IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Atlantic Towing Ltd., 2011 NSPC 10
Date: March 3, 2011
Docket: 2133310
Registry: Halifax
Her Majesty the Queen
v.
Atlantic Towing Limited, a body corporate
DECISION ON SENTENCING
Judge: The Honourable Judge Anne S. Derrick
Heard: February 1, 2011
Decision: March 3, 2011
Charge: sections 118 & 121 (1) of the Canada Shipping Act, 2001, c. 26, as amended
Counsel: Paul Adams - Crown Attorney
William Ryan, Q.C. and Alex Keavney - Defence Counsel
By the Court:
Introduction
[1] On February 1, 2011, Atlantic Towing Limited (“ATL”) pleaded guilty to a charge that it did
¼on or between November 18, 2008 and November 20, 2008, in waters under Canadian jurisdiction adjacent to the south-western coast of the Province of Nova Scotia, take action that might jeopardize the safety of a vessel or of persons on board a vessel, namely, the “Shovelmaster”, in contravention of section 118 of the Canada Shipping Act 2001, thereby committing an offence contrary to section 121(1) of the Canada Shipping Act, 2001 (2001, c. 26), as amended.
[2] The sentencing hearing on February 1, 2011 proceeded on the basis of the Crown reciting facts which were largely accepted by ATL. At the time, I identified several instances where the parties were not in agreement about aspects of the facts and will deal with those differences at the point in these reasons where it is appropriate to do so.
[3] I will now set out a narrative that emerged from the facts relied on by the Crown, additional factual content from the Defence, and my review of certain exhibits.
The Factual Narrative
[4] At the time of the alleged offence, Atlantic Towing Limited was the owner and “authorized representative” (as defined in s. 14 of the Canada Shipping Act, 2001) of both the tug Atlantic Larch and the dredge Shovelmaster. The Shovelmaster was a non-propelled flat-bottomed barge with a crane mounted on deck which was used for harbor dredging.
[5] On the evening of November 18, 2008, the Atlantic Larch left the port of Saint John, New Brunswick, on a voyage destined for Halifax, Nova Scotia. The Atlantic Larch was towing the dredge, Shovelmaster. There were three crew members on board the Shovelmaster. Earlier in the day, the Atlantic Larch had an uneventful trip from Halifax to Saint John, an experience that bolstered the decision to set off back to Halifax that night.
[6] On November 18 and 19, 2008, the Environment Canada marine forecast had gale warnings in effect for the areas off the south-western coast of Nova Scotia through which the voyage would be proceeding. Exhibit 11 is an Environment Canada document entitled “Maritime Marine Forecasts Short range 14 – 22 Nov 2008.” The relevant forecast is found on page 2 under “Lurcher/Browns Bank.” It states for Tuesday November 18 the following: “Gale warning in effect. Wind northeast 15 knots increasing to 25 early this evening and to north 35 late overnight. Wind diminishing to northwest 25 Wednesday evening. A few showers.”
[7] As indicated on page 1 of Exhibit 11, the marine forecasts for the Maritimes were issued by Environment Canada at 3:30 p.m. AST Tuesday 18 November 2008 for that night and Wednesday. ATL would have had access to this forecast prior to the Atlantic Larch and Shovelmaster setting out from Saint John.
[8] Environment Canada also provides wave height forecasts. Exhibit 11, page 3 indicates that these forecasts were issued at 5 p.m. AST for the night of November 18 and the following day. For Lurcher, seas were forecast to be 1 to 2 meters, building to 2 to 3 meters late overnight on November 18 and increasing to 3 to 4 meters on Wednesday afternoon, November 19.
[9] The Atlantic Larch, had an on board system, Navtex, for receiving Environment Canada weather forecasts. Navtex recorded the gale warning at 3 a.m. AST on Tuesday November 18 and again at 3 a.m. on Wednesday, November 19. The Environment Canada Short Range forecast and the Navtex recordings indicate the wind was predicted to increase: forecast as “LGT” by Navtex, which I take to mean “light” at 3 a.m. on November 18, in the 3:30 p.m. Short Range forecast it was 15 knots increasing to 35 knots overnight. Indeed, the Navtex records show that by 3 a.m. on Wednesday, November 19, the wind had reached its predicted level. It was still 35 knots (N35) at 5 p.m. on November 19 and had sustained that force throughout the day. The Navtex records in Exhibit 11 indicate that at 10 a.m. on November 19, the winds were N35.
[10] The Atlantic Larch maintained a Deck Log Book, a portion of which is included in Exhibit 11. It indicates that the Atlantic Larch with the Shovelmaster in tow departed for Halifax at 7:30 p.m. on November 18. Wind and sea conditions had been monitored according to the Beaufort Scale prior to departure and recorded in the log. A moderate breeze had been noted through the early morning hours of November 18, which by 10 a.m. was recorded as a “fresh breeze”. A fresh breeze is rated by the Beaufort Scale as between 17 – 21 knots. The wind was picking up.
