A general contractor has been found guilty of manslaughter after one of his employees was killed by being buried in a trench, marking the first time in Quebec that a breach of provincial occupational health and safety legislation served as the basis for a manslaughter conviction under the Criminal Code.
In a ruling lauded by health and safety lawyers and one of the province’s largest unions, Court of Quebec Judge Pierre Dupras found Sylvain Fournier, an excavation contractor, guilty of criminal negligence causing death under section 220(b) of the Criminal Code and manslaughter or involuntary culpable homicide under section 222(5)(a) of the Criminal Code, which provides that a person commits culpable homicide when he causes the death of a human being, “by means of an unlawful act.”
But while the Crown fulfilled its burden of proof on both counts, Judge Dupras issued a conditional stay of proceedings on the criminal negligence charge in respect of the Kienapple principle, emanating from the Supreme Court of Canada’s decision in R. v. Kienapple  1 S.C.R. 729], which in essence prohibits multiple convictions arising out of the same “cause or matter.” Fournier is scheduled to be sentenced in May.
“The majority of employers are mindful of health and safety (H&S) regulations they must respect but for those employers who are more delinquent towards their H&S obligations, this decision may lead to greater awareness over the consequences they may face,” said Laurence Bourgeois-Hatto, a Montreal H&S lawyer with Langlois Lawyers LLP. “It may as a result lead them to be more proactive towards H&S compliance.”
The Fédération des travailleurs et travailleuses du Québec too welcomed the verdict. In a statement issued after the ruling, it called on construction contractors to ensure the safety of their employees. “Let the message be clear: health and safety on construction sites is not negotiable since it can have serious consequences,” said the union.
On April 2012, Gilles Lévesque, one of Fournier’s employees, died on the job when the walls of a trench he was working in collapsed. Fournier suffered fractures in both legs and was hospitalized for 10 days.
Fournier, initially accused of criminal negligence, challenged the Crown when he was subsequently charged with an accusation of unlawful act manslaughter. But in Fournier c R. 2016 QCCS 5456, Quebec Superior Court Justice Guy Cournoyer concluded that a workplace death resulting from a violation of the Quebec Act respecting occupational health and safety could serve as the basis for an order to stand trial on a manslaughter charge under the Criminal Code. Justice Cournoyer held that the underlying unlawful act in a manslaughter charge can be a strict liability offence, including one related to occupational health and safety. Under these circumstances, it is however up to the Crown to prove, beyond a reasonable doubt, that the conduct of the accused constitutes a marked departure from that of a reasonable person.
Heeding guidance that spelt out a five-point test by Justice Cournoyer, Judge Dupras concluded that Fournier was guilty of manslaughter because his conduct was tantamount to an illegal act as he had breached a regulatory provision related to occupational health and safety. Evidence at trial, where 16 people testified, revealed that the walls of the trench were not adequately supported as required by Québec health and safety legislation. Further, dirt excavated from the trench had been piled too close to its edges, which caused the trench wall collapse, and in violation of s. 3.15.3 of the provincial Safety Code for the Construction Industry. That unlawful act caused Levesque’s death, held Judge Dupras.
Moreover the failure to bolster the walls of the trench was objectively dangerous and “represented a marked deviation from the conduct of a reasonable person,” added Judge Dupras in R. c. Fournier 2018 QCCQ 1071 issued on March 1st. Judge Dupras also found that the risk of the collapse of the walls was foreseeable and a reasonable person in the same circumstances would have foreseen a risk of injuries. Indeed, an inspector from the Committee on Standards, Equity, Health and Safety at Work described the situation as “scary,” and should have required an immediate work stoppage.
“Such conduct stands out by the indifference, detachment, disinterest and reveals a total absence of consideration towards foreseeable consequences,” said Judge Dupras.
According to Montreal health and safety lawyer Linda Lauzon, the ruling is a clear signal that employers need to increase due diligence efforts to ensure compliance with provincial health and safety legislation. “If industry is frightened following the decision, all the better,” said Lauzon of Monette Barakett LLP.
But Lauzon warns that the real impact of the decision will stem from the sentence that Fournier receives, which could be up to life imprisonment. Since Bill C-45 or the Westray Bill was enacted in March 2004, which established new legal duties for workplace health and safety, and imposed serious penalties for violations that result in injuries or death, it has become easier to bring criminal negligence charges in cases involving workers’ health and safety, points out Lauzon. The number of convictions has risen over the years, but Lauzon believes that employers have gotten off relatively lightly in terms of sentencing. “I’m eagerly looking forward to the sentence – that’s where we will see what kind of message the courts will send,” said Lauzon. “If he ends up in prison, that to me will have much more of an impact than a guilty plea.”
Bourgeois-Hatto does not believe that the decision will open the floodgates, but she warns that employers must nonetheless be aware that workplace fatalities can lead to charges not only of criminal negligence but also manslaughter.
Montreal criminal lawyer Brigitte Martin of Sylvestre & Associés LLP, who represented Fournier, told The Lawyer’s Daily that the decision may be appealed. She declined to comment on the decision.
This story was originally published in The Lawyer’s Daily