offenders and (3) the primacy of fines over sentences of incarceration -- were components of the Crown's linked submission that the appeal judge erred by finding that sentences of incarceration are per se unavailable for first offenders convicted of regulatory offences, where the conduct has merely been negligent and not wilful.

[59] In evaluating the correctness of the appeal judge's decision, I will not lose sight of this, but in my view the most instructive way to approach the Crown's arguments is to address the role that each of these considerations plays in sentencing regulatory offenders, and only then consider, along with the other grounds of appeal, how the appeal judge's approach bears on the correctness of the decisions he made.

(1) The principle of moral blameworthiness

[60] The term "moral blameworthiness" refers to an offender's level of culpability, determined primarily by his or her mental state: R. v. M. (C.A.), at para. 79. In my view, where the moral blameworthiness of a regulatory offender is elevated, it may be appropriate to elevate the sentence imposed.

[61] The appeal judge was therefore incorrect in adopting as a sentencing principle the proposition stated in Di Franco, at para. 11, that "[r]egulatory offences are concerned with attaining public policy objectives as opposed to punishing moral blameworthiness" (emphasis added). This is too crude a formulation and poses a false dichotomy. It is true that regulatory offences are concerned with attaining public policy objectives and the criminal law punishes according to the degree of the offender's moral blameworthiness. However, this does not mean that moral blameworthiness may not also be a relevant sentencing consideration for regulatory offences. That relevance can readily be demonstrated.

[62] Without question, despite their public policy focus regulatory offences often have a moral dimension. In Cotton Felts, at p. 295 C.C.C., Blair J.A. invoked this moral dimension when explaining how deterrence performs a broader role in regulatory offences than its conventional role in criminal offences. Specifically, since the moral wrong in causing public harm by regulatory offending may be less obvious than the inherent wrong in committing crimes, regulatory sentencing plays the double role of not only deterring by threat of punishment, but also of communicating condemnation for the moral wrong in acting contrary to the public good. In making this point, Blair J.A. quoted from an earlier decision of this court, R. v. Roussy:

A sentence by emphasizing community disapproval of an act, and branding it as reprehensible has a moral or educative effect, and thereby affects the attitude of the public. One then hopes that a person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such an act.

[63] It is also uncontestable that the moral dimension of regulatory offences varies. In R. v. Sault Ste. Marie (City), at pp. 1325-26 S.C.R., Dickson J. (as he then was) identified three general categories of offences: (1) subjective fault offences "consisting of some positive state of mind such as intent, knowledge, or recklessness"; (2) strict liability, or negligence based offences that punish an absence of reasonable care or due diligence; and (3) offences of "absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault". As Dickson J. explained, there are regulatory offences that fall into each of these categories.

[64] For its part, the criminal law recognizes a loose continuum of moral blameworthiness according to these categories that can affect the sentence imposed. The underlying notion is that those with guiltier minds tend to deserve or require greater punishment. This same principle applies to regulatory offences.

[65] This is reflected in Reference re Motor Vehicle Act (British Columbia) S 94(2), at pp. 515-16 S.C.R., where the Supreme Court of Canada held that it is not constitutionally permissible to incarcerate regulatory offenders for absolute liability offences, where the mere performance of the act is enough for conviction, without subjective mens rea or negligence. The reason for this is that absolute liability does not carry moral blameworthiness to warrant the imposition of incarceration. In contrast, subjective fault and negligence-based offences carry sufficient moral blameworthiness to make incarceration appropriate, depending on the circumstances. As Cory J. said in Wholesale Travel, at p. 238 S.C.R.,"[i]t should not be forgotten that mens rea and negligence are both fault elements which provide a basis for the imposition of liability".

[66] In my view, the relevance of moral blameworthiness in sentencing for regulatory offences follows necessarily from the application in regulatory offences of the fundamental sentencing principle of proportionality.

[67] Simply put, the principle of proportionality requires that there be "just proportion" between the offence and the sentence: R. v. Wilmott, at p. 179 C.C.C. More precisely, it holds that a "sentence must be 'proportionate to both the gravity of the offence and the degree of responsibility of the offender": R. v. Anderson, at para. 21.