[11] This trend continued into November 19. The moderate/fresh breeze ratings for the wind continued up until about 7 a.m. when its force increased and was recorded in the Larch’s log, using the Beaufort Scale, as “6”, “strong breeze. By 8 a.m. the wind was noted to be “6/7” on the Scale, “strong breeze/near gale.” A “6/7” on the Beaufort Scale meant probable wave heights of 3 – 4 meters and probable maximum wave heights of 4 – 5.5 meters. In the log the sea was rated as a “6” on the Beaufort Scale with probable wave heights of 3 meters to a maximum of 4 meters.
[12] In the period of 8 a.m. to noon on November 19, 2008, the Atlantic Larch’s log shows winds up to near gale force and Beaufort Scale waves of “6”. By 2 p.m., the winds were rated as gale/strong gale and the sea was recorded in the log at “7/8”. Gale/strong gale force winds correspond in the Beaufort Scale to probable wave heights of 4 – 5.5 meters and maximum wave heights of 5.5 – 7.5 meters. According to the Beaufort Scale, the gale/strong gale conditions carry wind speeds of 34 – 47 knots. A Beaufort Scale sea of “7/8” can mean probable maximum wave heights of 5.5 – 7.5 meters.
[13] The gale strengthened in the afternoon of November 19. Between 2 p.m. and 8 p.m. the winds were logged at a Beaufort Scale force of “8/9” with seas rated as “7/8”. Wave heights were therefore likely to have been between 4 meters at the low end of a Beaufort Scale “7” and 7.5 at the high end of an “8”.
[14] At the time of these adverse weather conditions, the Atlantic Larch and the Shovelmaster were slightly more than 20 nautical miles off the south-western coast of Nova Scotia. The weather was worse than had been expected.
[15] The Shovelmaster was equipped with a garage door, similar in design to a residential garage door. The garage door formed part of the superstructure on the deck of the Shovelmaster. According to the Defence, it had been in place on the Shovelmaster for a number of years, including years when the dredge had been inspected for its Ship Inspection Certificate. Before leaving Saint John, the door had been reinforced with a ¾ inch plywood shield. Even so, the door could not withstand the punishing sea conditions encountered on the afternoon of November 19. The Deck Log Book of the Atlantic Larch records a call being received from the Shovelmaster at 12:45 p.m. that the garage door was “busted, water in.”
[16] The door on the Shovelmaster had been hit by a wave. That was not the worst of it. Debris loosened by the rough seas knocked out the pump being used to combat the water flooding into the dredge. The crew members were also being knocked off their feet. Photographs taken by Search and Rescue and the Coast Guard (Exhibits 6 and 7) depict the rough conditions.
[17] The sea water flooded the crew’s quarters on the Shovelmaster and began to de-stabilize the vessel. The garage door and the crew’s quarters are identified in Exhibit 5, a photograph of the Shovelmaster taken on November 19, 2008. With the three crew members on board, the Shovelmaster began to list.
[18] At 1:15 p.m. on November 19, the Atlantic Larch called the Coast Guard to advise of the situation. By 1:56 p.m. the situation had deteriorated to the point that the Larch called the Coast Guard back and requested the Shovelmaster crew be evacuated.
[19] In response to this distress call, a Canadian Forces Search and Rescue helicopter was dispatched to the scene. The Atlantic Larch and the Shovelmaster remained over 20 nautical miles off the coast of Nova Scotia. After assessing the situation, attempts were made by Search and Rescue technicians to rescue the three crew members from the deck of the Shovelmaster. However, the crew could not be safely airlifted directly from the dredge due to its rolling and pitching in the heavy weather conditions and various obstacles on the deck of the vessel, which included 80 foot pylons, steel cables, and a crane. The helicopter crew saw equipment and debris being washed overboard from the Shovelmaster. The conditions at deck-level are vividly depicted in the photograph that is Exhibit 5.
[20] The Shovelmaster was becoming increasingly unstable as it filled with water. The Search and Rescue technicians assessed the vessel as being in imminent danger of sinking. Prompt action was necessary to rescue its crew.
[21] The Search and Rescue technicians onboard the helicopter decided that the best option was to attempt a “water hoist”. According to the Defence, the three crew members on board the Shovelmaster had already donned their survival suits. They were instructed to abandon the dredge and jump into the sea. The Search and Rescue technicians were then able to winch the three crewmen to safety onboard the rescue helicopter. There is no disagreement that this operation was carried out in perilous conditions. The Crown has submitted it was a life-threatening situation although the Defence does not agree with that characterization. I will address this issue further in due course.
