Adrian Miedema Click here to see full sized version.

There is the law, then there is the flexibility of the law. Some provinces – Newfoundland and Labrador, and Alberta stand out – are using that legislative flexibility to impose creative and effective sentences for occupational health and safety (OH&S) violations in particular.

Creative sentencing involves replacing the traditional justice system process with an agreement by all parties as to how violators will be dealt with — and how communities will benefit. “It’s an efficient way to do things. Issues get settled quickly,” Dianne Whalen, minister of transportation and works in Newfoundland and Labrador, said in an interview.

The approach also pleases those firms that have been charged with an OH&S offense. “Companies today understand that creative sentencing is an important element to the fines and penalties approach we have in our legislation,” said Denis Mahoney, a partner with the law firm McInnes Cooper in St. John’s.

“The companies recognize the rehabilitative nature of creative sentencing,” he added.

Here’s how creative sentencing worked recently in Newfoundland and Labrador. On June 18, 2002, an explosion occurred at the Ultramar tank farm in Botwood, which resulted in injuries to two workers.

Three companies, including Crosbie Industrial Services, the largest industrial servicing and emergency response firm in Newfoundland, were subsequently charged in the incident.

Rather than fighting it out at trial, Crosbie Industrial opted for creative sentencing. “There is no formal (court) decision,” explains Mahoney. “You don’t go to court except for sentencing. The party pleads and outlines a statement of facts. Then there is a joint sentencing agreement.”

In this case, that agreement called for Crosbie Industrial to pay $10,000, which was divided among the three closest high schools to where the incident occurred and which offer what is called the Workplace Safety course. The amount of funding each school received is proportional to the number of students attending the course.

Since 2003, when creative sentencing became an option in Alberta, companies found in violation of the Occupational Health and Safety Act have been fined close to $2 million. This money has been directed to charitable groups that support programs designed to prevent similar experiences.

According to Tamara Trull, an Edmonton-based Crown prosecutor, creative sentencing decisions are now being considered in 95 per cent of cases where there has been a violation of the Act.

“I truly believe that it allows for more prevention, and that it really improves health and safety in the province,” she said.

It’s not only OH&S violators who are subject to, and open to, creative sentencing. Leddy Exploration Ltd. of Calgary, Alberta, was recently sentenced in Alberta Provincial Court to a fine of $2,500 and a contribution of $40,000 to the Environmental Damages Fund after pleading guilty to one count of contravening subs. 36(3) of the federal Fisheries Act, which protects fish-bearing waters from the deposit of any substance that is harmful to aquatic life. 

In May of 2004, Leddy released crude oil from a pipeline into Poplar Creek, and charges were laid in 2005 after an investigation by Environment Canada.

The Environmental Damages Fund, administered by Environment Canada, is used to help restore ecosystems. The monies contributed by Leddy to the fund will be used to establish a trout lake in the area where the release occurred. As part of a creative sentencing process, Leddy will also make a presentation at a Western Canada Spill Services Oil Spill Co-op exercise about the events that led to the release, and offer suggestions to prevent similar occurrences in the future.

Creative sentencing often spares companies the cost of a trial, extensive legal fees and employee time and effort. It may even save them some money in terms of the total fine they are ordered to pay. But both the Crown and the company are taking a risk with creative sentencing, says Mahoney.

A judge could award more, or less, than the joint agreement calls for. Usually, however, the ultimate fee agreement reflects what the more likely outcome could be.

But creative sentencing goes beyond dollars and cents. It’s a great way to give back to the community. “No amount of money will ever bring back a loved one. But every family I have ever met says they want to do something in memory of their loved one. All they want is for this to never happen to another family ever again, and creative sentencing helps make that happen,” said Shirley Hickman, executive director of Threads of Life, the Association for Workplace Tragedy Family Support.

Creative sentencing is also a great way to increase understanding — and not just about safety in the workplace, said Whalen. “(Creative sentencing) reinforces the importance of occupational health and safety. It makes people much more aware — and makes people aware companies were prosecuted. It’s not perceived that companies are getting away with something.”

Still, creative sentencing only works when provincial legislation allows it to work, and most provinces don’t have such laws, or such leeway, on the books. “Courts only have the power given to them under statutes,” said Adrian Miedema, a partner with Fraser Milner Casgrain LLP in Toronto.

“Alberta and Newfoundland and Labrador have given their courts greater flexibility,” he added. “In Ontario, for example, (the law) only provides for fines and jail terms.”

It also provides for probation, a potentially creative sentence. However, it is one the courts in Ontario appear reluctant to use. “Practically speaking, there are few cases where judges in Ontario have imposed probation,” noted Miedema.

Reluctance may change to enthusiasm as provinces like Newfoundland and Labrador and Alberta rely more and more on creative sentencing to mete out justice — effectively.