Canadian Safety Reporter

to the Newfoundland and Lab- rador Supreme Court. DTW did not appeal its convictions. Car accident not proof of offences: Appeal court The provincial Supreme Court found that the trial court's deci- sion was focused on the fact that the accident happened, which the trial court determined es- tablished the actus reus — the objective fact — of the safety offences. This shifted the bur- den of proof to the employers to establish due diligence, with- out which they would be found guilty of the safety offences. However, the appeal court found the trial court commit- ted legal errors in taking this approach. It agreed that in such cases where the offences "are regulatory or public welfare of- fences" that are considered strict liability offences, there doesn't have to be proof of wrongful intention. Instead, proof of the wrongful act alone constitutes prima facie proof of the offence. In such circumstances, however, proof of due diligence in an at- tempt to avoid the wrongful act can avoid liability, said the ap- peal court. The appeal court found that each of the charges the city faced had its own factual elements that required proof of due diligence or a failure thereof — "they will not automatically be the same for each offence." The trial court had found that it was the actions of the employees performing their work that caused traffic to slow down and drive inconsis- tently, which contributed to the accident and established the ob- jective fact of the offence of fail- ing to provide a safe workplace. However, the trial court applied this fact to all the other charges, which was incorrect, said the ap- peal court. The appeal court noted that the objective fact of an occupa- tional health and safety offence is usually committed whether an accident happens or not — an ac- cident is just a possible outcome as a result of the offence. For ex- ample, a failure of an employee to wear a safety belt is a safety violation, regardless of whether the employee falls or not. It isn't the fall that is the offence. There- fore, using the car accident as the basis for proving the charges was not the right approach, said the appeal court. "While in some circumstanc- es an accident may provide some evidence of the actus reus of an offence, this is simply a matter of common sense and circumstan- tial evidence," said the appeal court. "It is of course true, as it was in this case, that an accident or incident may well provide the impetus for an investigation and the laying of charges, but the ac- cident does not thereby become an element of the offence in question." The appeal court found the conclusion that the vehicle strik- ing the employees during their road inspection served as proof of the offences for which the city was charged was an error, espe- cially when this was applied to all of the charges. "Since this approach, with its emphasis on the consequences of any breach rather than on the identification and proof of the actual element of each breach, permeated the whole conduct of the trial and the adjudication itself, the convictions cannot stand," said the appeal court. "Proof of the actus reus of each offence was found on a faulty legal premise and without differ- entiation between the counts." The provincial Supreme Court set aside the convictions against the City of St. John's and ordered a new trial to consider the "particulars of the facts" that are specific to the city and each charge. For more information see: • R. v. St. John's (City), 2016 Car- swellNfld 194 (N.L. T.D.). ©2016 Thomson Reuters Canada Ltd ISBN/ISSN: 978-0-7798-2810-4 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, photocopying, recording or otherwise without the written permission of the publisher (Carswell, a Thomson Reuters business). Canadian Safety Reporter is part of the Canadian HR Reporter group of publications: • Canadian HR Reporter — www.hrreporter.com • Canadian Occupational Safety magazine — www.cos-mag.com • Canadian Payroll Reporter — www.payroll-reporter.com • Canadian Employment Law Today — www.employmentlawtoday.com • Canadian Labour Reporter — www.labour-reporter.com See carswell.com for information Safety Reporter Canadian www.safetyreporter.com Published 12 times a year by Thomson Reuters Canada Ltd. Subscription rate: $129 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5106 E-mail: carswell.customerrelations @thomsonreuters.com Website: www.carswell.com One Corporate Plaza 2075 Kennedy Road Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media Karen Lorimer Publisher/Managing Editor Todd Humber Lead Editor Jeffrey R. Smith Assistant Editor Mallory Hendry Contributing Editor Liz Bernier Marketing & Audience Development Manager Robert Symes rob.symes@thomsonreuters.com (416) 649-9551 Circulation Co-ordinator Keith Fulford keith.fulford@thomsonreuters.com (416) 649-9585 CSR | July 2016 | News WEBINARS Interested in learning more about safety and HR issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as building strong safety leadership, engaging managers and supervisors to ensure OHS compliance, and building a better joint health and safety committee. Visit www.cpdcentre.ca/cos for more information. City's conviction < pg. 5 Accident itself isn't proof of each safety offence e appeal court found that each of the charges had its own factual elements that required proof of due diligence.

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