The Elliot Lake Mall Collapse: When Does a Regulatory Contravention Constitute a Crime?
In January the structural engineer who concluded the Algo Centre mall was structurally sound some ten weeks before its collapse was charged with two counts of criminal negligence causing death and a single count of criminal negligence causing bodily harm. These are serious criminal offences punishable by life imprisonment (in the case of death) and ten years imprisonment (in the case of bodily harm).
The alleged role played by the engineer in the circumstances of the mall collapse is already the subject of a regulatory prosecution for strict liability offences under the provincial Occupational Health and Safety Act wherein the (presumed) fault requirement is negligence or the absence of the reasonable care expected of the defendant in the circumstances.
Why then have criminal charges been laid?
The answer is not simply because two people were killed and another seriously injured. The consequences of conduct are not in themselves determinative of criminal liability. More is needed; specifically, that the accused acted with the level of fault serious enough to attract the stigma of convictions registered for the crimes alleged.
We know from the lengthy public inquiry – which must report by October 31 – that in 2011 the engineer allegedly informed a potential purchaser of the mall that the roof would cave in without reinforcement, despite the engineer having concluded that the roof was structurally sound after a 2009 inspection. After completing a second inspection in 2012, the (now unlicensed) engineer observed ongoing leakage from the roof but changed this in his written report to “leakage” at the request of the mall owner.
Anyone, who in doing anything, or, omitting to do anything that is his or her duty to do, shows wanton or reckless disregard for the lives or safety of others is, by law, criminally negligent. The Supreme Court has found that the fault requirement for criminal negligence must be more than simple negligence; a breach of the standard of care expected in the circumstances. Instead, there must be at least a marked and substantial departure from the standard of care. The words “wanton or reckless” would suggest that the accused must have actual knowledge of the risk created by his or her conduct, but the Supreme Court has concluded that the accused need only have recognized and run an obvious and serious risk or, alternatively, gave no thought to that risk.
Deliberately recording false observations and misleading conclusions in relation to the structural integrity of the mall, if proved to be true, could certainly support finding that the accused engineer had markedly and substantially departed from the standard of care expected of him in the circumstances. A deliberate act is obviously much more severe than simply acting in a merely incompetent manner, which would be enough to sustain a regulatory or provincial prosecution, but not a criminal one. But what if the truth is somewhere in between? How much more than mere incompetence is required to sustain a conviction? The answer will be in the details; a close examination of how the accused acted in comparison to how, in the prevailing circumstances, not hindsight, he should have acted. The more egregious the errors, if any, the more likely convictions will be registered.
That assumes that the Crown can prove wanton and reckless disregard for the damage, inferred from the conduct. The 2011 conversation between the accused and the potential purchaser, if proved to be true, is something that could be determinative of this issue.
Every accused is presumed innocent until his or her guilt is proved beyond a reasonable doubt by the Crown. The accused engineer is next in court later in March. In the ordinary course, if he exercises his right to a trial, it will be several months before this proceeding is resolved.