Safety First and Last: Breaching safety regulations found to be grounds for criminal conviction

This is the first case of its kind and the details of this case are not unlike many other health and safety cases.

On April 3, 2012, Fournier’s company was replacing a sewer line in a residential neighbourhood in Lachine, Que. Fournier and his employee, Gilles Levesque, were at the bottom of the trench at a depth of approximately 2.6 meters. The trench collapsed, engulfing Levesque. It had not been shored as per section 3.15.3 of the safety code for the construction industry.

Levesque’s death led the Crown to charge Fournier with criminal negligence causing death under the Criminal Code. Justice Dupras agreed with the judge presiding at the preliminary inquiry in accepting the Crown’s argument that failure to comply with Quebec’s safety code could constitute the underlying “unlawful act” requirement referred to in section 222(5)(a) of the Criminal Code. Essentially what has been established here is that failure to comply with provincial legislation meets the unlawful act requirement established in the Criminal Code. How many provincial cases deal with contraventions of the law? In a roundabout way, all of them.

The Court justified the conviction of manslaughter based on the following grounds.The accused, Fournier, committed an unlawful act by not solidly shoring the banks of the trench with quality material in accordance with the plans and specifications of an engineer as required by section 3.15.3 of the safety code for the construction industry. This unlawful act led to the fatality. By not shoring the slopes, Fournier’s conduct departed from the standard of care of a reasonable person in the same circumstances. The angle of the trench walls, the proximity of the excavated soil to the trench walls and the fact that the work required entry into the trench all made the risks of harm objectively foreseeable.

In a nutshell, a provincial regulation was contravened and that contravention led to a fatality. The individual directing the work departed from a reasonable standard of care. Based on the task being performed, the risks were foreseeable and preventative measures could have been put in place.

Employers and supervisors need to stand up and take notice. The courts are serious. As we have now seen, contravening health and safety legislation where there has been a fatality could lead to manslaughter charges under the Criminal Code of Canada, and penalties under the Code are nothing to shake a stick at.  

Employers, make sure that your safety system is truly a system where safety is taken seriously and integrated into all aspects of the organization. Safety responsibilities must be clear and concise. Workers perform better when they know what to do, when to it and what constitutes a job well done. Make sure there is a system in place for the selection and training of supervisors who know how to hold workers accountable.

Monitor work performance through direct observation. Schedule time in your day to observe the work that is being carried out as this provides you the best opportunity to commend positive safety performance and curb poor performance. And for goodness sake document your efforts.

The safety landscape in Canada is changing. Everyone deserves to go home safely at the end of the day and those who fail to provide a safe work environment may be facing stiffer penalties.

Jeff Thorne is manager of training at Occupational Safety Group.