The accused’s behaviour was a \’marked and substantial departure\’ from that expected of a reasonable person
By Jeremy Warning

On March 1, the Court of Quebec found excavation contractor, Sylvain Fournier, guilty of manslaughter under the Criminal Code. In convicting Fournier, the court found that he had committed an “unlawful act” by not complying with provincial health and safety legislation. The decision applies provincial health and safety laws in a new way in a criminal prosecution. The events resulting in the charges occurred in April 2012, when Fournier and several employees were replacing a sewer line. This required the excavation of a trench. Evidence indicated numerous issues with the trench, including: walls that had not been sloped, the absence of shoring, the placement of excavated earth directly on the rim of the trench, and a failure to have an excavation protocol. Each of these issues constituted a safety hazard and breach of Quebec’s health and safety legislation. Tragically, the trench collapsed while a worker was working in it. The worker was in the deepest part of the trench, which was over 8 feet deep. The police investigated the accident and Fournier was charged with criminal negligence.

A preliminary inquiry was held for Fournier’s charges. During the preliminary inquiry, Fournier was committed to trial on the criminal negligence charge but, the Crown also successfully asked to have him committed on a manslaughter charge based on breaches of the Quebec Safety Code for the Construction Industry and An Act Respecting Occupational Health and Safety.

Fournier challenged his committal on the manslaughter charge by arguing that a breach of the safety code could not constitute the “unlawful act” the Crown must prove in order to convict him of manslaughter. The Superior Court of Quebec, on judicial review, however, determined that a breach of the act or safety code could form a basis for a manslaughter charge, assuming the Crown proved that the accused’s behaviour amounted to a “marked and substantial departure” from the behaviour expected of the reasonably prudent person in the same circumstances.

The trial
Fournier stood trial on both the criminal negligence and manslaughter charges. He testified at his trial and provided evidence about the sequence of events before and after the collapse.

The court compared Fournier’s version of events against evidence from other witnesses, which included emergency responders and members of the public. The court found significant discrepancies between what Fournier said happened and the accounts of others. Ultimately, the court determined that Fournier’s evidence lacked honesty and reliability and rejected his account in its entirety.

The evidence accepted by the court established that both Fournier and the worker entered the trench together in order to carry out the required work, notwithstanding the fact that the measures prescribed by the safety code were not followed. The court also noted that, after the collapsed that trapped him, Fournier made a number of calls on his cellphone. None of those calls were to 911 despite the worker having been buried in the collapse. The rejection of Fournier’s version of events and his failure to summon emergency assistance resulted in the court drawing inferences supporting the conclusion that Fournier had acted illegally. The court does not elaborate on the inferences. We assume the court means that Fournier knew he had not complied with the act and the safety code and that is why he did not immediately summon emergency assistance following the collapse of the trench.

In determining that the Crown had proven Fournier guilty of manslaughter, the court affirmed the Superior Court’s earlier determination that, in order to obtain a conviction on the charge, the Crown was obligated to establish that Fournier’s failure to firmly support the walls of the trench and ensure that the work was performed in a manner that was safe, as required by the safety code, constituted a “marked departure from the conduct of a reasonable person who should have foreseen the risk.”

The court determined that Fournier had engaged in an unlawful act in breaching the obligations set out in the safety code; that this behaviour had caused the death of the worker; that the unlawful act was objectively dangerous; that the conduct of the accused represented a marked departure from the conduct of a reasonable person in the same circumstances; and that a reasonable person in the circumstances would have foreseen the risk of injury.

The court’s findings with respect to Fournier’s “marked departure” from the conduct of a reasonable person relied upon the evidence of several witnesses. These witnesses, who included the first responders and government regulators from the CNESST, expressed concerns about the depth and walls of the trench and the fact that no shoring had been utilized. Indeed, the representative of the CNESST characterized the situation as meriting an immediate stoppage of work.

Implications
This is the first decision in which non-compliance with health and safety legislation has resulted in a manslaughter conviction. In that respect, it is a new, and potentially frightening, application of health and safety laws within criminal proceedings. Prior to the Fournier case, health and safety legislation was considered in a criminal negligence prosecution where it was used to identify the reasonable steps that could be taken to prevent bodily harm. With only one case as the sample size, it may be early to draw too many conclusions about what this decision means for the regulation of workplace health and safety.

That said, the requirement that the Crown prove a “marked departure” suggests that this decision does not represent a different or lesser standard to prove criminality following a workplace accident. This is the same threshold the prosecution is required to prove to establish someone is guilty of criminal negligence which suggests that the culpability analysis is likely to be very similar — if not identical. Where some variation may be found is in the differences between health and safety laws across Canada. While the Criminal Code applies nationally, Canadian health and safety legislation can have differing requirements from jurisdiction to jurisdiction. Does this mean that the potential to be charged with manslaughter could vary depending on the requirements of applicable health and safety laws? That likely remains to be seen but what can certainly be taken from Fournier is a reminder that compliance with applicable health and safety laws should minimize risks on many fronts.

Fournier has not yet been sentenced. Both manslaughter and criminal negligence carry a maximum penalty of imprisonment for life meaning the staying of one charge has not exposed him to a greater or lesser penalty. It remains to be seen what, if any, impact a conviction for manslaughter (instead of criminal negligence) may have on the penalty imposed or if Fournier will appeal the conviction. We will continue to monitor and report on this very interesting decision.

This article was co-authored by Deanah Shelly and Sydney Kruth, both associates at Mathews Dinsdale and Clark in Toronto