Canadian Safety Reporter

4 Canadian HR Reporter, a Thomson Reuters business 2017 CSR | May 2017 | News On April 3, 2012, Gilles Lévesque was working with Fournier at a construction proj- ect replacing in-ground sewer and water main lines. The walls of the excavation were insuf- ficiently sloped and deposits from the excavation were placed on the rim of the banks. The walls ultimately collapsed, kill- ing Lévesque. Fournier was charged with two counts under the Criminal Code: criminal negligence and manslaughter. The judicial re- view only challenged the man- slaughter charge. Fournier raised concerns about the definition of "an un- lawful act" in s. 222(5)(a) of the Criminal Code of Canada. Counsel argued that a Quebec safety regulatory requirement ought not to be interpreted as an "unlawful act" since the safety law itself could only be directly prosecuted as a strict liability offence. The defendant argued that the importing of a strict li- ability offence into the phrase "unlawful act" would undermine the need of the prosecutor to prove mens rea of the criminal offence. Further, Fournier ar- gued that proper interpretation of s. 7 of the Charter of Rights and Freedoms and, in particular, the fundamental rights guar- anteed by the charter would be contravened if such an interpre- tation was given under s. 222(5) (a) of the Criminal Code. The prosecution argued on the judicial review that the "un- lawful act" need not be criminal in nature, but that it may derive its origins from provincial leg- islation. Further, the Supreme Court of Canada in the 1993 case R. v. Creighton held that the unlawful act may not be an ab- solute liability offence, leaving it open for a strict liability of- fence to fit within the definition of an "unlawful act." The Crown argued that the act of Fournier was so objectively dangerous that a reasonable person would understand that they would be putting another at risk of harm if they directed or permitted such a worker as Lévesque to be in an unshored unprotected excavation. The court ultimately con- cluded that there was sufficient evidence at the preliminary in- quiry to establish: • The Quebec Safety Code was contravened. • The offence is objectively dan- gerous. • The breach of the safety duty is a marked departure from the standard of care of a reason- able person who would have foreseen the risk posed by the failure to provide proper shor- ing up of the excavation site. The committal for manslaugh- ter was confirmed. There is a serious concern with the decision that evidence supporting a contravention of a provincial safety law amounts to an "unlawful act." Further, many safety statutes have alter- native measures or equivalency provisions that permit the con- travention of one provision but the compliance with another to achieve a positive safety result. Therefore, based in this prac- tice, the mere contravention of a safety rule, prior to or at the time of the safety incident and with- out the benefit of a hindsight bias, does not necessarily mean there is proof of a strict liability offence. Although it is counter in- tuitive to those not involved in strict liability offences, one can literally contravene a strict li- ability law, such as a safety code, and still be found "not guilty." This is because of the availabil- ity of the due diligence defence. This defence arises from the historic compromise provided in jurisprudence since there is no need to prove criminal intent or mens rea for strict liability offences. The Quebec Superior Court's judgment in Fournier ig- nores the availability of the two branches of the due diligence offence. Fournier also argued that his s. 7 charter rights may be com- promised with the proof of a strict liability offence amount- ing to an "unlawful act" and may result in a manslaughter com- mittal. However, this argument did not receive traction with the judge. Unanswered questions There are at least three critical unanswered questions on the ruling in Fournier. First, if a preliminary inquiry judge looks only at the safety code but not the availability of a due diligence defence, how can she conclude that a potential "contravention" of the safety law is an "unlawful act"? Second, does charter juris- prudence under ss. 7 and 11(d) sufficiently protect the rights of the accused in a similar man- slaughter charge when the al- leged "unlawful act" is not a criminal act and the mens rea test is to be viewed objectively, not subjectively, as it relates to the foreseeability of the danger- ous act? Third, will this decision result in more joint prosecutions of both strict liability and Criminal Code offences in the same trial, so the Crown can avoid criti- cism of not first establishing the strict liability offence before arguing that manslaughter has been proven beyond a reason- able doubt? The Fournier decision blurs the lines between regulatory and criminal law. Individu- als who may be acting in good faith but lack the skills, training or attention to make a particu- larly workplace perfectly safe could now be exposed to serious criminal liability. It is quite clear that jurisdictions across Canada are taking more aggressive ap- proaches to enforcing health and safety laws. Those in charge of workplaces are now more at risk than ever for criminal charges as well as regulatory charges when workplace accidents and worker fatalities occur anywhere in Canada. For more information see: • R. v. Fournier, 2016 Car- swellQue 10711 (C.S. Que.). • R. v. Creighton, 1993 Carswel- lOnt 115 (S.C.C.). Norm Keith, an OHS lawyer and consultant, is a partner at Fasken Martineau DuMoulin in Toron- to. He can be reached at (416) 868-7824 or nkeith@fasken.com, or visit www.ehslaw.ca for more information. This article originally ap- peared in the April/May 2017 issue of Canadian Occupational Safety, a sister publication of Ca- nadian Safety Reporter. OHS < pg. 1 Contravention of safety rule vs. unlawful act Credit: Shutterstock/Sutichak

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