Safety First and Last: A criminal matter

There was a recent decision made in the Quebec Superior Court that confirmed that an employer’s violations of provincial health and safety legislation can be a determining factor on which a criminal charge of manslaughter is based. This precedent can end up having wide implications for workplaces across Canada and should be an eye-opener for all employers.

On April 3, 2012, an excavation company owned by Sylvain Fournier was tasked with replacing a sewer and water main line on a construction project. The trench was not shored or sloped adequately and Fournier’s worker, Gilles Lévesque, was in the trench when it collapsed. The slopes were improperly shored, and excavation deposits from the trench were left on top of the banks causing it to collapse, engulfing and killing Lévesque.

As a result of the incident, Fournier was charged with criminal negligence causing death, and manslaughter.

Fournier accepted the first charge, but challenged the charge of manslaughter at the preliminary inquiry. The charge of manslaughter is based on section 222(5)(a) of the Criminal Code of Canada which outlines that a person commits culpable homicide when he causes the death of a human being by an “unlawful act.” A Criminal Code violation such as manslaughter requires mens rea, meaning “the act is not culpable unless the mind is guilty” or simply put, there is criminal intent.

The argument was made that failure to shore the slopes adequately was a contravention of section 3.15.3 of the safety code for the construction industry, which is a strict liability offence not a Criminal Code contravention. Therefore, the defendant argued that a strict liability offence did not fit the definition of an “unlawful act” under the Criminal Code.

Without getting into too much legal jargon, the Crown argued that the “unlawful act” did not have to be criminal in nature. The Crown stated that Fournier’s failure to adequately shore the slopes then permitting Lévesque to work in the trench was a highly dangerous activity and a reasonable person would be able to foresee the potential harm in it.

The judge presiding over the case at the preliminary inquiry agreed with the Crown that Fournier’s failure to protect the worker could meet the definition of an “unlawful act” under the Criminal Code.

Fournier challenged the decision via judicial review, however, the Superior Court ruled in favour of the Crown, upholding the preliminary inquiry’s decision. This decision has now established that a strict liability offence can constitute an “unlawful act” under section 222(5)(a) of the Criminal Code of Canada.

In order for an individual or organization to be charged and convicted for manslaughter, the burden of proof rests with the Crown and they must prove, beyond a reasonable doubt, the following:

• The accused committed a strict liability offence
• The offence was objectively dangerous
• The conduct of the accused party constituted a marked departure from the standard of a reasonable person in similar circumstances
• Taking into consideration, all of the circumstances of the case, a reasonable person would have foreseen the risk of bodily harm

If we apply these factors to the Fournier case, we can see how the decision was made. The Safety Code was contravened by not shoring the slopes, the contravention was objectively dangerous, and the contravention or breech of safety duty in this case is a marked departure from a standard of care of a reasonable person who would have foreseen the high level of risk posed by the inadequately shored trench.

This decision is not without its complications. Regardless, these sentences, if convicted, carry a sentence of life imprisonment.

Jeff Thorne is manager of training and consulting for Occupational Safety Group in Londont, Ont. osg.ca