[22] The “water hoist” of the three crew members was successfully accomplished between 3:30 p.m. and 3:50 p.m. on November 19. At this time the Atlantic Larch’s log recorded Beaufort wind force as “8/9” so the probable to probable maximum wave heights could have ranged from 5.5 – 10 meters although the notation for “sea” in the log was “7/8” which indicates lesser wave heights were observed. At 4:16 p.m. the Shovelmaster capsized – approximately 26 minutes after the last crew member was plucked from the sea. Exhibit 8, a series of four photographs, shows the Shovelmaster upside down in the water or “turtled.”
[23] At the time of the above-noted voyage, the Shovelmaster did not have a valid Ship Inspection Certificate as required under s. 10 of the Vessel Certificates Regulations, SOR/2007-31. The parties disagree over whether the last valid Ship Inspection Certification issued to the Shovelmaster expired over seven years earlier on June 21, 2001, which is the Crown’s position, or six years earlier on October 18, 2002, which is the Defence position. I am satisfied for the purposes of this sentencing that nothing turns on this. The fact remains, by November 19, 2008, the Shovelmaster’s Ship Inspection Certificate was long expired.
[24] The purpose of the required Ship Inspection Certificate is to ensure compliance with Canadian ship safety requirements. The Shovelmaster’s Ship Inspection Certificate with the expiry date of June 21, 2001 restricted the vessel to voyages “not more than 15 miles offshore” and required that it be “unmanned when under tow”. The Certificate with the October 18, 2002 expiry date certified that the Shovelmaster was “fit to ply on voyages while being towed or pushed¼15 miles from land or less.”
[25] The capsizing and eventual sinking of the Shovelmaster occurred during a voyage that was undertaken contrary to restrictions contained in each of the expired Certificates. It was “manned” under tow and it was more than 15 nautical miles offshore. Exhibit 4, a marine chart, pinpoints the locations where the Shovelmaster capsized and where it sank.
The Canada Shipping Act
[26] Section 118 of the Canada Shipping Act provides that: “No person shall take any action that might jeopardize the safety of a vessel or of persons on board.” Section 121(1) establishes that “every person” (which of course, in law, includes a corporation like Atlantic Towing Limited) who contravenes section 118 commits an offence. Pursuant to section 121(2), the contravention of section 118 attracts summary conviction and a maximum fine of $1,000,000 or imprisonment up to 18 months.
[27] The Crown advises that this will be the first reported prosecution under section 118, a new section of the Canada Shipping Act. There being no direct precedent for sentencing for a violation of section 118, the Crown submits recourse should be made to occupational health and safety cases, noting that the prohibition against jeopardizing the safety of a vessel or persons on board creates an public welfare offence and sets a minimum standard of conduct and care, in the same manner as workplace safety legislation. Atlantic Towing Limited does not disagree with this comparison. It will also be noted that I have extracted some relevant principles for this sentencing from an environmental protection case.
Sentencing Principles in Safety Legislation
[28] The role of safety legislation in contemporary society was articulated nearly 30 years ago by the Ontario Court of Appeal in the leading case of R. v. Cotton Felts Ltd, [1982] O.J. No. 178:
The Occupational Health and Safety Act is part of a large family of statutes creating what are known as public welfare offences. The Act has a proud place in this group of statutes because its progenitors, the Factory Acts, were among the first modern public welfare statutes designed to establish standards of health and safety in the work place. Examples of this type of statute are legion and cover all facets of life ranging from safety and consumer protection to ecological conservation. In our complex interdependent modern society such regulatory statutes are accepted as essential in the public interest. They ensure standards of conduct, performance and reliability by various economic groups and make life tolerable for all¼ (citations omitted) (Cotton Felts Ltd., paragraph 19)
[29] With the addition of section 118 to the Canada Shipping Act, it is apparent that Parliament is situating the safety of ships and their crews (more broadly described in the legislation as “vessels” and “persons aboard”) within the range of “modern public welfare statutes designed to establish health and safety in the workplace.” Indeed, it will be noted that section 118 is not narrowly confined to safety in “the workplace” as no such distinction is made although the workplace description works very appropriately in the context of the facts here.
Structuring the Sentencing for Safety Violations
[30] The legal framework for the sentencing of safety violations in the context of the Canada Shipping Act is established by the purpose and principles of sentencing found in sections 718-718.2 of the Criminal Code (which apply here by operation of section 34(2) of the Interpretation Act, R.S. 1985, I-21) and the occupational health and safety cases applying the relevant norms.
