Creative sentencing is missing the mark in OHS prosecutions

Two years ago, I was contacted by an Alberta safety association and asked if I was interested in contributing to an injury prevention workshop. The related project was funded by a court-ordered creative sentence stemming from the tragic death of a young worker. Up until that point, I had been skeptical about creative sentencing but I was curious to learn more and so we exchanged email messages and met to discuss the project. Although the project was related to my area of expertise and the safety association would have been a good partner, I didn’t feel right about taking on the work.

Currently, most OHS-related creative sentencing in Canada occurs in Alberta but there is interest in Saskatchewan and other provinces in this approach.  

Section 49 of Alberta’s Occupation Health and Safety Act allows courts to order, as an addition or alternative in a conviction, that the convicted party pay money to support health and safety-related:

(i) training or educational programs;

(ii) research programs;

(iii) initiatives carried out by a non-profit organization;

(iv) scholarships; or

(v) any other purpose that furthers the goal of achieving healthy and safe work sites

Since January 2025, 18 of 31 (58%) OHS convictions in Alberta have involved creative sentencing resulting in a total of $5,092,000 in funds (average $283,000 per case). These funds typically go towards developing worker training and educational programs, research studies and other initiatives (e.g., student scholarships and awards).

Proponents of creative sentencing point to several advantages, foremost being the opportunity to earmark funds to related injury prevention (e.g., training) rather than directing funds to provincial general revenues. Another significant advantage of creative sentencing is that it can help settle cases and avoid a potentially lengthy and costly trial.

At first glance there is much to like about creative sentencing, so what’s the problem?

My greatest concern with creative sentencing is the misalignment between who is typically held legally responsible for serious injuries and worker deaths (an employer and/or supervisor) and the target of creative sentences (workers).

Consider this recent case from Alberta: In July, Mr. Mike’s Plumbing Ltd. (Calgary) pleaded guilty for a trench collapse that killed 27 year old worker, Liam Johnston. The trench was 19 feet deep with no shoring and no supervisor was present at the time of the collapse. The employer was fined $115,000 and ordered “to pay $215,000 in favour of the Injury Prevention Centre to develop a province-wide safety awareness campaign designed to empower young workers to recognize hazards, speak up about unsafe work and help prevent workplace injuries through targeted education, industry collaboration and a shared commitment to safer workplaces.”

Unfortunately, this initiative doesn’t address the primary causes of the incident: employer non-compliance with trenching provisions, a persistent issue in the sector, and lack of supervision. In terms of worker voice, research shows that workers are empowered to speak up when supervisors and employers encourage such behaviour through a positive safety culture. Shouldn’t we invest in interventions that both motivate employers and supervisors to carry out their statutory responsibilities, and encourage and reward workers for speaking up about potential hazards?

Here is another example of misalignment. This incident involved a worker who was killed in 2023 when a pike pole came in contact with a rotating Canter machine. The employer, Weyerhaeuser Company Limited, pleaded guilty for its lack of due diligence and was ordered to pay “$355,000 in favour of Northwestern Polytechnic, for the development of a comprehensive training program known as the Northern Industrial Safety Pathways Program, which will provide structured training and tuition support for new and inexperienced workers entering industrial roles in sectors including forestry, oil and gas, manufacturing, mining and agriculture.” How does this creative sentence address the underlying issue, which is the failure of a large employer to ensure the health and safety of their employees?

In my review of Alberta’s 2025 and 2026 OHS prosecutions, I found no creative sentences involving employers and supervisors despite these parties being held legally accountable.  

An important objective of OHS prosecutions is general deterrence. Large penalties send a strong message to the employer community about the costs of non-compliance. The objective of creative sentencing is not deterrence. And with creative sentencing there is a risk that Crown prosecutors in jurisdictions that come to rely on this remedy may become weakened over time and face more pressure from lawyers representing large employers to settle. This, in turn, weakens general deterrence.     

We also need to consider how industry prevention programs are funded. Safety associations that provide injury prevention services are primarily funded through employer WCB premiums. What are the implications of safety associations coming to rely on creative sentencing as a source of revenue? What oversight is there to ensure related projects meet their desired outcomes?

For consultants and researchers there is a risk that they become advocates for creative sentencing because they stand to benefit from the substantial funding associated with such sentences.

To be clear, I’m not opposed to all creative sentencing – it has a place in OHS prosecutions. For example, it may be appropriate for an employer or supervisor to take restorative steps with an affected worker, family and/or community. As part of this, organizational leaders could spend time working with organizations like Threads of Life.

There are also benefits to employer- and supervisor-focused safety management training.

Finally, there is value in having an owner or executive of an organization speak directly to employer audiences about what they learned from their organization’s experience (e.g., trauma caused to families and survivors, costs and disruption to their business), for example, by speaking at multiple Chamber of Commerce events. This form of community service serves general deterrence and is aligned with what most needs to change in workplaces: having employers and supervisors who are genuinely committed to fostering a strong culture of safety.

The main reason I decided not to participate in the consulting project was that it involved facilitating a workshop with young workers. If, instead, the audience was supervisors or senior leaders, I would have enthusiastically accepted the opportunity because that is where we have the greatest potential to make a difference.