Canada: Prison-Time For A Contractor For Manslaughter: A First In Quebec Legal History

Last Updated: October 3 2018
Article by Arianne Bouchard

Last year, we discussed on this blog, the case of an excavation contractor who was facing criminal negligence causing death and manslaughter charges in relation with the accidental death of one of his employees. Since then, that contractor has been found guilty on both charges1, and on September 18, 2018, he was sentenced to 18 months in prison2.

It is worth briefly reviewing the underlying facts of this case. On April 3, 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 tended to demonstrate that such accident took place because the contractor let his employee 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 criminal negligence causing death and manslaughter.

The trial took place from November 27 to December 15, 2017. According to the contractor's defense, the trench walls collapsed a 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 the events and rather accepted the Crown's theory that the trench walls only collapsed once, while both the contractor and his employee were in the trench without any shoring systems being installed. Both the firefighters and the investigators from the Commission des normes, de l'équité, de la santé et de la sécurité du travail (the "CNESST" – Quebec's workplace health and safety board) who were on scene shortly after the accident, stated that the workplace presented an enormous hazard for the trench walls to collapse. More specifically, the investigators of the CNESST, as well as the Crown's experts, noted that there were numerous violations of health and safety regulations and dangerous conditions on the work site.

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

  • The contractor's conduct constituted an illegal act. As the employee's employer, the contractor had the obligation 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 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 placed in the same circumstances (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 go in the trench without a proper shoring system being installed and that 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 very foreseeable given all the circumstances of the case.

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

  • The contractor had the legal obligation to do or not to do something. Pursuant to section 217.1 of the Criminal Code, the contractor was under a legal duty to take all reasonable steps to prevent bodily harm to the employee whose work he had the authority to direct.
  • This act or omission 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 placed in the same circumstances. As previously established, the Court determined that the question should be answered in the affirmative.

However, it should be noted that because of the rule against multiple convictions for the same offence, a conditional stay of proceedings was ordered with respect to this charge of criminal negligence causing death.

The parties were back in Court this September for sentencing. The Crown requested a 3-year jail sentence while the defense argued for a sentence of 90 days to be served intermittently along with a 3-year probation, including 240 hours of community services, and a $5,000.00 fine.

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

With these considerations in mind, and considering the aggravating factors (including that the contractor had previous convictions for health and safety violations) and mitigating factors of the file, the Court found it was appropriate to impose an 18-month jail sentence on the contractor.

One thing is certain, by imposing prison time on this contractor, which is a first in Quebec legal history, the Court of Quebec certainly wanted to send a clear message to all 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. We invite you to consult with our team of legal experts for any question you might have concerning your health and safety obligations.

R. c. Fournier, 2018 QCCQ 6747

Footnotes

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

2 2018 QCCQ 6747.

For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com

About Dentons

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Specific Questions relating to this article should be addressed directly to the author.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
23 Oct 2018, Other, Toronto, Canada

Dentons and SheEO are coming together for an evening of #radicalgenerosity on October 23, 2017. Meet Vicki Saunders, Founder of SheEO, and learn about how SheEO is changing the landscape for female entrepreneurs.

23 Oct 2018, Seminar, Montreal, Canada

Dentons is pleased to invite you to join us for a breakfast seminar as part of the Les Matinées Dentons series on issues relevant to you and your business.

24 Oct 2018, Other, Toronto, Canada

If you build it, claims may come. Join the Dentons Construction group for breakfast and an informative discussion on current topics in construction law.

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions