The Quebec Superior Court recently released a decision with broad implications for corporate employers, owners, managers and supervisors across Canada. In R. c. Fournier,[1] Justice Villemure held that an individual’s contravention of provincial health and safety legislation was an “unlawful act”, under section s. 222(5)(a) of the Criminal Code (“Code”) and therefore a basis for committal to trial under a criminal charge of manslaughter. This case involved the owner of a small construction company, who is now personally being charged with manslaughter arising from a workplace fatality. This is the first decision of its kind in Canada.
The decision must not only have been a shock for Mr. Fournier, the owner of a small construction firm, who had lost a worker in a tragic workplace accident, but also for criminal lawyers across Canada, since this is the first time this issue has been considered by the courts. It will be even more shocking for individuals, supervisors and employers, and others, bound to comply with provincial, strict liability health and safety laws. Since there were 852 workplace fatalities in Canada in 2015 – there were 852 potential opportunities for a contravention of health and safety laws to give rise to criminal manslaughter charges.[2]
What Happened in this Case
According to the Superior Court’s decision the facts of the case include the following:
- Lévesque and Mr. Fournier were working together at a construction project replacing in-ground sewer and water main lines;
- The Quebec Safety Code was applicable to the excavation that was taking place;
- Fournier and Mr. Lévesque were both working in an excavation on the day of the fatality;
- The walls of the excavation were not shored, and dirt and other material removed from excavation was placed too close to the edge of the excavation;
- Lévesque died when the walls of the excavation collapsed. He was working alone at the time of the collapse.[3]
Mr. Fournier was charged with two counts under the Code — criminal negligence for breach of the duty of persons directing work under section 217.1 thereby violating s. 220 of the Code, and manslaughter by unlawful act under section 222(5)(a) of the Code. There is no mention in the Superior Court decision about whether strict liability offences under the Quebec Safety Code were also laid against Mr. Fournier and what the outcome, if any of those charges were.
Following a preliminary inquiry, a judge committed Mr. Fournier to stand trial on both charges. Mr. Fournier challenged the committal to stand trial on the manslaughter charge.
What the Court Decided
Defence counsel argued that a breach of a safety law requirement should not to be interpreted as an “unlawful act” within the meaning of section 222(5)(a) of the Code. This was because the safety law itself could only be directly prosecuted as a strict liability offence. Defence counsel argued that importing a strict liability offence into the phrase “unlawful act” would undermine the need of the prosecutor to prove mens rea at the committal hearing. Defence counsel also argued that proper interpretation of the Quebec Safety code and the application of section 7 of the Charter would result in a Charter contravention if such an interpretation was allowed under section 222(5)(a) of the Code. It is noteworthy that the presumption of innocence and right to a fair trial, under s. 11(d) of the Charter, were apparently not raised or argued by the defence.
The prosecution, on the other hand, argued that an “unlawful act” under the Code need not be criminal in nature, but may come or be found in provincial legislation. The Crown asserted that because the Supreme Court in Creighton[4] held that the unlawful act may not be an absolute liability offence, it was open for a strict liability offence to fit within the definition of an “unlawful act”. The Crown also argued that the act of Mr. 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 a worker to be in an unshored, unprotected excavation. This finding is significant since the perception of dangerous is often in the eyes of the beholder. In this case Mr. Fournier was in the excavation, with the deceased before the incident, and apparently from his action felt “objectively safe”.
Justice Villemure conducted a thorough analysis of related jurisprudence and concluded that the judge presiding at the preliminary inquiry was right to commit Mr. Fournier to stand trial. However, Justice Villemure said that when a manslaughter charge is based on an act in violation of provincial legislation, the Crown must prove, beyond a reasonable doubt, the act of the accused was a “marked departure” from the conduct of a reasonable person in order for criminal liability to be imposed. The “marked departure” test is generally found in jurisprudence under criminal negligence not manslaughter cases.
The trial of Mr. Fournier on both the criminal negligence and the manslaughter charge is scheduled for November 27, 2017 in Montreal, Quebec.[5]
The “Unlawful Act” Problem
There is a serious potential difficulty with the judicial conclusion that evidence of a contravention of a provincial safety law amounts to an “unlawful act” as defined in the Code. The actus reus of a strict liability safety offence requires the same level of proof as a criminal charge — proof beyond a reasonable doubt. However, many safety provincial workplace health and safety statutes have equivalency provisions that permit the contravention of one provision, but the compliance with the other to achieve a positive safety result. Mere contravention of a safety rule does not necessarily mean there is proof beyond a reasonable doubt of a strict liability offence.
Further, Justice Villemure’s reasoning ignores the defence of due diligence to strict liability offences. The two branches of the due diligence offence – mistake of fact and every reasonable precaution – provide a complete defence where there has been a contravention of a statue or regulation that amounts to a strict liability offence. One can quite literally contravene the strict liability workplace health and safety rule and still be acquitted, in other words found “not guilty”. Accordingly, a violation of provincial legislation is not an “unlawful act” unless there has been a consideration and a decision regarding both branches of the defence of due diligence. The jurisprudence regarding the nature, scope and evidence that amounts to either of the two branches of the defence of due diligence was not considered by the court.