[31] In the occupational health and safety context, denunciation and deterrence are expressly identified as central sentencing principles. In Cotton Felts, deterrence is described as being of “paramount importance.” (Cotton Felts, paragraph 20) This is reflected in the Ontario Court of Appeal’s analysis of what is to be assessed in fixing an appropriate sentence for a safety violation by a corporation:
The amount of the fine will be determined by a complex of considerations, including the size of the company involved, the scope of the economic activity in issue, the extent of the actual and potential harm to the public, and the maximum penalty prescribed by statute. Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence ... Without being harsh, the fine must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be a mere licence fee for illegal activity. (paragraphs 19 & 22)
[32] The reference to the “warning of others” reflects the “communicative aspect of sentencing” in the occupational health and safety context which carries a particular significance where the offender is a corporation. (R. v. General Scrap Iron and Metals Ltd., 2003 ABQB 22, paragraph 29) The sentencing of a corporation is “an adjudicative process distinct from sentencing human beings.” (General Scrap Iron, paragraph 26) The sentence imposed on a corporation for a safety violation extends “¼beyond the corporation itself and to its past, present and future participants, and to those who might participate in similar corporate activity in future.” The message being communicated is intended to emphasize the essential requirement of ensuring "corporate good conduct and [enhancing] the well being of the public." (General Scrap Iron, paragraphs 28-30)
[33] Deterrence in the occupational health and safety context has been accorded a broad meaning that encompasses an emphasis on community denunciation and stigmatizes conduct. The objective is an educative effect that conditions the attitude of the public. In approving this model of deterrence taken from R. v. Roussy, [1977] O.J. No. 1208 (Ont. C.A.), Blair, J.A. in Cotton Felts held that deterrence with an educative dimension is "particularly applicable to public welfare offences where it is essential for the proper functioning of our society for citizens at large to expect that basic rules are established and enforced to protect the physical, economic and social welfare of the public." (paragraph 23)
[34] This court has acknowledged the role of general deterrence in the context of sentencing a corporation and recognized that it is not a one-size-fits-all application:
[General deterrence involves] the sending of a message to other corporate employers that safety in the workplace must be rigorously maintained with hazards being identified through a critical assessment of what could happen over a broad range of possibilities.... Satisfying the imperatives of general deterrence in sentencing however has to be accomplished in a manner that reflects the particular circumstances of the case. General deterrence may mean different things in different cases¼ (R. v. NSPI, 2008 NSPC 72, paragraph 67)
[35] A demonstrated commitment to safety and an excellent safety record is highly relevant to the analysis required to determine an appropriate sentence. However, general deterrence in sentencing for safety violations has a resonance even where the corporate conduct does not involve a flagrant disregard for safety either in the particular case or as a general practice. Mistaken assumptions about safety can have dangerous, even fatal consequences.
[36] Another fundamental principle of sentencing in safety infraction cases is proportionality: the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This principle, legislated by section 718.1 of the Criminal Code, requires that a sentence reflect the moral blameworthiness of the offender. General Scrap Iron provides an explanation for what this means in the regulatory context:
The severity of the punishment should be directly related to the degree of criminality inherent in the manner of committing the offence. Accidents, innocent mistakes, and not reasonably foreseen events are less damnable than willful surreptitious violations. (General Scrap Iron, paragraph 36(a))
[37] Also relevant are the principles of parity and restraint. Parity requires that the sentence should be “similar to sentences imposed on similar offenders for similar offences in similar circumstances.” (section 718.2(b), Criminal Code) As this is the first sentencing for a violation of section 118 of the Canada Shipping Act, finding similar offenders, similar offences and similar circumstances will be elusive. The principle of restraint is more readily applied. It requires a measured response in determining the sentence that best satisfies the purpose and principles of sentencing. In the occupational health and safety context, this means that the fine imposed must be no greater than is required to meet the objectives of sentencing. (R. v. Meridian Construction Inc., [2005] N.S.J. No. 379 (N.S.P.C.))
[38] I return now to General Scrap Iron for assistance on how to approach sentencing a corporation for a safety violation. In General Scrap Iron it was concluded that sentencing corporations for regulatory offences should be approached with the following in mind.
× the conduct, circumstances and consequences of the offence;
× the terms and aims of the relevant legislation;
× the participation, character and attitude of the corporation offender.(General Scrap Iron, paragraph 35)
[39] Watson, J. articulated an analytical framework constructed around these considerations, noting that aggravating and mitigating factors must be factored into the sentencing of the corporate offender. (General Scrap Iron, paragraph 49)
The Conduct, Circumstances and Consequences of the Offence
[40] This is not a case of a corporation engaging in a “willful, surreptitious” violation of safety requirements. However, it is not quite a case of misapprehending a hazard either, as I found in R. v. NSPI, 2008 NSPC 72 (see paragraph 48) referred to in the Crown’s Book of Authorities. This is a case where a safety hazard was identified and a course of action undertaken notwithstanding. Here the hazard - the weather - was known in advance but its implications and the risk associated with it were miscalculated. The weather was apprehended as a danger, and accordingly, before embarking, ¾ inch plywood was nailed over the garage door on the Shovelmaster. Despite this precautionary measure, deliberate choices compounded the risks being assumed: the Shovelmaster was twenty miles offshore at the height of the gale and it had three crew members on board. I will address each of these issues below and the submission by Atlantic Towing Limited that the element of unforeseeability – an escalation of conditions at sea beyond what had been expected – should mitigate the sentence.
