Bruce McMeekin Law

Regulatory Modernization Act: The Ontario Court of Justice Relies on Multiple Previous Convictions Under the EPA to Impose a Rare Continuous Jail Sentence for Workplace Safety Offences

The Regulatory Modernization Act (RMA) was enacted by the legislature in 2007. Under section 15, it permits the Crown to request a more severe penalty for convictions under a provincial statute when the Crown is of the opinion that a previous conviction under another provincial statute is relevant as an aggravating factor to the determination of the appropriate penalty for the current conviction. Where a court receives such a request, it must indicate whether it is imposing a more severe penalty having regard to the previous conviction, or, if it decides that the previous conviction does not justify a more severe penalty, give reasons for that decision.

In Ontario (Ministry of Labour) v. J.R. Contracting Services et al, the employer and two individuals were convicted under the Occupational Health and Safety Act (OHSA) for offences arising from an employee’s serious workplace injury while he was engaged in the removal of waste shingles from a roof. These appear to be the first convictions for all three defendants under the OHSA. However, in sentencing one of the individuals, the court applied section 15 of the RMA, accepting the Crown’s submission that the defendant’s previous convictions under the Environmental Protection Act (EPA) (all occurring within the context of waste management or removal) were aggravating factors requiring she serve a continuous jail sentence and sentenced her to 45 days. The defendant had been sentenced to a combination of fines and intermittent jail sentences for the EPA offences. The court expressed concern with the defendant’s failure to pay all but one of the fines levied against her for the EPA convictions, which failure the court characterized as “disturbing” and the “defiance of court orders”. In requiring a continuous, as opposed to an intermittent,  jail sentence, the court appears to have implicitly accepted the Crown’s submission that the intermittent jail sentences imposed for the EPA convictions had failed to obtain the goal of specific deterrence for the defendant.

Jail sentences, whether to be served intermittently or continuously, are rare for first time OHSA offences.

Prior to the RMA, in the context of provincial offences one would have been correct in thinking of deterrence in the sense of deterring future offences contrary to the provincial statute at hand or a group of provincial statutes linked together by specific provisions; for example, the EPA and  the other “environmental” statutes. That is because provincial offences and their penalties are not contained in a single statute like the Criminal Code, which defines (almost all) criminal offences, their penalties and the procedure by which they must be prosecuted. The effect of section 15 of the RMA is to tie the provincial statutes more closely together into a more single (albeit loose) code of justice like the Criminal Code by broadening the notion of deterrence to mean the promotion of public safety through the deterrence of any future provincial offence, just not a repeat of the offence at hand.  This is much closer to the notion of deterrence in the criminal law.  Moreover, just as in the situation of a criminal proceeding, it leaves to the Crown the discretion to decide when previous convictions may be relevant requiring them to be raised as an aggravating factor in the sentencing of a repeat offender for a current conviction.

This is the first time section 15 of the RMA has been applied in a reported case. The reasons for sentencing were released on March 6 and the defendants have thirty days from that date in which to commence an appeal.

Here is a copy of the decision:2014oncj115