By Jeremy Warning
On Sept. 18, excavation contractor Sylvain Fournier was sentenced to 18 months in prison followed by two years of probation. This sentence was handed down after Fournier was found guilty of manslaughter under the Criminal Code for having caused a death by means of an “unlawful act.” His unlawful act was not complying with provincial health and safety legislation.
Fournier had also been found guilty of criminal negligence, however, he was only sentenced for the manslaughter offence, pursuant to a rule against multiple convictions for substantially the same offence. Both manslaughter and criminal negligence carry a maximum penalty of imprisonment for life, meaning sentencing him on one charge did not expose him to a greater or lesser penalty.
The events resulting in this sentence occurred in April 2012, when Fournier and several employees were replacing a sewer line. This required the excavation of a trench. Tragically, the trench collapsed causing the death of the worker who was in the trench and serious injury to Fournier.
At the sentencing hearing, the prosecution asked for a three-and-a-half year jail term, while the defence argued that a 90 day sentence, three years of probation, 240 hours of community service, and a charitable donation would be a fit sentence. In justifying its position, the defence argued that Fournier had already been stigmatized by the manslaughter conviction.
The court considered the following factors in issuing the 18 month sentence:
•Fournier’s prior health and safety violations
•Fournier’s own injuries that resulted from the trench collapse, which required 10 days of hospitalization.
The sentence imposed on Fournier will likely be influential in future cases involving individuals convicted of manslaughter or criminal negligence following a workplace accident. However, the Fournier decision is notable because it is the first of its kind: A person convicted of manslaughter for failing to comply with health and safety legislation. Sentences in subsequent criminal cases, arising from workplace accidents, will likely be measured against the penalty imposed on Fournier.
Fournier has appealed his manslaughter conviction. It is also possible that Fournier will appeal the sentence imposed on him. He has 30 days to do so.
This unique use of the criminal law to address workplace safety should serve as a reminder that businesses, their management, supervisors, officers and directors, as well as workers, can be prosecuted criminally following a serious workplace accident. Both the conviction and the tragedy that precipitated it reinforce the need for all businesses to have a vigorous health and safety system in the workplace.
This article was written with the assistance of Deanah Shelley and Jamila Bolahood, lawyers with Mathews Dinsdale & Clark in Toronto.
Jeremy Warning is a former OHS prosecutor who is now a partner at Mathews Dinsdale & Clark in Toronto. He can be reached at (647) 777-8284 or firstname.lastname@example.org
, or visit www.mathewsdinsdale.com
for more information.