Sentencing Principles: Compliance Not a Mitigating Factor Legal Insights in Canada

Question: What are the implications of compliance in legal sentencing under Canadian law?

Answer:   The Ontario Court of Appeal's decision in Her Majesty the Queen in Right of Ontario (Ministry of Labour) v. Flex-N-Gate Canada Company, 2014 ONCA 53, clarified that compliance is not a mitigating factor in sentencing for statutory offenses.  This ruling prioritizes deterrence and aims to enhance public safety by ensuring that compliance should not be rewarded after the fact.  For support navigating these complex legal requirements, consider FireCode.legal™, a provider of professional legal assistance tailored to your needs.

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Compliance in Regulatory Sentencing: Insights from the Ministry of Labour v. Flex-N Gate Decision

In the landmark decision of Her Majesty the Queen in Right of Ontario (Ministry of Labour) v. Flex-N-Gate Canada Company, 2014 ONCA 53, the Ontario Court of Appeal established a pivotal principle within the realm of Canadian law, addressing the role of compliance in sentencing following statutory offenses. Access the full decision here.

Key Principle: Compliance Is Not a Mitigating Factor

The principle articulated by the Court underscores that compliance with statutory obligations at the time of sentencing does not serve as a mitigating factor to reduce penalties.  The primary reason for this interpretation is rooted in the objective of deterrence, which prioritizes prevention of harm over previous compliance.  The Court highlighted that if compliance were considered a mitigating factor, it might inadvertently incentivize entities to disregard their obligations until legally required by action or injury.  This reasoning is concisely noted in paragraph 28 of the decision.

[28] In my opinion, the appeal court judge erred because, in rewarding Flex-N-Gate for "doing the right thing", she seemed to equate sentencing for the commission of a crime with sentencing for the commission of a regulatory offence.  However, the two contexts are quite different.  Criminal law is concerned with the moral blameworthiness of an accused's conduct; regulatory law is concerned not with the defendant's conduct but with the results of its conduct.

Deterrence as a Fundamental Objective

A significant highlight of the judgment is the emphasis on deterrence as the overarching principle in sentencing for occupational health and safety offenses.  The Court opined that penalties should reflect the severity of the offense and prompt proactive compliance.  The goal is to ensure that entities consistently uphold safety standards, thus protecting the workforce and the public.  Reference to this overarching objective is found in paragraphs 30-33 of the decision.

[30] If, after having contravened a safety standard, an employer then acts to correct the problem, it is not "doing the right thing"; it is doing what the statute requires it to do.  It ought not to be "rewarded" for its compliance.

[31] Accordingly, I would allow the Crown's appeal on this first issue and hold that an employer's corrective action taken in response to an inspector's order is not a mitigating factor on sentence.

[32] I would, however, add two points.  First, if an employer takes corrective action that goes beyond what was required by an inspector's order, then a court may take that additional action into account in sentencing the employer. "Rewarding" remedial steps not required by an inspector's order would be consistent with the goal of accident prevention.

[33] Second -- and perhaps this is an obvious point -- in sentencing an employer for breach of the OHSA, action taken to promote health and safety before an accident occurs should be treated differently from corrective action taken only in response to an inspector's order.  Action taken beforehand is an appropriate mitigating factor on sentence.  Treating it as one is consistent with the goal of accident prevention and with the principle of deterrence.

Implications for Canadian Jurisprudence

This decision holds notable implications for Canadian jurisprudence, affecting how courts assess compliance and its influence on judicial determinations.  By clarifying that compliance does not mitigate penalties, the decision provides clear guidance to courts and sets a precedent for future cases.  It influences diverse sectors requiring legal compliance, strengthening public policy aimed at ensuring safety and regulatory adherence.