In a previous case comment, I wrote that in R. v. Precision Diversified Oilfield Services Corp Drilling (“Precision”) the Alberta Court of Appeal would shortly have the opportunity to consider whether, properly interpreted, so called general duty OHSA offences required the Crown to prove both the wrongful act or actus reus and fault beyond a reasonable doubt.

The general duty provision at issue was s.2(1)(a)(i) of (now repealed) Alberta’s Occupational Health and Safety Act(the “OHSA”):

Every employer shall ensure, as far as it is reasonably practicable for the employer to do so…the health and safety of…workers engaged in the work of that employer…..

Section 3(1)(a)(i) of Alberta’s new OHSA enacted in 2018 is worded exactly the same as s.2(1)(a)(i). Both are comparable to s.25(2)(h) of Ontario’s OHSA:

Without limiting the strict duty imposed by subsection (1), an employer shall…take every precaution reasonable in the circumstances for the protection of a worker…

In Precision, it was alleged that the corporate defendant’s failure to control “drill string torque” caused the tragic death of Frazier Peterson, a floor hand on one of its drilling rigs. It was convicted at trial of having breached s.2(1)(a)(i), with a second charge Kienappled. Veit J. sitting as a summary conviction appeal judge, quashed the conviction and ordered a new trial. She found, in part, that the trial court had erred in finding that the actus reusof s. 2(1)(a)(i) was made out by proof of the accident itself. Rather, the expression “as far as it is reasonably practicable for the employer to do so” formed part of the actus reus of s.2(1)(a)(i) requiring proof beyond a reasonable doubt (the “legal standard”) by the Crown.

The Alberta Court of Appeal (the “Court”)  granted the Crown leave to appeal. In its judgment released on August 22, 2018, Veldhuis J.A. writing for the majority rejected the Crown’s appeal. She found at paragraph 43 that the expression at issue forms one element of the actus reus, meaning that in order to make out the offence contrary to s.2(1)(a)(i), the Crown must prove on the legal standard:

(1) the worker must have been engaged in the work of the employer;

(2)  the worker’s health or safety must have been threatened or compromised (i.e. an unsafe condition); and

(3) it was reasonably practicable for the employer to address the unsafe condition through efforts that the employer failed to undertake.

At paragraph 44, she described these elements as “consistent with the language of the provision, the purpose and intent of the legislation, the Supreme Court of Canada’s guidance in [R. v.Sault Ste. Marie, [1978] 2 S.C.R. 1299] and interpretations given to similar provisions in other provinces.”

She added the following:

[55] Any suggestion that this interpretation somehow equates with requiring the Crown to prove negligence must fail for two reasons. First, the framework essentially requires the Crown to provide and prove particulars of what the Crown alleged the employer failed to do. Particulars, in and of themselves, do not establish negligence. Second, the framework does not impose an impossible obligation on the Crown or result in the Crown negating the due diligence defence. [Court’s italics]

It remains on the defendant to establish due diligence:

[60] After the Crown meets its burden, the focus shifts to the accused to establish due diligence on a balance of probabilities. To establish due diligence, the accused will put forward all its evidence on how foreseeable the danger was, what reasonable steps it took to address the unsafe condition, and whether it was operating under any mistake of fact. We agree that the employer’s obligation to establish on the balance of probabilities that it took all reasonable steps overlaps with the requirement we have imposed on the Crown to prove it was reasonably practicable for the employer to address the unsafe condition through the particularized efforts. However, these remain distinct inquiries subject to different standards of proof. Certain factors, such as mistake and employee error, may affect the due diligence defence in ways that will not affect the actus reus assessment. Thus, it is possible for both sides to meet their obligations on the applicable standard of proof.

Wakeling J.A. concurred in the result but disagreed that the expression at issue formed an element of the actus reus. He found that requiring the Crown to prove what was reasonably practicable equated to requiring it to prove the defendant’s negligence or disproving its due diligence. This would be inconsistent with Sault Ste. Mariein which it was recognized that it was both justifiable and desirable in regulatory offences to shift the onus to the defendant to establish due diligence on the civil standard (a balance of probabilities). At paragraphs 104 and 105, he provided an alternative interpretation of s.2(1)(a)(i) and what was required of the Crown:

…..to establish the physical components for the general duty offence found in s. 2(1) of the Occupational Health and Safety Act,the Crown need only prove beyond a reasonable doubt that something happened within the control of an employer that negatively affected the health or safety of its workers. In other words, the Crown must establish that while the worker was performing the employer’s work, an incident took place that affected the worker’s health or safety. The breach is the employer’s failure to ensure the health and safety of its workers.

