This two-part series will examine how changes to Alberta’s Occupational Health and Safety Act have established new sentencing mechanisms that move away from the traditional punitive model to a form of “restorative justice.”
Alberta has updated its Occupational Health and Safety (OHS) Act to push forward more creative sentencing options to the courts when dealing with injury or fatal incidents.
“Alberta is leading the way in the field, along with Nova Scotia,” said Adele Tait, an investigator specialist heading up an Alberta Ministry of Labour team of OHS investigators, who look at incidents in the workplace and recommend creative sentencing options.
At least five 2017 OHS court convictions involved creative sentencing, including corporate probation, said Tait.
“It (the updated OHS Act) was passed in December and comes into effect in June 2018,” said Rob Dykstra, Alberta Ministry of Labour press secretary.
The expanded creative sentence section allows more court latitude in areas such as funding for research on preventative medicine or health and safety training programs.
Tait said creative sentencing is a form of restorative justice.
It moves away from a traditional punitive model of fines and seeks to address the causal factors by putting in place an incident prevention or awareness campaign paid for by the offender.
The process attempts to ensure that an individual’s death or injury did not simply go unheeded and the public process provides some peace to the family or victim, she said.
It is usually recommended in a pre-sentence report on the company charged under the OHS Act and prepared by one of Tait’s investigators to be presented to the court.
A public acknowledgment is part of the process.
“We used to call it a public apology,” Tait said, but it is a more thorough public statement as the company takes responsibility for the incident, explains how it happened, how it impacted the company and its employees, and what preventative measures the company has taken to ensure it is not repeated.
She points to one incident where a Maritimes equipment operator working in Alberta fell through ice and drowned. The acknowledgement was published in the operator’s hometown paper. Tait said for family members it provided some solace knowing that the company was taking responsibility for the worker’s death.
Creative sentencing started decades ago but was confined to the environmental field. It crept into a few OHS sentences in 2000 but gained momentum around 2014, as solutions were examined to prevent incidents and deaths.
One of the largest awards involved the death of two foreign workers killed in a storage tank collapse in Fort McMurray. The company Sinopec Shanghai Engineering Company Canada was fined $1.5 million with $1.3 million allocated to developing a safety program advising foreign workers of their rights.
Another high-profile incident involved a 15-year-old youth who, in 2014, was working at Arjon Construction’s gravel crushing operation when he was pulled into equipment and fatally injured.
In 2017, Arjon was fined $50,000 and placed on two years of corporate probation. Arjon was also ordered to pay $200,000 in favour of the Alberta Sand and Gravel Association (ASGA), Safety in Schools, the Alberta Construction Safety Association (ACSA) and the Alberta Roadbuilders and Heavy Construction Association to support the proposal to create best practices, a youth campaign and prevention courses for related industries.
Tait said Arjon’s owners, who were deeply affected by the incident, gave a presentation to the ASGA in early January.
“They were asked by several individuals attending to give the presentation again,” said Tait, adding the process of being part of a prevention campaign is also often cathartic for owners.
“Creative sentences expand the content that we create,” said Ryan Davis, manager of course development for the ACSA.
Davis said the ACSA has been involved in four cases over the past three years when courts have handed out more creative sentencing. One involved an Alberta worker killed when working around powered mobile equipment. The fine led to the ACSA developing a training course.
“We were able to identify causal factors and similar types of incidents,” he said, and the information was put into the course Working Around Powered Mobile Equipment to be offered in 2018. The funding to the ACSA more than paid for the course content development and, as a result, the association will be able to offer the course free for a year, Davis said.
He said organizations do not want to view creative sentencing as a revenue generating mechanism.
“We don’t like to see these incidents happen — where someone is hurt or killed,” he said, “but it can create some positive outcome from a tragic incident.”
Part two of this series will explore initiatives various associations have undertaken as a result of creative sentencing as well as other 2017 convictions where this method was used.