The courts are serious about health and safety! In a highly anticipated decision, the Honourable Pierre Dupras of the Court of Québec’s Criminal and Penal Division found Sylvain Fournier, the owner, and president of S. Fournier Excavation, guilty of manslaughter for failing to ensure health and safety regulations were followed. Fournier is the first person in Canada to be convicted of manslaughter related to health and safety negligence. This is the first case of its kind and the details of this case mirror many other health and safety cases.
On April 3, 2012, Mr. Fournier’s company was replacing a sewer line in a residential neighbourhood in Lachine, Quebec. Fournier and his employee, Gilles Lévesque, were at the bottom of the trench at a depth of approximately 2.6 metres (8.5 feet). The trench collapsed, engulfing Mr. Lévesque. The trench had not been shored as per section 3.15.3 of the Safety Code for the Construction Industry (the “Safety Code”).
Gilles Lévesque’s death led the Crown to charge Mr. Fournier with two counts under the Criminal Code of Canada. The first charge was for criminal negligence causing death, the same charge laid on Vadim Kazenelson, the Project Manager in the Metron incident. The second charge was for causing Mr. Lévesque’s death by committing manslaughter. The Crown fulfilled its burden of proof on both counts, but the charge of criminal negligence stayed as the law prohibits multiple convictions arising from the same cause.
Justice Dupras agreed with the judge presiding at the preliminary inquiry accepting the Crown’s argument that failure to comply with Quebec’s Safety Code could constitute the underlying “unlawful act” requirement referred to in section 222(5)(a) of the Criminal Code. It was successfully established that the failure to comply with provincial legislation met the unlawful act requirement established in the Criminal Code.
The Court justified the conviction of manslaughter based on the following grounds:
- The accused, Mr. Fournier, committed an unlawful act by not solidly shoring the banks of the trench with quality material in accordance with the plans and specifications of an engineer as required by section 3.15.3 of the Safety Code for the construction industry (the “Safety Code”). This unlawful act led to the fatality
- By not shoring the slopes, Mr. Fournier’s conduct departed from the standard of care of a reasonable person in the same circumstances
- The angle of the trench walls, the proximity of the excavated soil to the trench walls and the fact that the work required entry into the trench all made the risks of harm objectively foreseeable
A provincial regulation was contravened, and that contravention led to a fatality. The individual directing the work departed from a reasonable standard of care. Based on the task being performed, the risks were foreseeable, and preventative measures could have been put in place.
Employers and Supervisors
Employers and supervisors need to stand up and take notice; the courts are taking health and safety seriously. Contravening health and safety legislation where there has been a fatality could lead to manslaughter charges under the Criminal Code of Canada. Penalties under the Code are nothing to shake a stick at.
Employers must make sure that safety is taken seriously and integrated into all aspects of the organization. Safety is not an add-on or an afterthought. Telling someone to “just do it safely” is a dangerous statement. Have the capacity and available resources to ensure that safety can be adequately managed.
Safety responsibilities must be clear and concise. Workers perform better when they know what to do, when to do it, how to do it, and what constitutes a job well done. Make sure there is a system in place for the selection and training of supervisors, and that supervisors know how to hold workers accountable.
Supervisors can either make or break your safety system. Competent supervisors must be exactly that: competent. Communicate to workers the hazards and controls, provide information as needed, and ensure that workers are abiding by standards and practices that have been implemented for their safety.
Monitor work performance through direct observation, schedule time in your day to observe the work that is being carried out, as this provides you the best opportunity to commend positive safety behaviours and curb poor performance. And, for goodness sakes, document your efforts.
The safety landscape in Canada is changing. Everyone deserves to work safely and return home at the end of the day. Those employers that fail to ensure the safety of workers and provide a safe work environment will be facing stiffer penalties.
Written by Jeff Thorne | Manager of Training & Consulting
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