In 2017 claims of manslaughter and criminal negligence causing death were brought against an excavation contractor in relation to the accidental death of one of his employees. Since then, the contractor has been found guilty on both charges,(1) and on 18 September 2018 he was sentenced to 18 months' imprisonment.(2)

Facts

On 3 April 2012 the contractor and an employee were replacing a sewer line when the walls of the trench collapsed, killing the employee instantly. The evidence adduced at the preliminary inquiry demonstrated that the accident took place because the contractor allowed the employee to perform the work without taking the mandatory security measures required by the applicable health and safety regulations and, as a result, the contractor was personally charged with manslaughter and criminal negligence causing death.

Decision

The trial took place between 27 November and 15 December 2017. According to the contractor's defence, the trench walls collapsed for the first time while the employee was installing the shoring systems in the trench, burying the employee's legs. A few minutes later, while the contractor was trying to free the employee, a second wall collapsed, burying the contractor up to the knees and fully submerging the employee's body.

The court rejected this version of events and accepted the Crown's theory that the trench walls collapsed only once, while both the contractor and the employee were in the trench without any shoring systems being installed. The firefighters and investigators from Quebec's workplace health and safety board, the Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST), who were on scene shortly after the accident, stated that the workplace presented an enormous hazard for the trench walls to collapse. Specifically, the CNESST investigators, as well as the Crown's experts, noted that there were numerous violations of health and safety regulations and dangerous conditions on the worksite.

Manslaughter The judge found that the Crown had proven, beyond a reasonable doubt, the following essential elements of the offence of manslaughter:

  • The contractor's conduct constituted an illegal act – as the employer, the contractor was obliged to ensure that the trench walls were secured in accordance with the requirements of Section 3.15.3 of the Safety Code for the Construction Industry before sending him into the trench, which he failed to do.
  • The contractor's conduct caused the death of a human being – the employee's death was the result of the contractor's failure to comply with the requirements of the Safety Code for the Construction Industry.
  • The illegal act was objectively dangerous – the Superior Court had already answered this question in the affirmative when it confirmed the contractor's committal to trial for the charge of manslaughter.
  • The contractor's conduct significantly departed from the conduct of a reasonable person in the same circumstances (the criteria applicable when the illegal act is a strict liability offence) – the court also answered this question in the affirmative, underlining the fact that:
    • even the firefighters refused to enter the trench without a proper shoring system being installed; and
    • both the inspectors and the Crown's experts agreed that the workplace was extremely hazardous.
  • A reasonable person would have foreseen the risk of bodily harm – according to the court, it was foreseeable given all the circumstances of the case.

Criminal negligence causing death The judge also found that the Crown had proven, beyond a reasonable doubt, the following essential elements of the offence of criminal negligence causing death:

  • The contractor was legally obliged to do or not to do something – pursuant to Section 217.1 of the Criminal Code, the contractor had a legal duty to take all reasonable steps to prevent bodily harm to the employee, whose work he had the authority to direct.
  • This action or lack of action caused the death of a human being – as previously established, the court determined that the employee's death was caused by the contractor's conduct.
  • The contractor's conduct displayed a wanton or reckless disregard for the lives or safety of other persons – the Court noted that the contractor's conduct displayed a total lack of consideration for its foreseeable consequences concerning the employee's safety.
  • The contractor's conduct significantly departed from the conduct of a reasonable person in the same circumstances – as previously established, the court determined that the question should be answered in the affirmative.

However, because multiple convictions for the same offence are prohibited, a conditional stay of proceedings was ordered with respect to the charge of criminal negligence causing death.

Sentencing

In September 2018 the parties returned to the court for sentencing. The Crown requested a three-year jail sentence, while the defence argued for a sentence of 90 days to be served intermittently along with a three-year probation, including 240 hours of community service and a C$5,000 fine.

The court stated that the sentence must not exceed what is just and appropriate, given the moral blameworthiness of the defendant and the gravity of the offence. In addition, it was possible and appropriate to consider the objectives of denunciation and general deterrence. The court held that the mere possibility of imprisonment would act as a larger deterrent than the overall length of the sentence.

With these considerations in mind – and considering the aggravating factors (including the fact that the contractor had previous convictions for health and safety violations) and mitigating factors of the file – the court sentenced the contractor to 18 months' imprisonment.

Comment

By sentencing the contractor to imprisonment – which is a first in Quebec legal history – the Court of Quebec has sent a clear message to employers concerning the importance of complying with their occupational health and safety obligations. Employers and supervisors are at risk of both provincial health and safety charges and criminal negligence and manslaughter charges; therefore, they should consult with legal experts on any questions concerning their health and safety obligations.(3)

For further information on this topic please contact Arianne Bouchard at Dentons by telephone (+1 541 878 8800) or email (arianne.bouchard@dentons.com). The Dentons website can be accessed at www.dentons.com.

Endnotes

(1) The decision on the merits was rendered on 1 March 2018 (2018 QCCQ 1071).

(2) R c Fournier, 2018 QCCQ 6747.

(3) For more information please see www.occupationalhealthandsafetylaw.com.

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