[68] The applicability of this principle to sentencing for regulatory offences is clear. In R. v. Ipeelee, at para. 37, LeBel J. called proportionality "the sine qua non of a just sanction". To similar effect, in the regulatory offence case of Re B.C. Motor Vehicle Act, Wilson J. stated, at p. 533 S.C.R.: "It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a 'fit' sentence proportionate to the seriousness of the offence." Not surprisingly, this sine qua non of just punishment is a central consideration when sentencing regulatory offenders where the penalty is not fixed: see, for example, R. v. Nova Scotia Power Inc., at para. 33; and Ontario (Ministry of Natural Resources) v. 819743 Ontario Inc., at paras. 18-19.

[69] The principle of proportionality, in turn, necessarily invites considerations of moral blameworthiness. This is because moral blameworthiness is one of the primary variables relied on to identify the degree of responsibility of the offender and hence the proportionality of the sentence imposed. So much so that in R. v. M. (C.A.), at para. 79, Lamer C.J.C. stated that it is this "element of 'moral blameworthiness' which animates the determination of the appropriate quantum of punishment for a convicted offender as a 'just sanction'".

[70] The normative appeal of this proposition can be seen in this case. Ironically, despite endorsing the erroneous proposition from Di Franco, the appeal judge correctly accepted that incarceration is more appropriate where an offender has acted wilfully or is a repeat offender. These are moral blameworthiness considerations that may properly influence the sentence imposed.

[71] It is important to appreciate that, despite its application, moral blameworthiness does not operate the same way in sentencing regulatory offenders, as it does in sentencing criminal offenders. This is because regulatory offences tend to reflect lower levels of moral blameworthiness. In Sault Ste. Marie (City), at pp. 1324-26 S.C.R., Dickson J. (as he then was) observed that although some regulatory offences require subjective mens rea such as wilfulness or knowledge, regulatory offences are presumed to be strict liability offences that, while employing a reverse onus, penalize the absence of due diligence or reasonable care. In other words, strict liability offences are presumed to be negligence-based offences. In Wholesale Travel, Cory J. cautioned, at p. 219 S.C.R., that regulatory offences based on a standard of reasonable care do not "imply moral blameworthiness in the same manner as criminal fault" (emphasis added).

[72] This point is reflected in R. v. Metron Construction Corp. There, the sentencing judge relied upon OHSA sentences to determine an appropriate sentence for the crime of criminal negligence. It was not wrong for him to consider the OHSA sentences. His error was in failing to appreciate that criminal negligence offences carry a "higher degree of moral blameworthiness and gravity" than OHSA offences. In other words, while both kinds of offences reflect moral blameworthiness, the moral blameworthiness in criminal offences tends to be greater, and that difference must be respected when imposing sentences.

[73] To be clear, the relevance of moral blameworthiness in regulatory sentencing does not mean that sentences should be reduced where higher levels of moral blameworthiness are not present. After all, by design, most regulatory offences can be committed by mere negligence, and some are absolute liability offences imposing punishment even in the absence of moral blameworthiness. The point is that where the moral blameworthiness of a particular offender increases, so too can the penalty imposed.

[74] In my view, the appeal judge therefore erred in accepting as a sentencing principle the erroneous view that regulatory offences are not concerned with moral blameworthiness. Unfortunately, his later recognition that incarceration is more appropriate for wilful offenders or repeat offenders does not make this error harmless. This is because he went on, incorrectly, to discount the "very concerning lack of care for their employees" that was exhibited, on the basis that it was a moral blameworthiness consideration being offered in a regulatory case.

[75] I therefore agree with the Crown. The appeal judge erred in his treatment of moral blameworthiness in sentencing for regulatory offences.

(2) The principle of restraint

[76] The Crown argues that the appeal judge erred by holding that incarceration is per se an unreasonable sentence for a first offender convicted of a regulatory offence, and that a fine is the only fit sentence, regardless of the circumstances of the case. In my view, the appeal judge did not go that far. As indicated, he cited the principle of restraint from Priest that requires a sentencing judge, before imposing a custodial sentence on a first offender, to explore whether dispositions other than incarceration are sufficient. He went on to note that incarceration is "more appropriate for defendants with prior convictions for whom fines have not had a deterrent effect". In my view, there is nothing wrong with applying this principle, or in making the latter observation.

