On Sept. 18, Sylvain Fournier, a Quebec based contractor, was sentenced to 18 months in prison followed by two years of probation. Fournier had been found guilty of manslaughter under the Criminal Code relating to a workers death by means of a breach of Quebec safety code. The case is the first of its kind in Canada and raises serious concerns about the use of criminal law to enforce provincial regulatory safety standards.
On January 20, 2018, the Court of Appeal for Ontario released its decision in the Appeal of Vadim Kazenelson (“Kazenelson”) both his conviction and sentence appeal. Kazenelson was the Project Superintendent/Manager for the Metron Construction Incorporated (“Metron”) project in Toronto that went terribly wrong on December 24, 2009. Tragically four workers died, and one was seriously injured, when two swing stage scaffolds broke apart, and five out of the six workers who were not attached to a lifeline that was anchored to the building, fell to the ground, over 100 feet below. Kazenelson had been at the project at the time of the accident and allegedly aware of workers not using fall arrest lanyards at the time of the accident.
Kazenelson was prosecuted for five counts of criminal negligence under the Criminal Code Amendments, often referred to as the Bill C-45 or Westray Mine Disaster Amendments to the Criminal Code. Kazenelson argued at trial that he was not guilty because he was not the direct supervisor of the crew, he had ensured that the workers had been properly trained and provided with fall arrest protective equipment, that he did raise the concern of workers not being provided with lanyards, when he was on site prior to the accident.
On September 5, 2017, Justice Nelson of the Ontario Court of Justice stayed all quasi-criminal charges against the three corporate and one individual accused in the deadly stage collapse at the Radiohead concert in Downsview Park on June 16, 2012. These charges under the Occupational Health & Safety Act (“OHSA”) are some of the latest in a series of serious regulatory and criminal charges, that have been stayed for unreasonable delay as a result of the Jordan decision of the Supreme Court of Canada.
Radiohead, a British rock band, was scheduled to perform at a concert in Toronto at Downsview Park. Just hours before the start of the concert, the stage superstructure collapsed. Scott Johnson, a drum technician, and resident of the United Kingdom, was fatally injured. Others were also seriously injured.
On June 6, 2013, the Government of Ontario’s Ministry of Labour laid charges against a number of parties under the OHSA, including but not limited to, Live Nation Canada Inc., Optex Staging & Services Inc., and the professional engineer who provided advice and engineering drawings and certification, Domenic Cugliari.
The case was factually and legally serious and complex. It proceeded to trial in November 2015, before Justice Nakatsuru, of the Ontario Court of Justice. Although during that trial, there had been an Application for Delay, after the Jordan decision was released by the Supreme Court of Canada on July 8, 2016, it was rejected by the trial judge. The trial proceeded, the prosecution and defense evidence was completed, and the lawyers were in the process of making final, written submissions on the merits of the prosecution.
However, on April 12, 2017, before all the final arguments were made, Justice Nakatsuru was appointed to the Ontario Superior Court of Justice, by the Federal Attorney General, Jody Wilson-Raybould. As a result, and under instructions from the Department of Justice not to do any further work on any matter, including the completion of the Live Nation case, Justice Nakatsuru ruled that he had no jurisdiction to continue the trial, and declared a mis-trial.
The policy and practice of the Department of Justice did not permit Justice Nakatsuru to complete the trial, after his appointment to the Superior Court of Justice in Ontario. Justice Nelson, was appointed to be the second trial judge. On a pre-trial Charter delay motion, to stay the OHSA charges for a breach of s. 11(b) of the Charter, said the following at paragraph 70:
“ Both Cugliari and Live Nation submit that Justice Nakatsuru’s appointment should not be treated as a discrete event because although unforeseen by the Crown in this case, it was not unforeseen by the state. Further, the state failed to take reasonable steps to mitigate any delay that did ensue. Specifically, counsel point to the following:
- The Provincial government failed to pass legislation which would have permitted Justice Nakatsuru to complete the trial;
- Justice Nakatsuru would have known that he was presiding over this trial when he applied to the Superior Court bench thus risking the mistrial;
- Justice Nakatsuru could have deferred his appointment until after he completed this case;
- The Federal government should have ensured that Justice Nakatsuru was not appointed until this trial was completed.
Although the Crown prosecutor persuaded Justice Nelson that the judicial appointment was a discrete exceptional event, it still did not permit this type of overall delay that occurred in this case. The trial justice held that even if one was to give thirty (30) months to complete this type of trial, rather than the presumptive eighteen (18) months, that the delay still far exceeded that period of time; the case having been in the judicial system for almost five (5) years.
The charges were stayed for breach of the constitutional right, under the Charter, to a trial within a reasonable period of time under section 11(b).
 Ibid., para. 70.
The Quebec Superior Court recently released a decision with broad implications for corporate employers, owners, managers and supervisors across Canada. In R. c. Fournier, 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.
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.
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.