The Sea State
[41] The hazard that sank the Shovelmaster was a pounding, gale-whipped sea. A powerful wave smashed into the garage door that protected the crew’s quarters and swamped the dredge. Over a period of about three and a half hours, the Shovelmaster filled with seawater and eventually capsized. The storm also disabled the pump that was flushing water out of the stricken dredge.
[42] The conditions encountered by the Shovelmaster were worse than anticipated based on the weather forecasts consulted before the voyage commenced on November 18. The seas predicted for the afternoon of November 19, when the Atlantic Larch and the Shovelmaster would be well underway, were for 3 to 4 meter waves. The Atlantic Larch’s log entry for November 19 at 2 p.m. shows a Beaufort Scale rating for wave heights considerably higher than had been expected based on the weather forecasts.
[43] Presumably an experienced Captain does not assume that weather reports can be wholly relied upon. Warnings of an approaching gale would have had to be a matter of concern. The judgement on December 18 appears to have been that because the voyage made by the Atlantic Larch had been completed without incident earlier that day, a return voyage towing the Shovelmaster was going to be as unremarkable. However, the weather conditions were predicted to worsen substantially,which raises the question: why would the conditions on November 18 have been seen as relevant to the return voyage when the weather forecasts for November 19 predicted a gale?
[44] ATL indicated in final submissions that the decision to embark on November 18 even with a gale forecast was based in part on a confidence in the Shovelmaster’s capabilities. ATL pointed to the experience of towing the dredge in much rougher weather, including a tow to Churchill, Manitoba. It is ATL’s position that it had a reasonable basis for assuming the Shovelmaster could cope with three meter seas but I have no evidence on how what was encountered during the Churchill voyage or other voyages compared to the nature of the conditions experienced in the Bay of Fundy on November 18 and 19, 2008.
[45] The decision to tow the Shovelmaster on November 18 seems to have been made, in the face of a gathering storm, without regard for the qualification that the Shovelmaster had never been certified as fit for a voyage more than 15 miles offshore, a restriction acknowledged by ATL in its power point final submissions as implicitly connected to the fact that “sea conditions will tend to be less significant closer to shore.”
The Rogue Wave Submission
[46] In oral submissions, counsel for ATL stated that the Shovelmaster’s garage door was taken out by a thirty foot rogue wave. A rogue wave refers to a wave that comes out of nowhere and is disproportionately bigger than the waves around it. No evidence was offered to support the rogue wave contention. At noon, the Atlantic Larch’s log recorded the Beaufort wind force as “6/7”. The sea was rated as a “6”. By 2 p.m. the wind was logged as “8/9” and the sea had built to a Beaufort Scale rating of “7/8”. There is no log entry for 1 p.m. It is to be recalled that the garage door was taken out by a wave at approximately 12:45 p.m. As the seas increased between noon when a Beaufort Scale rating of “6” was logged and 2 p.m. when the seas were recorded as “7/8”, it is reasonable to infer that the seas closer to 1 p.m. were higher than a “6” but possibly less than an “8”. This inference leads me to conclude that the garage door was knocked out by a wave or waves of heights greater than 3 meters (the low end of a Beaufort Scale sea rating of “6”) but under 7.5 meters (the high end of a Beaufort Scale sea rating of “8”). There is nothing to indicate that a wave as high as 9 meters (the metric height of a 30 foot wave) caved the door in.
[47] I have reviewed the photographs taken by the Coast Guard on November 19 of the Shovelmaster. These photographs (Exhibit 7) were taken around 4 p.m., the Coast Guard having arrived on the scene at 3:53 p.m. just after the Shovelmaster crew had been rescued. Even allowing for the fact that the dredge had been taking on water steadily up to the point when these photographs were shot, and can be seen to be sinking, I do not accept that it would have taken a rogue wave to buckle the garage door. Without expert evidence, I am not in a position to evaluate what amount of force would have been needed to cave in the door or tear it from its moorings, but in the absence of an evidentiary foundation that it would have required a phenomenal wave, given the weather conditions recorded in the Atlantic Larch’s log and the pictures of the dredge, I am satisfied on the basis of common sense that waves reaching a possible maximum of 5.5 meters (the upper end of a Beaufort Scale “7”) would have had a punishing effect on a vessel with as low a draught as the Shovelmaster. Photograph 9, for example, in Exhibit 7, provides a dramatic illustration of the state of the seas.
[48] While I accept that the wave that took out the garage door was likely higher than the waves predicted by the weather forecasts of December 18, the evidence does not establish that it was a rogue wave and, according to the Atlantic Larch’s log, no such description was reported by the Shovelmaster.
