THE EMPLOYERS' EDGE
Increased Criminal Liability for a Breach of Provincial Health and Safety Law
Perhaps, according to the recent decision in R. v. Fournier! In April 2012 a workplace accident from a collapsed trench wall resulted in a fatality. It was determined that the accident occurred because of a breach of Quebec’s health and safety legislation. The owner of the excavation company that employed the worker was charged.
In a preliminary inquiry, a judge committed the accused to trial for criminal negligence causing death (previous Bill C-45 which added section 217.1 to the Criminal Code) but also held that breach of the province’s health and safety legislation could support a committal to trial for manslaughter. Manslaughter, which is involuntary culpable homicide, and in part relies on a death that has been caused by means of “an unlawful act”. The accused, Mr. Fournier, challenged the second committal to trial of manslaughter questioning whether a breach of a provincial Act could amount to the required “unlawful act”. On October 31, 2016, on review by the Quebec Superior Court, the court found that it could. The court concluded that the preliminary inquiry judge was right to commit the accused to trial also on the charge of manslaughter. In part, it was stated that the judge was of the opinion that the “unlawful act” contributed materially to the death of the worker and that it was "objectively dangerous in the sense that a reasonable person would understand that there was a risk of harm". She also found that a reasonable person would have foreseen the risk of death involved in the unlawful act because of the clearly established risk of collapse.
The committal to trial on the charge of manslaughter was upheld based on the fact that the act did not need to be a criminal act, but could be based on the objectively dangerous unlawful act under a provincial statute or regulation.
The Superior Court did point out however, that when the “unlawful act” on which a charge of manslaughter is based is a breach of a provincial safety statute, the Crown must show beyond a reasonable doubt that the conduct of the accused amounted to a “marked departure” from the conduct of a reasonable person in order for criminal liability to be imposed.
It would appear that in such circumstances, the prosecution would be required to establish: (1) that a fatality occurred due to a breach of the provincial health and safety laws; (2) the conduct of the accused was a marked departure from the conduct of a reasonable person in the same circumstances; and (3) that there was a reasonable foreseeability that bodily harm could occur.
The trial in this matter is set to take place in November 2017, and we will provide a further update when the outcome is known. For now however, employers and supervisors should use this opportunity to make sure all workers are working in compliance with health and safety laws and regulations, that steps are taken to document those efforts, and that a review of training, policies and procedures are in place to ensure compliance and to establish due diligence. Click here for a list of CCP team members who can assist you with your workplace health and safety legal issues.