Failure to comply with health and safety regulations leads to manslaughter conviction

On March 1, 2018, Justice Pierre Dupras of the Court of Québec made a significant ruling in the R. v. Fournier case,[1] reminding employers that there are serious consequences for failing to comply with their legal obligation to take all necessary measures to protect the safety of their workers.

Contractor Sylvain Fournier, owner and president of S. Fournier Excavation, is the first person to be convicted of manslaughter for failing to follow health and safety regulations.

On April 3, 2012, Fournier's company, which employed Gilles Lévesque at the time, was replacing a sewer line in front of a residence in Lachine. While on the job, Fournier and Lévesque were positioned at the bottom of a trench that had not been shored up for safety as required by section 3.15.3 of the Safety Code for the construction industry. Two consecutive landslides of the trench walls completely buried Lévesque, who was dead by the time help arrived and dug him out.

The tragic circumstances of Lévesque's death led the Crown to charge Fournier with two counts. The first was for criminal negligence causing the death of Lévesque by not taking the required measures to prevent bodily harm[2] while directing the work being done by his employee. The second charge against Fournier was for causing the death of Lévesque by manslaughter.[3]

At the end of proceedings that lasted several weeks, Justice Dupras convicted Fournier of manslaughter-the first conviction of its kind-finding that Fournier's behaviour during the pipe replacement work that turned fatal for Lévesque constituted an unlawful act that was objectively dangerous, that this act was responsible for the death of Lévesque, and that his behaviour showed a significant lack of judgement compared to that of a reasonable person in the same circumstances:

"[114] Resuming the individual factors in the preceding paragraph, the Court finds, based on the evidence, that the actions of the accused constitute an unlawful act and a clear infringement of the obligations stated in section 3.15.3 of the Safety Code for the construction industry, in that the accused, Mr. Lévesque's employer, did not ensure that the walls of the trench in question were sturdily shored up with the necessary materials following the requirements formulated in the first paragraph of the text."[4] [Translation]

Next focusing on the criminal negligence charge, and based on the obligations incumbent on the person directing the work of another person (as detailed in section 217.1 of the Criminal Code) and on the provisions of the Act respecting occupational health and safety and the Safety Code for the construction industry, the Court ruled that Fournier failed to fulfil his legal duty to protect the health and safety of his employee and showed wanton or reckless disregard for the employee's safety. Justice Dupras wrote at paragraph 128 of his ruling: "The actions at issue are easily characterized as indifference, detachment and disinterest, and show a complete lack of consideration for their foreseeable consequences." [Translation]

To summarize, here are the Court's conclusions:

"[132] The Court has retained that none of the measures required by regulation or by law had been implemented to ensure Mr. Lévesque's safety. In addition, it holds that the accused did not pay any attention to the serious and obvious risk to Mr. Lévesque's safety that the accused himself had caused.

"[133] The failure to respect his obligations to take the appropriate measures to prevent bodily harm and, of course, the death of Mr. Lévesque, establishes this marked and significant breach, for which the evidence has shown without reasonable doubt."[5] [Translation]

This ruling reminds employers how important it is to follow the occupational health and safety rules. Recall that after a huge methane gas explosion killed 26 miners on May 9, 1992, in Plymouth, Nova Scotia, the Federal Government adopted, in 2002, Bill C-45: An Act to Modify the Criminal Code (Criminal Liability of Organizations).

The goals of Bill C-45 were to make it an offense of criminal negligence to put workers' health and safety at risk, to impose obligations on employers beyond those required by provincial laws, and to make it possible for a wide range of people to be held responsible, including companies.

This led to Law C-21, which took effect on March 31, 2004. It modified the Criminal Code so it would be easier to prosecute organizations for criminal negligence when they demonstrate marked negligence related to health and safety. Since then, the Criminal Code makes a direct association between an employer's marked negligence in the area of occupational safety and its criminal negligence (section 217.1, Criminal Code) and sets the basis for a presumption of criminal involvement by the organization (section 22.1, Criminal Code).

Justice Dupras's decision in the Fournier case constitutes the first manslaughter conviction due to an employer's failure in its obligation to protect and ensure the health and safety of its workers.