[77] I would, however, raise one caveat. The "first offender" principle from Priest must be applied to regulatory offences with contextual sensitivity. In criminal cases, where proportional sentencing allows, primacy is to be given in sentencing first offenders to the sentencing objectives of individual or specific deterrence and rehabilitation: Priest, at pp. 543-45 O.R. Particular restraint is called for in criminal cases because prolonged incarceration can push non-criminalized individuals towards criminality, and incarceration is more difficult for offenders who are not already criminalized. In my view, these considerations, while still relevant, do not have the same currency with respect to shorter periods of incarceration imposed for regulatory offences that inherently do not carry the stigma of criminalization.

[78] This is particularly so in sentencing for OHSA offences, where, as Laskin J.A. observed in Ontario (Labour) v. Flex-N-Gate Canada Co., at para. 22, deterrence, and most notably general deterrence, is "the most important sentencing principle". Even in the case of first offenders, this sentencing priority should not be undercut by over-emphasizing rehabilitation or specific deterrence.

[79] There is nothing startling about this. Even in criminal cases involving youthful first offenders, where the need for general deterrence is pressing, incarceration may occur despite the usual focus on rehabilitation and specific deterrence: R. v. Currie, at para. 12.

[80] Naturally, the absence of a history of offending is material in gauging a regulatory offender's degree of fault, and a prior good record is relevant in determining what is needed to achieve specific deterrence and rehabilitation. The point is that the "first offender" principle from Priest does not speak as loudly in the regulatory context as it does in criminal cases.

[81] There is a related, more general principle of restraint that is also to be considered. It is aptly described by Derrick J. in Nova Scotia Power, at para. 56:

The principle of restraint requires the sentencing court to apply a measured response in determining the sentence that best satisfies the purpose and principles of sentencing. In an occupational health and safety case this means that the fine imposed must be no greater than is required to meet the objectives of sentencing.

[82] I agree with Derrick J. that this criminal law principle, which can influence not only fines but also the need for and the length of incarceration, applies as much in sentencing for regulatory offences as it does in the criminal sphere. It reflects the inherent notion of fairness that although sentencing must at times occur in the public interest, punishment should not be more aggressive than the public interest requires. As this more general proposition was put by Rosenberg J.A. in Priest, at p. 544 O.R., "it has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances", and that "an offender should not be deprived of liberty 'if less restrictive sanctions may be appropriate in the circumstances'". Since corporations cannot lose their liberty in any meaningful sense, this principle applies with more force when sentencing individuals, but even corporations should not be harmed by sentences that are harsher than they need to be.

[83] There may be room in a given case for reasonable people to disagree over whether a sentence of incarceration is required in spite of the principle of restraint. In such cases it is for the sentencing judge to determine whether this is so. Unless an error of law or error in principle occurred, or the sentence is sufficiently unfit to attract appellate review, deference is required and an appeal court will not intervene simply because of its conclusion that a lesser intervention would have sufficed.

(3) The primacy of fines over incarceration

[84] Sentences of incarceration are uncommon in regulatory prosecutions. In Wholesale Travel, Cory J. observed, at p. 250 S.C.R., that imprisonment is only rarely sought for such offences. This court recognized in 1982 in Cotton Felts, at p. 294 C.C.C., that "[t]o a very large extent" the enforcement of the OHSA is achieved by imposing fines, and this court again made the same observation in 2013 in Metron, at para. 78. Nothing has changed. The Crown acknowledged before us that in the thousands of OHSA prosecutions that have occurred, fewer than two dozen sentences of incarceration have been imposed.

