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16 October 2018
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)
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.
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.
The judge found that the Crown had proven, beyond a reasonable doubt, the following essential elements of the offence of manslaughter:
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:
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.
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.
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 (email@example.com). The Dentons website can be accessed at www.dentons.com.
(2) R c Fournier, 2018 QCCQ 6747.
(3) For more information please see www.occupationalhealthandsafetylaw.com.
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