[49] In conclusion on this issue, I will also indicate that I have addressed it because it was raised by ATL. In my view, evidence that there was a rogue wave would not make a difference in this case. Having undertaken an unsafe voyage, ATL’s culpability is not diminished because weather conditions that were expected to be bad became worse than predicted.
Twenty Miles Offshore with Three Crew Onboard
[50] There has been no suggestion that the Atlantic Larch’s Captain or any of the crew, all of whom I am told participated in the decision to sail in the face of the December 18 gale warnings, were inexperienced or incompetent. A judgement was made that the voyage could be safely undertaken. A judgment was also made that it could be undertaken 20 nautical miles offshore even though the dredge had never been certified to sail more than 15 nautical miles offshore.
[51] There is no dispute that on November 18 and 19, 2008, the Shovelmaster did not have a valid Ship Inspection Certificate. The previous certificates tendered as evidence all contained the limitation that the Shovelmaster was not to be towed more than 15 miles offshore. Exhibit 1 is a certificate dated April 17, 1996 and valid to December 30, 1996. It limited the Shovelmaster to voyages “not more than 15 miles from land.” Exhibit 2, a certificate dated June 22, 2000 and valid for one year, contained the same limitation. Exhibit 3, a Ship Inspection Certificate dated October 19, 1998 and in force until October 18, 2002 also limited the Shovelmaster’s range, indicating the dredge was “¼fit to ply on voyages while being towed or pushed¼15 miles from land or less.”
[52] Obviously ATL knew in November 2008 the Shovelmaster did not have a valid Ship Inspection Certificate and, in any event, had never been certified for a voyage more than 15 miles offshore. ATL also knew that the most recently issued Ship Inspection Certificate, dated June 21, 2001, required that the Shovelmaster be “unmanned” when under tow.
[53] The decision to undertake a “manned” voyage five miles farther from shore than the Shovelmaster had ever been certified for into the teeth of a gale was fraught with risk. The dangers this posed materialized when the garage door was smashed off its moorings and the dredge began to take on water. The timely intervention of Search and Rescue and a harrowing rescue averted a disaster.
[54] Even if the Captain had thought, as was suggested by ATL’s counsel, that twenty miles offshore was the safest route, an experienced seafarer would know that bad weather conditions would be worse farther from shore. And there has been no explanation as to why it was considered appropriate, especially with a storm brewing, to have three crew members on the Shovelmaster.
[55] The consequences of the Shovelmaster’s voyage could have been deadly. The three crew members had to jump into the raging seas in order to be rescued. I do not accept that other rescue options were viable. ATL suggested this in its submissions, that the Atlantic Larch could have swung around and plucked the men from the sea or launched a lifeboat, but the fact is, the tug did neither. Instead the decision was made that Search and Rescue was needed. This was a prudent and responsible choice: obviously the Captain and crew of the Larch saw the conditions as requiring a rescue operation beyond what they could safely undertake.
The Terms and Aims of the Canada Shipping Act
[56] The objectives of the Canada Shipping Act are set out in section 6. Relevant to this case, the legislation seeks to:
(a) protect the health and well-being of individuals, including the crews of vessels, who participate in marine transportation and commerce;
(b) promote safety in marine transportation¼, and
(c) protect the marine environment from damage due to navigation and shipping activities.
[57] Section 118 of the Canada Shipping Act is specifically focused on potential hazards, prohibiting conduct that “might” jeopardize the safety of a vessel or persons on board. It sets a very high standard of care. The legislation recognizes that penalizing potential harm is important. Much more than mere potential for harm was present in this case: ATL’s actions actually jeopardized the safety of the crew on the Shovelmaster and resulted in the loss of the dredge.
The Participation, Character and Attitude of the Corporation Offender
[58] Atlantic Towing Limited is a company owned, and primarily operated in Atlantic Canada. It has no prior safety-related convictions and operates to high standard for safety. ATL indicated in the power point it used in its final submissions that:
In 1997 it was the first tugboat operator in North America to achieve dual certification to ISM Code and ISO 9002:1994 standard. In 2002, ATL’s Quality, Health, Safety and Environmental Protection Management System was upgraded to achieve certification to the revised ISO 9001:2000 Standard. In 2008, ATL became one of the first Offshore Support Vessel/Tugboat management companies in North America to achieve triple ISM Code, ISO 9001:2000 and ISO 14001:2004 certification.
[59] As for the November 2008 trip itself, ATL submits that extensive pre-departure procedures were followed. Completed procedures included: Departure Checklist and Towed Departure Object Pre-departure Checklist; two days were spent preparing the barge which included, extensive caulking and sealing to prevent water infiltration, securing the “spuds”, and reinforcing the garage door with ¾ inch plywood; and a tool box meeting was conducted on the Larch prior to departure to go through the checklist, the route plan and the weather reports. This ten minute tool box meeting is noted in the Atlantic Larch’s log.