[85] In my view, the rarity of incarceration for regulatory offences is a descriptive observation, not a prescriptive one. In other words, recognizing that incarceration is rare is factually correct, but going beyond the principles of restraint and parity and using the rarity of incarceration as an independent sentencing principle that influences a sentencing outcome is an error. As Cory J. observed in Wholesale Travel, at p. 250 S.C.R., "[imprisonment] must be available as a sanction if there is to be effective enforcement of the regulatory measure". Where a sentencing judge, applying proper principles of sentencing, determines that incarceration is required to achieve the goals of sentencing, the judge is not forestalled from imposing a sentence of incarceration simply because incarceration is uncommon.

[86] The reason why fines are typically imposed in regulatory prosecutions is that fines tend to be sufficient to achieve the deterrence required. When this fact is combined with the general principle of restraint just described, and with the principle of parity, the natural outcome is that sentences of incarceration are not apt to be common. However, the proposition that "incarceration is rarely imposed" for regulatory offences is not a principle of sentencing.

[87] As indicated, the Crown argues that the appeal judge erred in this case by treating incarceration as per se unfit for first offenders, as a matter of principle. Although I think the Crown has overstated the appeal judge's position, I agree that in this case the appeal judge did give undue emphasis to the rarity of sentences of incarceration in arriving at the sentences he imposed. He referenced the rarity of sentences of incarceration in regulatory cases several times, and when distinguishing the sentence of incarceration imposed by Nelson J. in Roofing Medics Ltd. he said it was important to note that Nelson J. recognized that imposing a sentence of incarceration is unusual.

[88] I also agree with the Crown that legislative amendments increasing the maximum fines for OHSA offences, but not the maximum period of incarceration, cannot fairly be taken as signalling a legislative intention to limit the application of custodial sentencing. I do not share the contrary opinion expressed in the passage in Di Franco.

[89] In my view, the appeal judge should not have used the rarity of sentences of incarceration as a reason not to impose one.

(4) The relevance of corporate fines to the ability of directors in closely held corporations to pay related fines

[90] In the course of his decision, the appeal judge listed the factors that were before the sentencing justice. Included among them was that "[t]he defendant directors will have to pay the company's fine as well as their own fines". Defence counsel had used this claim before the sentencing justice to argue that in substance, Mr. Purba and Mr. Saini were being double punished because they would be paying the corporate fines as well, and that this should be taken into account when quantifying their fines. The appeal judge did not say expressly that he was relying on this factor when imposing the fines he did on Mr. Purba and Mr. Saini, but he appears to have done so. He said: "After considering all of the circumstances, the law, the parties' submissions, and [the sentencing justice's] reasons for sentence, I allow the appeal and vary the sentences as follows."

[91] The Crown argues that relying on the claim that Mr. Purba and Mr. Saini will have to pay New Mex's fine to reduce their own fines is an error in principle. The Crown argues that this perverts the basis of corporate law by failing to recognize that corporate defendants are distinct legal entities and ought to be treated as separate from their directors or owners when regulatory penalties are imposed. The Crown also invokes, by analogy, the principles restricting the corporate indemnification of directors described in R. v. Bata Industries Ltd. Finally, the Crown argues that it dulls the deterrent effect of their sentences to permit individual defendants to pierce the corporate veil to achieve reduced penalties.

[92] I need not address each of these arguments save to say that I agree with the proposition that a fine imposed on a corporation should not be treated as a fine imposed on a director. In law, the fines are distinct, and the director is under no obligation to pay the corporate fine.

[93] I can, however, imagine arguments being made about how fines imposed on a closely held corporation can indirectly impoverish individual equity directors by reducing the value of their corporate asset, an event that could affect the ability of the individual equity directors to pay their own fines, or influence the quantum of fine needed to achieve specific deterrence. But this is not the argument that was made here and I take no position on whether such arguments would be tenable. Here, the individual fines were reduced in anticipation that Mr. Purba and Mr. Saini would be paying the corporate fine. The difficulty with reducing individual fines on this basis is that Mr. Purba and Mr. Saini are under no legal obligation to actually pay the corporate fine. Once the sentence is imposed, they could choose to let New Mex fail, with the result that the corporate fine never gets paid. Yet each would still walk away with a pointlessly lowered personal fine because of an anticipated payment that never occurs.

[94] In my view, to the extent that he may have done so, the appeal judge erred by relying on an eventuality that might never occur to assist in quantifying fit fines.