This judgement in Fournier certainly blurs the important characterization, distinction and purpose between criminal and strict liability offences. The decision also departs from the established legal analysis required to prove a strict liability offence, and practically and effectively disregards the availability of the two branches of the due diligence offence.
The Charter Problem That was not Fully Addressed
The defence raised a concern about how the section 7 Charter rights of Mr. Fournier may be ignored and compromised with proof of a safety Code violation amounting to an “unlawful act”, and may result in a manslaughter committal. It is not clear whether the Charter presumption of innocence in section 11(d) was considered or argued.
The Supreme Court has considered in Wholesale Travel Group, the difference between criminal and strict liability offences and why one may engage s. 11(d) rights to prevent a reverse onus and why one may not.[6] In that decision, the Supreme Court of Canada overturned the Court of Appeal of Ontario’s decision that given Charter jurisprudence, there should be no reverse onus for an accused in a strict liability defence because individuals are at risk of jail if they are not able to demonstrate the defence of due diligence. The Supreme Court, in a somewhat complex multi-judgement set of reasons, held that the reverse onus may indeed be a violation of the presumption of innocence, but was justified under Section 1 of the Charter.
A distinction was made by the Supreme Court between criminal and regulatory offences to support a conclusion that the latter have diminished Charter rights, in particular the justification of a reverse onus for a strict liability defendant to bear the onus of proving their innocence. Justice LaForest of the Supreme Court said the following regarding the characterization of criminal offences:
156 Criminal law is rooted in the concepts of individual autonomy and free will and the corollary that each individual is responsible for his or her conduct. It assumes that all persons are free actors, at liberty to choose how to regulate their own actions in relation to others. The criminal law fixes the outer limits of acceptable conduct, constraining individual freedom to a limited degree in order to preserve the freedom of others. Thus, the basis of criminal responsibility is that the accused person has made a deliberate and conscious choice to engage in activity prohibited by the Criminal Code. The accused person who is convicted of an offence will be held responsible for his or her actions, with the result that the opprobrium of society will attach to those acts and any punishment imposed will be considered to be deserved.
And for strict liability offences, Justice LaForest said of the potential defendant:
167 By virtue of the decision to enter the regulated field, the regulated person (here the appellant) can be taken to have accepted certain terms and conditions of entry. To paraphrase La Forest J., the procedural and substantive protections a person can reasonably expect may vary depending upon the activity that brings that person into contact with the state. Thus the extent of Charter protection may differ depending upon whether the activity in question is regulatory or criminal in nature.
The section 11(d) jurisprudence is fertile ground for a person in Mr. Fournier’s position. Placing an obligation on an accused, directly or indirectly, to prove a defence on a balance of probabilities, is inconsistent with the whole of common law and Charter jurisprudence with respect of the importance of presumption of innocence in criminal matters. To ignore this Charter right and jurisprudence, in an attempt to “shoehorn” strict liability offence into the phrase “unlawful act” in section 222(5)(a) of the Code, is inconsistent with the important distinctions between criminal and regulatory law set in Wholesale Travel Group.
The Unanswered Questions
As there is now a risk of manslaughter charges whenever there is a workplace death, there are at least three critical, unanswered questions arising from the Fournier decision:
- How can a judge find an “unlawful act” has been committed by a contravention of safety law if they have not considered the complete defence of due diligence which would render the act non-culpable?
- Does the jurisprudence under sections 7 and 11(d) of the Charter sufficiently protect the rights of the accused in a manslaughter charge when the alleged “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 dangerous act?
- Will this decision result in more joint prosecutions of strict liability and Criminal Code offences, in the same trial, so the Crown can avoid criticism of not first establishing the strict liability offence before arguing that manslaughter has been proven beyond a reasonable doubt?
The Fournier decision clearly blurs the lines between regulatory and criminal law. Individuals who may be acting in good faith, but lack the skills, training, or attention to detail that results in a workplace fatality will now be exposed to criminal liability. The practical concern for workers in dangerous circumstances is how can they cooperate with a provincial health and safety regulator in an investigation of a workplace fatality when any admissions of potential contraventions of provincial safety regulations may be the new basis for police to lay manslaughter charges?
It is clear that many Canadian jurisdictions are already taking a more aggressive approach to enforcing health and safety laws by laying more strict liability offences against corporate employers and individuals. It remains to be seen whether greater use of criminal charges of manslaughter and criminal negligence will improve safety prevention or just lead to more criminal litigation and convictions. The Wholesale Travel decision indicates that regulatory, strict liability offences are not intended to be punitive but rather promote regulatory compliance. It may be difficult to persuade a person facing life imprisonment for such a criminal charge that their “unlawful act” of a safety violation that their Charter rights have not been violated. The breath and scope of regulatory safety violations, when there is a workplace fatality, is no longer clear as a result of the decision in Fournier. What is clear, is that now those in charge of dangerous workplaces are at greater risk of criminal charges, in addition to regulatory charges, following a workplace fatality.
[1] 2016 QCCS 5456.
[2] Association of Workers’ Compensation Boards of Canada, “2015 Injury Statistics Across Canada”, online: <http://awcbc.org/?page_id=14>
[3] R. c. Fournier, 2016 QCCS 5456, at para 28
[4] R. v. Creighton, 1993 CanLii 61(SCC).
[5] R. c. Fournier, 2016 QCCS 5456.
[6] NTD – Cite needed