[60] According to submissions by ATL, not disputed by the Crown, following the sinking of the Shovelmaster, ATL did its own investigation of the incident and cooperated throughout with authorities in all respects. ATL indicated during final submissions that it also has done the following: a compliance review to ensure compliance with all applicable Regulations; an internal audit to ensure ATL procedures are followed in all future voyages, especially regarding the towing of barges; and re-certification of all barges has either occurred or is underway, with policies in place to ensure compliance with any conditions imposed. ATL policy now requires all similar barges to be towed with no crew on board.
[61] A letter dated May 11, 2009, (Exhibit 9) from ATL’s General Manager confirmed the changes implemented by ATL since the events of November 19, 2008. In it ATL indicated an impending departure for Saint John by the ATL dredge Cranemaster. Safety received a heavy emphasis: “The dredge will be towed only with favourable weather conditions, winds less than 25 knots and waves less than 3 meters¼” The letter advised there would be no crew on board during the voyage. Counsel for ATL described these measures as a direct effort by ATL to be responsive to the events of November 2008.
Aggravating Factors
[62] Despite the attention paid to safety before embarking, a deliberate decision was made to undertake a voyage in the face of gale warnings, towing a dredge that was not supposed to be manned, farther from shore than it was supposed to be towed. There was no intention to jeopardize the safety of the crew or the Shovelmaster, but the risk assessment was very seriously flawed. ATL’s guilty plea is an implicit acknowledgment of this.
[63] In this case there was a direct causal link between the action taken, which constitutes the violation of section 118, and the peril that ensued. This is not a case where, at worst, the events exposed a potential risk. An actual risk to life was the direct result of the decision to undertake the trip in the manner it was undertaken. The dredge capsized. Three lives were endangered. The bad weather, the presence of crew on the dredge and the distance from shore each played a role.
[64] It is untenable to suggest, as ATL’s counsel did in final submissions, that the situation was not life-threatening. The rescue could have come too late – the Shovelmaster being twenty miles from shore added to the time required to reach the sinking dredge, or it could have gone badly – conditions twenty miles offshore in a gale were hazardous, and the men could have drowned.
Mitigating Factors
[65] It is a mitigating factor that ATL has pleaded guilty and accepted responsibility. This acknowledgement of responsibility has however been tempered somewhat. In final submissions, ATL’s counsel identified the action that ATL accepts as having necessitated a guilty plea. It is set out in ATL’s power point: “ATL towed the Shovelmaster more than 15 NM offshore, contrary to the restriction on the Inspection Certificate.” This description does not acknowledge the jeopardy the Shovelmaster and its crew were placed in by the decision to sail, with crew on board, into the teeth of a storm. Being more than 15 nautical miles offshore compounded the danger but it is only part of the misjudgement that could have cost three men their lives.
[66] In my view, the factor that is more strongly mitigating than the qualified acknowledgement of responsibility is ATL’s post-offence conduct which essentially offsets the argument made on ATL’s behalf that tended to minimize the peril to which the Shovelmaster’s crew was exposed. This is a case where actions speak louder than words. ATL’s actions, described earlier in these reasons, indicates to me that ATL has learned from the events of November 18 and 19, 2008. ATL responded to the incident by taking meaningful steps to ensure it is operating a safe workplace. I do not view this as a case where the sentence needs to emphasize specific deterrence.
[67] ATL’s clean safety record is also a significant mitigating factor. ATL has no prior safety violations of any kind and has demonstrated a strong commitment to safety in its operations as I indicated previously in describing its compliance with ISO standards. The fact that the Shovelmaster crew got into their survival suits as soon as the dredge started to take on water suggests that ATL’s safety training had been assimilated and was effective.
[68] This is a case with a happy ending. The safety violation did not result in anyone’s death or injury. Search and Rescue executed a flawless rescue. A certain amount of luck was on everyone’s side, in addition to the skill involved in winching the crew to safety. The Shovelmaster did not fare so well. While an offender “lucky enough to avoid actual harm should not benefit from the intervention of luck”, (R. v. Terroco Industries Ltd., 2005 ABCA 141, paragraph 48), once the dredge was swamped, ATL can be credited with having taken appropriate action by contacting the Coast Guard, following up forty minutes later as conditions worsened to request a rescue of the Shovelmaster’s crew.
Position of the Parties
[69] The Crown is looking for a fine against ATL in the $90,000 - $100,000 range to reflect the gravity of the offence, the blameworthiness of ATL, and the fact that it is a large scale commercial operation. The Crown wants to ensure the fine packs a punch, that it is not seen as akin to a licensing fee carrying no material consequences for safety breaches. The Crown notes the comments in General Scrap Iron on this point: “The larger the corporation, the larger the fine. This approach is principally motivated by a desire to ensure that the fine imposed in the case of large corporations is not readily absorbed as a simple cost of doing business¼” (General Scrap Iron, paragraph 36(d))
[70] The Defence submits that a fine of $15,000 - $25,000 is appropriate citing the mitigating factors, the unpredicted conditions and the reasonable determination by ATL that the trip could be accomplished safely.
