Worker Safety on Construction Sites: a Contractor Found Guilty of Manslaughter
On March 1, 2018, the Court of Québec’s Criminal and Penal Division rendered a highly anticipated judgment on charges of manslaughter and criminal negligence laid against an employer following a work-related accident resulting in a fatality. The Honourable Pierre Dupras found contractor Sylvain Fournier, owner of Excavation S. Fournier inc., guilty of manslaughter in the death of one of its employees.
On April 3, 2012, in the Montreal borough of Lachine, Gilles Lévesque, an employee of Excavation S. Fournier inc., was accidentally buried in a trench, causing his death. At the time of the accident, he was in the deepest part of the trench, at a depth of 2.6 metres. The accused was also partially buried during the incident.
During its investigation, the provincial health and safety board (the Commission de la santé et de la sécurité du travail (CSST), since replaced by the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST)) found that a number of provisions of the Safety Code for the Construction Industry1 (the “Safety Code”) had been contravened, in that the banks of the trench had not been shored up, excavated soil had been dumped directly on the rim of the trench, the company had no prevention program or excavation protocol, and the deceased worker had received no relevant training.
Following the accident, the CSST issued a statement of offence under section 237 of the Act respecting the occupational health and safety2 on the grounds that the employer had acted so as to seriously compromise the health, safety or physical well-being of a worker during the performance of excavation work. That charge is still pending.
In addition, in April 2015, the construction industry regulator, the Régie du bâtiment du Québec (the “Régie”), revoked the company’s contractor’s licence, since, in the view of the Régie, the head of the company was unable to establish that he could carry on the activities of a contractor competently and prudently, given his past conduct.
Following a trial that lasted several days, the Court found the accused guilty of manslaughter in connection with the fatal accident. The judge also found him guilty of criminal negligence, but because of the rule against multiple convictions, he pronounced a stay of proceedings on that charge.
Regarding the verdict of manslaughter, the Court justified its decision on the grounds that:
- the accused breached the obligations stipulated in section 3.15.3 of the Safety Code, thereby committing an illegal act causing death;
- the accused’s conduct was objectively dangerous and departed significantly from that of a reasonable person placed in the same circumstances;
- the width and depth of the trench as well as the 900 angle of the banks, the close proximity of the piles of excavated soil and the fact that the excavation and pipe connection work had to be done manually, all made the risk of bodily injury objectively foreseeable.
Concerning the charge of criminal negligence, the Court found that the accused’s conduct constituted:
- an omission to do something he was legally bound to do, i.e. respect his obligations under section 217.1 of the Criminal Code and section 3.15.3 of the Safety Code;
- wanton or reckless disregard for the foreseeable consequences of his actions, in this case the death of a worker;
- a marked and substantial departure from that of a reasonable person placed in the same circumstances, who would have foreseen that such conduct posed a risk for the life or safety of others.
This decision of the Court of Québec is the first of its kind in such a context, and sends a clear message to contractors in Quebec regarding the importance that must be paid to safety on construction sites and to follow the regulations applicable to this industry, as in the eyes of the Court, failing to respect a rule under the Safety Code constitutes an illegal act that may result in a conviction of manslaughter should death ensue as a result of the illegal act.
It will be interesting to see what representations on sentencing are made in this case, as a verdict of manslaughter will likely lead to imprisonment.
The authors would like to thank articling student Olivier Scheffer for his assistance in the preparation of this article.
1 CQLR c S-2.1, r 4
2 CQLR c S-2.1