In order to establish the physical components of the general duty offence, the Crown may only need to prove the facts of the incident – the accident itself. In a situation where the employer controls the harmful activities that were undertaken in the workplace and the only possible causes for the accident are safety-related, that is all the Crown must prove in order to establish the physical components of the offence.

Unfortunately, the Crown did not seek leave to appeal the judgement to the Supreme Court. With great respect to the Court, there is a compelling argument that both the majority and concurring judgments are in error. Their practical result is an incoherent instruction to the lower courts and parties as to how defendant employers can avoid liability on the basis that they were not at fault.

A starting  observation about s.2(1)(a)(i): The general duty is engaged at all times, meaning its contravention can lead to prosecution in situations when the employer has failed to ensure the safety of one or more workers, simpliciter, and just not situations wherein a worker has been injured or worse. If employee injury or death are pleaded or particularized as having resulted from the contravention, the Crown must of course prove causation on the legal standard. But that is not a legal requirement necessary to sustain a conviction. Employee injury or worse are not essential elements of the offence. What is essential is that the employer failed in its duty. Injury or worse are relevant only as potentially aggravating factors requiring proof on the legal standard if the Crown is to be permitted to rely on one during the sentencing phase: R. v. Gardiner, [1982] 2 S.C.R. 368.

Given the foregoing, it is puzzling how “proof by accident” could ever be considered an acceptable method for proving a contravention of s.2(1)(a)(i), instead of focusing on the essential elements of the offence as framed by the provision.

Although the majority opinion conducts a careful and detailed analysis of the actus reus, its conclusion that it remains incumbent on the defendant to prove its due diligence (or disprove its negligence), is equally puzzling,

When it included the words “reasonably practicable” in s.2(1)(a)(i), the clear intention of the Alberta legislature was that the question of whether the employer had unlawfully breached its duty must be answered on an objective basis. This requires an inquiry that focuses on the following fundamental questions: Was worker exposure to the unsafe condition foreseeable? If so, measured against the community or industry standard of care, were the employer’s efforts to address the unsafe condition reasonable? Or did it reasonably, but mistakenly, believe that the unsafe condition had been addressed? In other words, in order to attract liability, the creation of the unsafe condition must arise out of the employer’s negligence.

The Court was entirely correct in identifying the valid policy reasons behind strict liability offences; specifically, the reasons why defendants, in order to avoid liability, are required to establish that they are faultless (that is, not negligent) on the civil standard. But that does not justify ignoring the plain language the Legislature used in defining the duty of care.

In 2018, it is irrelevant that negligence does not connote a positive state of mind. When Sault Ste Mariewas decided 40 years ago, liability for criminal offences required subjective mens rea.  When it created the defence of all reasonable care (or the absence of negligence) for regulatory offences, later described as a presumption of fault rebuttable on the civil standard by the defendant, the Supreme Court initiated the demise of subjective mens rea as the fault requirement for required for all criminal offences. Over a series of Charter–based decisions (starting with Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486), the Supreme Court found that negligence or the objective measure of actions was: (1) the minimum level of mens rea or fault required to satisfy the principle of fundamental justice that the morally blameless should not be punished; and, (2) negligence in the form of a marked departure from the standard of care could attract criminal liability. In other words, any present day discussion of what constitutes fault or  mens rea, for both regulatory and criminal offences, necessarily starts, at the lowest end of the spectrum, with negligence.

The actus reus of an offense is defined by the essential elements prescribed in the provision at hand. But that does not necessarily mean that what is prescribed is purely act and not fault or mens rea.  That is why the Supreme Court in Sault Ste. Marie was sensitive to a legislature’s use of words such as “knowingly” that removed the provision at hand from the strict liability class of offences.

Perhaps the most difficult finding of the majority is that any suggestion that its interpretation of s.2(1)(a)(i) somehow equates with requiring the Crown to prove negligence must fail. Particulars are a trail fairness issue. They are intended to assist a defendant in understanding the case it has to meet; that is, in understanding how it failed to ensure worker safety. But it still remains incumbent on the Crown to prove on the legal standard that it was reasonably practicable for the defendant to do more; that is, that the defendant’s actions fell short of the standard of care reasonably expected in the circumstances. If the Crown succeeds meeting that burden, how can the defendant possibly prove on the civil standard that it met or surpassed the standard of care?