Unlawful act manslaughter

In a decision issued in October 2016 (Fournier c. R), the Superior Court of Québec established that, in certain circumstances, an accusation of manslaughter by means of an unlawful act under s. 222(5)a) of the Criminal Code can be based on a breach of provincial health and safety legislation.

As a result, employers should now ensure that their processes are in line with applicable health and safety standards and should, therefore, remind employees and managers of the importance of respecting these standards.

Decision and analysis
In April 2012, an employee died while performing his duties. The banks of an excavation at the bottom of which he was replacing pipes collapsed. The owner of the business by which he was employed, who was present at the time of the accident, was later accused of manslaughter.  

The evidence presented by the Crown at the preliminary inquiry revealed that the excavation banks were not safely shored while materials were placed directly on the rim of the banks, in violation of s. 3.15.3 of the provincial Safety Code for the Construction Industry (Safety Code).  

Initially accused of criminal negligence, the Crown also asked that the business owner stand trial for an accusation of unlawful act manslaughter. This addition to the accusation was accepted by the court and the business owner subsequently challenged it.

The issue before the Superior Court was whether an accusation of involuntary act manslaughter could be based on a strict liability provincial health and safety offence. A limited number of cases in Canada have addressed this issue. However, the court noted that a few authors had expressed their views on this matter. Ultimately, the court reached the conclusion that the provincial offence in question could be considered as the underlying offence on which an accusation under s. 222(5)a) of the Criminal Code is based.

The court also addressed the question of the Crown’s burden of proof. Generally speaking, in cases of strict liability provincial offences, the Crown’s burden of proof will be limited to demonstrating that the accused is responsible for the perpetration of the illegal act. The accused may then present a defence and try to demonstrate that it acted diligently to prevent such act.

In this case, the court specified that the Crown had to prove beyond a reasonable doubt: 1) that the strict liability offence constitutes an objectively dangerous act; 2) that the act constitutes a marked departure from the care that would have been taken by a reasonable person in the same circumstances; and 3) that a reasonable person, in the same circumstances, would have foreseen the risk of bodily harm.

Regarding the specific facts at hand, the court ruled that a violation of s. 3.15.3 of the Safety Code is an objectively dangerous offence that constitutes a marked departure from the care that would have been taken by a reasonable person in the same circumstances. It thereby confirmed the initial decision: The accused was to stand trial on the accusation of criminal negligence and on the accusation of manslaughter.

Conclusion
In our view, this decision increases the responsibility of employers with respect to occupational health and safety measures by broadening their criminal liability exposure. Breaches to health and safety legislation resulting in an employee’s death can now trigger an accusation of involuntary act manslaughter, in addition to an accusation of criminal negligence.

The trial to determine whether the owner is guilty or not is set to take place in November.

Another recent decision in Ontario sentenced a supervisor to three-and-a-half years in prison on four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.

This, along with the case discussed in this article, illustrates how courts across the nation are taking health and safety requirements very seriously and increasing penalties against employers who do not respect these requirements.

In addition to the possibility of being fined substantial amounts, employers now run the risk of serious jail time if they are found guilty of criminal negligence or an involuntary act manslaughter charge.

This gives employers all the more reason to be proactive and enthusiastic with regard to health and safety requirements, not to mention the primary objective of any occupational health and safety measure: keeping workers alive and well.

Philippe Belisle is a knowledge lawyer within Norton Rose Fulbright LLP’s Quebec employment and labour practice.

Catherine Pronovost is an associate at Norton Rose Fulbright LLP.