R.v.Kazenelson is the first case in which an individual has been sentenced for the offences of criminal negligence causing death and bodily harm within the context of a breach of s. 217.1 of the Criminal Code, otherwise known as the workplace duty of care. As such, it is instructive on the approach the Courts will take in crafting fit and appropriate sentences for like offences.

The accused was convicted (2015 ONSC 3639) after a trial on four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. The victims had been working on an apparatus known as a swing stage repairing the concrete balconies of two 18-storey apartments located in the Toronto suburb of Etobicoke. The swing stage could be moved up and down the exterior of the buildings to facilitate the repairs. Provincial legislation and industry standards required each worker working on the swing stage to wear fall arrest equipment that would prevent the worker from falling should the stage fail or the worker slip.

The accused was the project manager. He had been trained in fall arrest procedures and had received additional training permitting him to train others. The evidence accepted by the trial judge was that fall arrest procedures were followed on the project site. But on Christmas Eve, 2009, at the end of the workday, four employees fell to their deaths and another suffered serious injuries when the swing stage collapsed. All five did not have their fall arrest engaged. A sixth employee did and survived unharmed. The accused had also been on the swing stage when it collapsed without his fall arrest engaged but also survived unharmed by managing to hold on to the edge of a balcony.

Moments before the swing stage collapsed the accused noticed that the some of the workers did not have their fall arrest engaged. The trial judge found that he spoke to the foreman about it (also on the swing stage and also one of the victims) but was told not to worry.

An additional finding by the trial judge at the sentencing phase was that pressure to finish the job had caused the accused not to overrule the foreman and stop the swing stage from being lowered until all employees had their fall arrest engaged or otherwise removed themselves to walk down to the ground. He observed:

In other words, this is not a case in which Mr. Kazenelson’s liability for criminal negligence is based on a failure to advert to an obvious and serious risk to the lives and safety of his workers. Rather, it is a case where he did advert to the risk but decided that it was in [the employer’s] interest to take a chance. As a consequence of his decision to put [the employer’s] interests ahead of his duty to protect the safety of the workers under his authority, four men died and a fifth suffered grievous harm.

Although the accused had no criminal record and was accepted to be a person of good character, in sentencing submissions the disagreement between the Crown and the accused was not that a period of imprisonment was required, only its length. The Crown submitted that imprisonment within the range of four to five years was appropriate; the accused submitting one to two years. In the conclusion, the Court imposed a sentence of 3.5 years concurrent on each count.

No doubt, comparisons will be drawn between the sentence imposed here and the accused’s theoretical exposure had he been prosecuted and convicted under the provincial occupational health and safety legislation. In his submissions here, counsel for the accused argued that s. 718.2(b) of the Criminal Code (“a sentence should be similar to sentences imposed on similar offenders committed in similar circumstances”) required the Court to consider the non-custodial sentence imposed on the employer’s ownership under the provincial legislation in support of a shorter period of imprisonment. The Court rejected this submission, finding that the “principle of parity codified in s.718.2(b) is not engaged by the penalties imposed…..for breaches of a provincial statute.”

This finding is consistent with the conclusion that the criminal law requires a different emphasis in sentencing in comparison to regulatory offences wherein the primary objectives are general and specific deterrence.  These are only two of the factors applicable in the criminal domain, along with denunciation, rehabilitation, reparations and promoting responsibility. It is the former that explains the lengthier sentence imposed by the Court here. Sentences must be proportionate to the gravity of the offences and the degree of responsibility of the offender. The greater the moral blameworthiness of the accused, the more severe the sentence should be. Here, the accused’s advertence (in comparison to a failure to advert) to the risk was a “seriously aggravating circumstance in relation to the moral blameworthiness of his conduct.”

Here is a copy of the Reasons for Sentence. The accused is appealing both his convictions and sentence.