Creative sentencing penalties can improve workplace safety

Creative or alternate sentencing diverts funds that would otherwise be paid as fines to third-party recipients that promote occupational health and safety. (promesaartstudio/Adobe Stock)

When a company’s failure to comply with OH&S regulations results in a fatality or serious incident, financial penalties are the most common punitive measure applied in Canada.

However, fines alone may be seen as a “cost of doing business” and do little to ensure a safe workplace.

Creative or alternate sentencing diverts funds that would otherwise be paid as fines to third-party recipients that promote occupational health and safety.

Creative sentencing is a way to address restoration by linking punitive measures to improved health and safety outcomes, and industry-wide learning.

In Canada, the use of creative sentencing has been common in environmental law for several years. But in occupational health and safety law, many provinces lack the required legislation and infrastructure essential to making creative sentences effective and enforceable.

Alberta and Nova Scotia are two leaders in this area. Both provinces regularly impose creative sentences for companies found guilty of significant safety violations.

These commonly take the form of ordering the defendant to invest in training, research, scholarships, worker health and safety initiatives, or any other purpose the court considers appropriate to achieve safe and healthy worksites.

Why creative sentencing?

The focus of regulatory law is the protection of societal interests, as opposed to punishing an individual’s moral faults, researchers say. High fines and jail time do not necessarily yield the intended outcomes or serve those affected by a serious incident.

On the other hand, creative sentences can help to improve the OH&S management system and culture within the offending
organization.

Many creative sentences result in the development of safety programs and resources that are widely shared and promote industry-wide learning.

Additionally, companies can actively participate in restorative efforts. And importantly, survivors, family members and co-workers impacted by workplace incidents can witness positive action being taken to promote learning and prevent similar incidents in the future.

Professors at the University of Alberta are currently examining the differential effects of traditional and creative sentencing on workers’ compensation claims in Alberta between 2005 and 2017.

Early findings suggest that when a company is found guilty but has not yet received a sentence, there is a significant reduction in injury rates.

This improvement is not sustained after a traditional sentence of fines or imprisonment, but is maintained if the sentence involves a creative component.

An industry perspective

As the safety association for Canada’s oil and gas industry, Energy Safety Canada has been directly involved in creative sentencing projects in Alberta.

Working in collaboration with industry, the government and the impacted company, our work in this area has resulted in publicly available resources to promote worker safety including:

• a video series on surface water transfer operations, following a serious incident where a worker was struck by a rotating piece of equipment that was not guarded or engineered
• a video series and training course addressing hazards of working in confined spaces, following an incident where a worker was fatally injured after entering a fractionation vessel that was under a nitrogen purge
• yet to be released later this year, animated learning modules on building capacity to manage pressure, following an incident were a worker completing a pressure test on a coil tube connector was inadvertently struck in the face by the test pipe, sustaining fatal injuries.

As a result of this important work, we have witnessed firsthand the benefits to the oil and gas industry, as well as the positive effects for families and co-workers impacted by severe incidents.

Structured properly, a creative sentence can generate greater and longer-lasting safety outcomes.

It can be an opportunity to prove that the loss of a loved one or a life-altering injury is not just a statistic.

It can be a chance for the offending company to demonstrate goodwill.

And it can result in more effective and broader awareness to improve workplace health and safety across Canada.

Paula Campkin is vice-president of operations and the Safety Centre of Excellence at Energy Safety Canada in Calgary, Alta.

This Safety Leadership commentary was originally published in the July/August 2021 issue of OHS Canada.

This commentary has been updated.