(5) The relevance of compliance with orders issued after the accident

[95] In listing the factors that were before the sentencing justice, the appeal judge said: "The defendants complied with all required orders issued after the accident." To the extent that the appeal judge relied on this as a mitigating factor in setting the sentences he imposed, this too was an error. This court held in Flex-N-Gate, at para. 19, that courts "should not have discretion to treat an employer's post-offence compliance, though statutorily required, as a mitigating factor on sentence". Justice Laskin explained that doing so reduces employers' incentive to comply before an accident occurs, and it reduces the deterrent effect of sentences by mistakenly rewarding defendants for "doing the right thing" despite their obligation to comply.

D. Did the appeal judge err in finding that the fines imposed on New Mex by the sentencing justice were demonstrably unfit?

[96] There is no question that the errors in principle made by the appeal judge affected his conclusion that the New Mex fine was demonstrably unfit. Those errors, particularly discounting moral blameworthiness, would have affected his perspective on the significance of the offences that he was sentencing. Nevertheless, I believe that the appeal judge was correct in finding that the fines imposed were demonstrably unfit.

[97] To be sure, the sentencing justice was right in identifying "deterrence" as the paramount sentencing objective. However, the question of a fit sentence does not rest only on whether that sentence would be an effective deterrent. The inquiry is more subtle, involving a careful examination of the circumstances of the offence and the offender, and a determination of what a fair and effective sentence would be in those circumstances. The factors identified by Blair J.A. in Cotton Felts, at p. 294 C.C.C., are helpful.

[98] The first two of the five main Cotton Felts factors address offender-based considerations: (1) "the size of the company involved"; and (2) "the scope of the economic activity in issue". As I will explain below, the impact of the fine on the company is an important consideration in identifying a fit deterrent sentence.

[99] Justice Blair then identified an important proportionality or fairness consideration: (3) "the extent of actual and potential harm to the public". The message is that the deterrent sentence should be harsh enough, in all of the circumstances, to be proportional to the harm, but not so harsh as to be disproportionate to the harm.

[100] Justice Blair then turned his attention to (4) "the maximum penalty prescribed by statute". A fit deterrent sentence is situated properly on the continuum, within the permissible sentencing range.

[101] Only after the context is determined in this way does Blair J.A. pose for consideration: (5) "the need to enforce regulatory standards by deterrence".

[102] In my view, the fitness of an OHSA fine, and hence the demonstrable unfitness of a sentence of a fine, can be determined essentially by asking: "What amount of fine is required to achieve general and specific deterrence, and would otherwise be appropriate bearing in mind the principles of sentencing, including proportionality, and parity?" The answer to that question in this case does not remotely support a $250,000 fine.

[103] I have no difficulty here with the proportionality of the cumulative $250,000 fine to the offence that occurred, even considering that coupled with the victim surcharge the total amount that must be paid is approximately $312,500. A man died in truly outrageous circumstances, working for a corporation that demonstrated complete disinterest in complying with its legal obligations to protect worker safety, in the absence of significant mitigating circumstances. In a different case, depending on the offender, a fine, many times this level could survive a proportionality challenge for an incident as reprehensible as the one in which Mr. Singh died.

[104] The concerns I have here are with the principle of parity, and, to an even greater extent, with the quantum of fine required to achieve the objectives of general and specific deterrence in this case.

[105] In terms of the principle of parity, the Crown conceded before the appeal judge and before us that this fine was "very, very high" relative to fines imposed on similarly situated defendants in similar cases. Before the sentencing justice, the Crown sought a minimum fine in the amount of $100,000. The Crown suggested that the fine amount could rise, depending on New Mex's financial circumstances. Yet the sentencing justice imposed a fine two and one-half times that amount on a small, financially weak company. The Crown's sentencing position was, in my view, sensitive to the fines imposed on similarly situated offenders in similar cases. The $250,000 fine imposed was not.

