By Norm Keith
The Quebec Superior Court recently made a decision that will have broad implications for individuals and corporations in high-risk workplaces across Canada. Justice Louise Villemure dismissed a judicial review from the committal trial of Sylvain Fournier for a charge of manslaughter, arising from a workplace fatality. She held that a contravention of a duty on employers under the Quebec Safety Code may be an appropriate basis for a criminal charge of manslaughter. Fournier’s trial is scheduled for Nov. 27.
On April 3, 2012, Gilles Lévesque was working with Fournier at a construction project replacing in-ground sewer and water main lines. The walls of the excavation were insufficiently sloped and deposits from the excavation were placed on the rim of the banks. The walls ultimately collapsed, killing Lévesque.
Fournier was charged with two counts under the Criminal Code: criminal negligence and manslaughter. The judicial review only challenged the manslaughter charge.
The defendant raised concerns about the definition of “an unlawful act” in section 222(5)(a) of the Criminal Code. Counsel argued that a Quebec safety regulatory requirement ought not to be interpreted as an “unlawful act” since the safety law itself could only be directly prosecuted as a strict liability offence. The defendant argued that the importing of a strict liability offence into the phrase “unlawful act” would undermine the need of the prosecutor to prove mens rea of the criminal offence. Further, the defendant argued that proper interpretation of section 7 of the Charter of Rights and Freedoms and, in particular, the fundamental rights guaranteed by the charter would be contravened if such an interpretation was given under section 222(5)(a) of the Criminal Code.
The prosecution argued on the judicial review that the “unlawful act” need not be criminal in nature, but that it may derive its origins from provincial legislation. Further, the Supreme Court of Canada in the 1993 case R. v. Creighton held that the unlawful act may not be an absolute liability offence, leaving it open for a strict liability offence to fit within the definition of an “unlawful act.” The Crown argued that the act of Fournier was so objectively dangerous that a reasonable person would understand that they would be putting another at risk of harm if they directed or permitted such a worker as Lévesque to be in an unshored unprotected excavation.
The court ultimately concluded that there was sufficient evidence at the preliminary inquiry to establish:
•the Quebec Safety Code was contravened
•the offence is objectively dangerous
•the breach of the safety duty is a marked departure from the standard of care of a reasonable person who would have foreseen the risk posed by the failure to provide proper shoring of the excavation.
The committal for manslaughter was confirmed.
There is a serious concern with the decision that evidence supporting a contravention of a provincial safety law amounts to an “unlawful act.” Further, many safety statutes have alternative measures or equivalency provisions that permit the contravention of one provision but the compliance with the other to achieve a positive safety result. Therefore, the mere contravention of a safety rule, prior to or at the time of the safety incident, and without the benefit of a hindsight bias, does not necessarily mean there is proof of a strict liability offence.
Although it is counter intuitive to those not involved in strict liability offences, one can literally contravene a strict liability law, such as a safety code, and still be found “not guilty.” This is because of the availability of the due diligence defence. This defence arises from the historic compromise provided in a jurisprudence since there is no need to prove criminal intent or mens rea for strict liability offences. This judgement in Fournier ignores the availability of the two branches of the due diligence offence.
The accused also argued that the section 7 charter rights of Fournier may be compromised with the proof of a strict liability offence amounting to an “unlawful act” and may result in a manslaughter committal. However, this argument did not receive traction with the judge.
There are at least three, critical unanswered questions on the ruling in Fournier.
First, if a preliminary inquiry judge looks only at the safety code, but not the availability of a due diligence defence, how can he conclude that a potential “contravention” of the safety law is an “unlawful act”?
Second, does charter jurisprudence under section 7 and 11(d) sufficiently protect the rights of the accused in a similar manslaughter charge when the alleged “unlawful act” is not a criminal act and the mens rea test is to be viewed objectively, not subjectively, as it relates to the foreseeability of the dangerous act?
Third, will this decision result in more joint prosecutions of both strict liability and Criminal Code offences in the same trial, so the Crown can avoid criticism of not first establishing the strict liability offence before arguing that manslaughter has been proven beyond a reasonable doubt?
The Fournier decision blurs the lines between regulatory and criminal law. Individuals who may be acting in good faith but lack the skills, training or attention to make a workplace perfectly safe could now be expose to serious criminal liability. It is quite clear that jurisdictions across Canada are taking more aggressive approaches to enforcing health and safety laws. Those in charge of workplaces are now more at risk than ever for criminal charges as well as regulatory charges when workplace accidents and fatalities occur anywhere in Canada.
This article originally appeared in the April/May 2017 issue of COS.
Norm Keith, an OHS lawyer and consultant, is a partner at Fasken in Toronto. He can be reached at (416) 868-7824 or firstname.lastname@example.org
, or visit www.ehslaw.ca
for more information.