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Through the application of various sections set out in the Criminal Code (Code), it is established that an employer may be convicted for having caused the death of an employee on the job as a result of criminal negligence1. However, in a recent decision2, the Court of Quebec decided that the breach of occupational health and safety regulatory and legislative standards justified that an employer be convicted of manslaughter3. This case constitutes a breakthrough; employers now have a greater exposure to criminal liability when serious or fatal accidents occur on work premises.
In April 2012, an employee died on the job when the banks of a trench at the bottom of which he was performing sewer pipe replacement work collapsed and buried him. The company owner was also present at the time of the incident but sustained less serious injuries.
Criminal charges were laid against the company owner who was ultimately committed to stand trial on two counts: criminal negligence causing death and manslaughter.
After analyzing all the evidence at his disposal, the judge rejected the version of the events presented by the accused. In fact, according to the judge, it would appear that the deceased worker and the accused found themselves at the bottom of a trench that had not been shored in order to perform work without the safety measures required by the Safety Code for the Construction Industry4 being put into place.
Through these failings, the accused breached his obligation to take the necessary measures to protect the health and ensure the safety and physical well-being of the worker5. That being established, the judge listed the elements that the Crown must establish beyond a reasonable doubt to prove the guilt in connection with an indictment of manslaughter as follows:
The conduct which constitutes an unlawful act;
This conduct caused the death of a human being;
The unlawful act was objectively dangerous;
Since this is a strict liability offence, it must establish that the conduct of the accused constitutes a marked departure from the conduct of a reasonable person in the same circumstances;
Finally, considering all the circumstances, a reasonable person would have foreseen the risk of bodily harm.
In short, the evidence that the accused failed to comply with the Safety Code for the Construction Industry was the key factor that allowed the prosecution to meet its burden of proof regarding the charge of manslaughter.
Regarding the charge of criminal negligence, the judge mentions that the accused, by omitting to comply with the above-mentioned regulatory and legislative obligations, showed wanton or reckless disregard for the life and safety of the deceased employee. Although the accused is also convicted of criminal negligence, the rule prohibiting multiple convictions results in a conditional stay of proceedings on this indictment.
There is now a new and greater exposure to criminal liability in an occupational health and safety context. Violations of certain provisions of the provincial legislation on occupational health and safety may now expose employers or persons directing work to a charge of manslaughter, as well as of criminal negligence.
1 Criminal Code, RSC 1985, c. C-46, s. 220(b)
2 R. v. Fournier, 2018 QCCQ 1071
3 Criminal Code, RSC 1985, c. C-46, s. 222(5)a)
4 Safety Code for the Construction Industry, CQLR c. S-2.1, r 4, s. 3.15.3
5 An Act respecting occupational health and safety, CQLR c. S-2.1, s. 51, 236, 237.
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