[106] A review of the "Workers Fatally Injured -- Corporations" chart found in Bruce Arnott et al., Annotated Occupational Health and Safety Act, looseleaf (May 2017-Rel.), Vol. 2 (Toronto: Thomson Reuters Canada Ltd., 2017), reveals more than a dozen other $250,000 fines imposed in fatality cases, but virtually all of the defendants were large companies, typically, publicly traded companies, international companies, municipal corporations or public utilities. Even fines over $150,000, but under $250,000, tend, with the occasional exception, to be imposed on large manufacturers, businesses with employees in the hundreds or businesses engaged in large-scale projects. Fines over $130,000, but under $150,000, tend to be imposed on firms with dozens of employees or more, or that work on large-scale projects.

[107] To be clear, by making these observations I should not be taken as suggesting that the fines that are to be imposed on large corporations, public utilities and municipalities, should generally fall in the $250,000 range or less. Recently, the maximum OHSA fines for corporate offenders were increased from $500,000 to $1,500,000: Stronger, Fairer Ontario Act (Budget Measures), 2017, S.O. 2017, c. 34, Sch. 30, ss. 4(2), 6 (royal assent received December 14, 2017). Nor do I offer these ranges and general descriptors to suggest that they are sentencing targets that must be or even should be complied with. As Lacasse makes clear, sentencing ranges are guidelines, and no more.

[108] My point is that the fine imposed in this case is so far removed from parity sentencing that the sentencing justice bore a responsibility to demonstrate why, based on sentencing principles, this should be so. Yet she did not. The fine imposed was a substantial and marked departure from what the principle of parity would suggest: a relevant factor in evaluating whether the sentence imposed was "demonstrably unfit".

[109] More significantly, in my opinion the fine imposed on New Mex was markedly more than would have been required to achieve the sentencing objectives of general and specific deterrence in this case.

[110] I will begin with specific deterrence. On the uncontested evidence before the sentencing justice, New Mex was financially precarious. It was barely surviving. Yet the fine that was imposed was more than twice the gross profit New Mex showed in its last profitable year. Even assuming that the principals of New Mex might not be inspired by the human tragedy of the death of a co-worker to take their OHSA obligations more seriously, a much smaller fine than the one imposed would have been sufficient to drive that message home.

[111] In my view, although the circumstances of the offender are crucial in identifying an effective specific deterrent sentence, they remain important in determining an effective general deterrent sentence, as well. The theory of general deterrence is that the sentence imposed and the relevant circumstances that support the sentence will become known to others and stand as a warning that the cost of the behaviour outweighs its benefits. Assuming the fine was $100,000, interested court watchers aware of the circumstances would not just see the $100,000 fine. They would see a $100,000 fine imposed on a closely held corporation operated by two individuals as a form of convenient business association for their modest 12-employee enterprise that, in a good year, might gross $100,000. The fine would send a message that corporate employers that violate OHSA obligations risk significantly burdensome, even existentially threatening fines. In my view, a $250,000 fine far exceeded what was required to send this deterrent message to employers.

[112] One more point of clarification is required. The point I am making is that a fine imposed on a corporate regulatory offender should meaningfully take into account the size and economic activity of the corporation. Since it is not necessary to do so to dispose of this appeal, I am not commenting on whether an offender's "ability to pay" factors into regulatory fines the way it does in criminal cases, namely, as a limitation on the amount of the fine that may be imposed on individual offenders: Criminal Code, s. 734(2).

[113] In my view, despite the errors in principle he made, the appeal judge was correct in finding the fines imposed on New Mex by the sentencing justice to be demonstrably unfit.

E. Did the appeal judge err in imposing the sentences he did?

[114] I have already found that the appeal judge was correct in finding that the sentencing justice erred in law when imposing sentences of incarceration on Mr. Purba and Mr. Saini, and that this legal error affected the sentences imposed. This gave the appeal judge the authority under POA, s. 122(1)(b), to vary the sentences imposed on Mr. Purba and Mr. Saini, within the limits prescribed by law.

[115] The appeal judge was also correct in finding that the fines imposed on New Mex were demonstrably unfit. This gave the appeal judge the authority under POA, s. 122(1)(b), to vary the fines imposed on New Mex.

