Burden of proof less than that for criminal negligence: Expert
In a first for Canada, an employer has been convicted of manslaughter in relation to an occupational health and safety incident. And the conviction could mean other cases already before the courts face the same fate, according to one expert.
The case involved Sylvain Fournier, owner of an excavation company who was on-site in Montreal with several employees in 2012 replacing a sewer line. This involved excavating a trench, but when the trench’s walls suddenly collapsed, one of the workers, Gilles Lévesque, was buried beneath the earth and died.
Fournier was charged with criminal negligence causing death for not taking the required measures to prevent bodily harm in directing the work done by his employee. He was also charged with causing the death of Lévesque.
In a March 1 decision, a judge found Fournier’s behaviour constituted an “unlawful act” that was “objectively dangerous” and was responsible for the worker’s death. The contractor’s behaviour also showed a significant lack of judgment compared to that of a reasonable person in the same circumstances.
“The conduct of the accused constitutes an unlawful act, a clear contravention of the obligations set out in section 3.15.3 of the Safety Code for the construction industry, in that the accused… did not ensure that the walls of the trench in question were securely stanched with the materials required,” said Judge Pierre Dupras (translated).
The Quebec court also ruled that Fournier failed to fulfil his legal duty to protect the health and safety of his employee and showed wanton or reckless disregard for the employee’s safety.
“The behaviour in question is distinctly characterized by indifference, detachment and disinterestedness, and reveals a complete lack of consideration of its foreseeable consequences,” said Dupras.
“None of the measures imposed by regulation or by law have been put in place to ensure the safety of Mr. Lévesque. Moreover… the accused paid no attention to this serious and obvious risk to the safety of Mr. Lévesque that he himself created.”
It’s the first time in Quebec where an employer in the construction industry has been accused of both criminal negligence and manslaughter, said Laurence Bourgeois-Hatto, a lawyer at Langlois in Montreal.
“Usually what happens when there’s a worker who is severely injured or dies while performing the job, there are accusations based on the regulations, the Act respecting occupational health and safety… and you can receive a fine.”
But the facts did not help Fournier, she said.
“There were a lot of witnesses at the trial, and inspectors from the OHS (occupational health and safety) commission that said, ‘You know, it was clearly dangerous. If we had walked by and seen that hole how it was, we would have stopped the work and evacuated from there. It was super dangerous. It was a catastrophe waiting to happen.’”
The non-compliance with the Safety Code for the construction industry was so bad that the court concluded a reasonable person placed in the same circumstances would have known there was extreme danger for the employee’s safety, said Josée Gervais, a partner at Gowling in Montreal.
“That’s not to say any contravention of the code would result in a similar (result), but here, because of the facts and because of the circumstances and consequences, it was considered illegal. The death was caused directly by this conduct, and the courts said that the conduct of Mr. Fournier was objectively dangerous — someone would have concluded that it was dangerous and that his conduct also did not represent the actions of a reasonable person placed in the same circumstances.”
The ruling reminds employers of how important it is to follow OHS rules, she said.
After a gas explosion killed 26 miners in 1992 in Nova Scotia, the federal government adopted Bill C-45 to make it an offence of criminal negligence to put workers’ health and safety at risk.
And in 2004, the Criminal Code was again modified so it was easier to prosecute organizations for criminal negligence when they demonstrated marked negligence related to health and safety, said Gervais.
The Fournier decision piggybacks what happened in 2004 when criminal negligence around occupational health and safety was included in the Criminal Code of Canada, said Jeff Thorne, manager of training and consulting at Occupational Safety Group in London, Ont.
“But, to me, this case is even more important because the burden of proof is even less.”
For an individual or organization to be charged and convicted of manslaughter, the burden of proof rests with the Crown, he said, and they must prove, beyond a reasonable doubt, that:
•the accused committed a strict liability offence and 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.
In the Fournier case, the safety code was contravened by not shoring the slopes of the trench.
The contravention was objectively dangerous, and the contravention or breach of safety duty in this case was “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,” said Thorne.
In looking at what’s required to establish a manslaughter charge, the three conditions are very similar to what’s seen in many health and safety cases today, he said.
“The waters are muddied a little bit because we’re now taking strict liability legislation like the Occupational Health and Safety Act and saying, ‘Well, if there’s a breach of the act and the breach led to a dangerous activity, and that’s the first condition leading to manslaughter, that can get a little messy between provincial legislation and the Criminal Code,’” he said.
“But the fact that they’ve established this and the fact we’ve had a conviction now, we’ve got case law, we’ve got case precedent now, it’s going to be interesting to see how judges interpret this.”
Looking at any Ministry of Labour cases in Ontario and the three criteria for manslaughter, “you could pick apart a lot of cases and say, ‘Hey, these could meet those three,’” said Thorne.
And, potentially, the Crown could go for a manslaughter conviction instead of criminal negligence because it’s easier, he said.
“Those three conditions fit a lot of health and safety cases where trying to prove mens rea and intent and wilful neglect for criminal negligence causing death could be a little more difficult.”
It’s an interesting suggestion — and possible, said Gervais.
“There’s not a big difference in between (criminal negligence and manslaughter criteria) but, oddly enough, it’s the first time that there’s really been a judgment rendered for manslaughter in those circumstances, whereas there have been some convictions under 217.1 (of the Criminal Code).”
And it’s true there could well be other cases before the courts that meet the manslaughter criteria, she said.
“There were new sections in the Criminal Code that were really meant to address health and safety contraventions under the criminal aspect of it. I think maybe it was more natural to go down that route, but for the next cases, I think the Crown will really consider using both or using only the manslaughter.”
But Bourgeois-Hatto doesn’t think there will be many more cases like this.
“I think it’s probably an exception. Now that we have this in mind and now that the prosecutors know they can succeed, maybe they will go this way more often, but I think that most employers are sensible to health and safety, and they do their best, and I think that sometimes accidents happen.”
Either way, if supervisors are not doing their job properly and exercising competency, then the liability can be huge, said Thorne.
“If they’re not balancing their efforts between safety and production, or whatever the other key performance indicators are, and safety is not made part of it, then if something goes sideways or a worker gets injured or worse, essentially what the courts are saying is the penalties could potentially be a lot stiffer if it meets these three conditions.”
The landscape itself is changing, he said.
“This really should, for employers and supervisors, basically say to them ‘There could be potentially very serious consequences here’ because the penalties are a lot more substantial, at least from a jail perspective.”