Determining A Fit and Proper Sentence
[71] It is useful to now return to the framework for determining the extent of the fine applicable in this case. The Ontario Court of Appeal in Cotton Felts identified the need to consider, in fixing the fine, “¼the size of the company involved, the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximum penalty prescribed by statute.” (Cotton Felts, paragraph 19)
Size of the Company/Scope of the Economic Activity
[72] ATL describes itself on its website (Exhibit 10) as a “world class marine service” with “world class vessels to support your projects worldwide.” It refers to itself as “a leader in marine services” for over 50 years. Canadian owned and operated, ATL’s scope of operations encompasses “Atlantic Canada to Central and Latin America, the Arctic, Europe and the Far East.” It emphasizes that its operations and services are focused on results “for our customers around the world.” Its marine services include: barge charter, harbor towage, coastal towage, offshore support, and salvage. Included in its fleet of vessels are off-shore vessels (OSV’s), Z drive tugs, conventional tugs and barges. (I note that the Atlantic Larch is one of a fleet of ten Z drive tugs depicted on the website.) Harbour Development, a division of Atlantic Towing Ltd. operates “the largest and most capable dredging and marine construction equipment in Eastern Canada.”
[73] ATL’s website posts a link to J.D. Irving Limited and indicates that “As part of the Irving Transportation Services we partner with our family of companies to provide comprehensive and customized transportation solutions to high-profile companies in a variety of industries.”
[74] ATL is a large company operating a multi-million dollar business. This is obvious from its website and this statement, made by the Crown in final submissions, was not disputed by Defence.
Extent of Actual and Potential Harm
[75] Where potential, and not merely actual harm is prohibited, potential harm “may often be the focus of the harm principle” in the sentencing context: the greater the potential for harm, or the greater the actual harm, the greater the penalty. (R. v. Terroco Industries Ltd., paragraph 48)
[76] There was actual harm in this case: the men on board the Shovelmaster experienced a life-threatening event and the dredge they were not supposed to be on, was lost.
Maximum Penalty Prescribed by Statute
[77] The maximum fine for a violation of section 118 of the Canada Shipping Act is one million dollars. This very high upper-limit can be seen as constituting a message from Parliament that low or nominal fines will not meet the goals of the legislation. (Terroco Industries Ltd., paragraph 54) Evidently Parliament determined that a wide range in possible fines “was needed in order to provide more options for appropriate general deterrent dispositions.” (R. v. Clearwater Electric Ltd., [2001] M.J. No. 101, Man. P.C.) General deterrence is the principle employed to enforce regulatory standards.
[78] In my view the fine range proposed by ATL of $15,000 - $25,000 would, on the facts of this case, and in the context of this corporate offender, constitute a low or nominal fine. ATL’s suggestion that a fine in this range is justified by its exemplary safety record, the fact of the weather conditions being worse than expected, and the reasonableness of its assessment that the trip could be accomplished safely, fails to address the decision, notwithstanding the predicted gale, to put crew on the Shovelmaster and sail more than 15 nautical miles offshore. The charted course failed to account for the risk of disaster striking in worsening conditions and rescuers having that much more distance to cover. With men on board the Shovelmaster, a catastrophic turn of events would directly risk lives.
[79] ATL deserves credit for its safety record and the steps it has taken since these events. In fixing a fine amount, these mitigating factors must be taken into account. As I mentioned already, this is not a case where the fine needs to achieve specific deterrence. This is a case where the emphasis should be on general deterrence in the context of a business with substantial assets. Other large Canadian shipping companies should understand from this case that bad judgement will attract significant consequences where lives are imperiled and a vessel is lost.
[80] The appropriate fine in this case is $75,000. The mitigating factors in this case have led me to conclude that ATL should not be fined as heavily as proposed by the Crown. I will hear counsel on ATL’s proposal for a reasonable period of time for payment.
[81] I will make a couple of final comments. First, although unlike occupational health and safety legislation, for example, section 75(1) of Nova Scotia’s Act, the Canada Shipping Act is silent on the issue of creative sentencing options, the operation of the Criminal Code would permit sentencing dispositions such as probation in a Canada Shipping Act safety violation case. However I have concluded that the sentencing option appropriate to this case is a fine as I have indicated. Second, I find that there is no authority for imposing a victim surcharge and note that no submissions were made by the Crown that I should. Section 737 of the Criminal Code limits Federal victim surcharges to offences under the Criminal Code or the Controlled Drugs and Substances Act. There does not appear to be any basis for ordering a victim surcharge in the context of a violation under other Federal statutes. (see, for example, R. v. Sandover-Sly, 2000 BCCA 475, paragraph 2)