[116] Having said this, I have also found that the appeal judge erred in the principles that he applied in identifying a fit sentence for all three defendants. Even if deference is to be given to sentences imposed by appeal judges that have varied erroneous trial sentences, no deference is owed in this case by this court to the varied sentences imposed by the appeal judge. The question remains whether we should now vary the sentences that he imposed.

[117] I would not vary the fines imposed on Mr. Purba and Mr. Saini by the appeal judge, or substitute sentences of incarceration. I say this even though I disagree with the appeal judge's conclusion that the sentences of incarceration imposed by the sentencing justice were demonstrably unfit. In my view, the sentences of incarceration were entirely fit, and, in the circumstances at the time of sentencing, much to be preferred to the modest fines imposed by the appeal judge. As I have said, the circumstances of Mr. Singh's death were outrageous. The life of Mr. Singh, a vulnerable man, was put at risk by allowing him to use unsafe equipment in dangerous circumstances. Had the OHSA guidelines been complied with, he would have known to use fall-protection equipment that would have been available to him. His death may have been prevented.

[118] Mr. Purba and Mr. Saini were not only directors of the corporation Mr. Singh worked for, and therefore legally responsible for ensuring OHSA compliance; they were also intimately familiar, as supervisors, with the working practices in the warehouse. As such, it fell directly to them to ensure that OHSA standards were observed, yet they remained blithely ignorant of their obligations. Had the sentencing justice not erred in law by choosing to incarcerate the men because of the financial burden of a fine, I would have found the appeal judge to have erred in finding those sentences of incarceration to be demonstrably unfit.

[119] However, things have changed since Mr. Purba and Mr. Saini were originally sentenced. Based on fresh evidence put before us on consent, Mr. Purba's health has declined. Mr. Saini is a primary caregiver, relied upon heavily and daily to attend to his elderly parents.

[120] Although these circumstances alone would not disqualify a sentence of incarceration, it has been close to six years since the incident, the economic fallout from the incident has been financially difficult for both Mr. Purba and Mr. Saini, and, given her reasoning, the sentencing justice appears to have believed that a fine would have been a fit sentence, even when she sentenced the men. As I say, she reasoned that because a fine would be difficult for them, she would incarcerate them instead. In these circumstances, I would not reinstate the sentences of incarceration imposed by the sentencing justice. In my view, a fine is the appropriate sentence for Mr. Purba and Mr. Saini at this point in time. The only issue is the amount of those fines.

[121] Although I consider the $15,000 fines imposed by the appeal judge to be lenient, I cannot find under the present circumstances that these fines are demonstrably unfit. Combined with the corporate sentence, they are not disproportionate to the gravity of the event, and, bearing in mind their impact on Mr. Purba and Mr. Saini, the fines are not disproportionate. In all of the circumstances, these sentences operate as a sufficient deterrent to these men, and to other similarly situated directors. The fines imposed by the appeal judge offend no other sentencing principles. Therefore, I would not disturb the appeal judge's judgment on the quantum of the fines imposed on Mr. Purba and Mr. Saini.

[122] I can make much the same comment with respect to the fines imposed on New Mex by the appeal judge. The cumulative $50,000 fine imposed is lenient, even bearing in mind the size and economic activities of New Mex. Unlike the fines imposed by the sentencing justice, however, they are not demonstrably unfit. I would leave them undisturbed.

Conclusion

[123] For the reasons provided, I would dismiss the appeal.

Appeal dismissed.

Notes

1 Fines imposed in provincial offence prosecutions, including the fines imposed in this case, carry an automatic additional 25 per cent surcharge: Victim Fine Surcharges, O. Reg. 161/00, s. 1.

2 The sentencing justice referred to the fines on each count as "concurrent" but it is clear that she meant for the $125,000 fines to apply cumulatively, or consecutively. As is true in criminal cases, there is no authority in a Provincial Offences Act, R.S.O. 1990, c. P.33 prosecution to impose concurrent fines: Ontario (Ministry of Labour) v. Flex-N-Gate Canada Co., at paras. 35-37.

3 In R. v. Wholesale Travel Group Inc., at p. 210 S.C.R., La Forest J. equates the absence of due diligence with mere negligence.