The criminal aspect of a breach of duty to not endanger employee health and safety

On September 27, 2010, Justice Denis Lavergne of the Court of Quebec found that a business owner was guilty of criminal negligence causing death after a backhoe he was driving fatally struck an employee.^[i]

The Court was asked to determine whether the defects discovered on a backhoe after an accident resulted from a breach of duty by the owner and, if so, whether that breach should be considered “criminal negligence” under section 219 of the Criminal Code.

The defendant, Pasquale Scrocca, operates a landscaping business called Paysagiste Dollard.  While he was using a backhoe around the edge of a commercial building, the brakes failed and the vehicle fatally struck an employee.

The evidence showed that the braking system had serious defects, and the expert reports presented by the prosecution identified 14 other anomalies, confirming that the backhoe was in very poor mechanical condition.

The evidence also showed that the defendant maintained and serviced the vehicle himself, entrusting only major repairs to the dealer who had sold it to him.  Moreover, the defendant said during his testimony that there had been no incentive to carry out a general inspection of the vehicle, so he never had one performed. The braking system therefore had not been repaired or inspected for at least the five years preceding the accident. The defendant testified, however, that he was unaware of the  braking system defects, that nothing had given him reason to suspect the presence of major anomalies, and that he could therefore not possibly have known about the potential hazards.

Regarding the material element (actus reus) of the offence of criminal negligence, the Court pointed out that while there were no regulations imposing periodic vehicle inspections, the defendant was required to ensure that the backhoe could be used without risk of endangering the safety of others.  From the evidence, the Court concluded that the vehicle was poorly maintained by the defendant and was, for all useful purposes, not serviced.  The defendant had therefore placed himself in a situation where he could not know the effects of, and the inherent risks arising from, braking system wear and tear.

As for moral intent (mens rea), the Court had to determine whether the defendant had shown a wanton and reckless disregard for the life and safety of others, i.e., whether the defendant's conduct represented a marked and significant departure from that of a reasonably prudent person. If the answer was yes, it had to assess the defendant's conduct in order to determine whether a reasonable person, placed in the same situation, would necessarily have been aware of the risk arising from such conduct.

The Court concluded that an ordinarily prudent person who used a heavy vehicle for his work would, in fact, be aware of the risks associated with a defective braking system and the importance of regular vehicle inspections. The Court therefore held that the defendant had shown blindness and a flagrant lack of diligence. Furthermore, because of that serious lack of diligence, the argument that he was not aware of the defective mechanical condition of the backhoe was declared inadmissible.  

The Court also dealt with section 217.1 of the Criminal Code. This recent provision, while it does not create an offence, confirms that anyone responsible for work is under a duty to take all necessary steps to ensure the safety of others. It therefore facilitates proof of criminal negligence charges against corporations or organizations.

In this instance, there was no need to use section 217.1 of the Criminal Code: the Court found the defendant guilty under section 219 of the Criminal Code because the prosecution had proven, beyond a reasonable doubt, all constituent elements of the offence of criminal negligence.

This decision is the first relating to criminal negligence in the workplace to involve an individual who offered a defence against the charge. The decision is in keeping with the direction taken by both the Quebec legislature - with the passage of the latest amendments to the Act respecting occupational health and safety - and the courts to punish worker health and safety offences.  

Employers can therefore no longer rely solely on compliance with expressly covered legal duties to defend themselves against this type of criminal charge. Instead, as persons who undertake, or have the authority, to direct how another person does work or perform a task, employers will have to have taken all “reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.”  It is important to stress, however, that although no legal provision specifically states that  employers must maintain the work equipment that they provide, they must ensure that the equipment is in good working condition and can be used without endangering employee health and safety.

[i] R. c. Scrocca, 2010 QCCQ 8218