In a Canadian criminal law first, a Quebec construction contractor is under indictment and will be tried in November on a charge of unlawful act manslaughter arising from the tragic workplace death of one of his employees.

Unlawful act manslaughter is defined in the Criminal Code as one form of culpable homicide. The offence is made out when death results from the commission of a predicate or underlying offence (the unlawful act) from which the objective foreseeability of bodily harm (not death) is neither trivial nor transitory, within the context of a dangerous act.

The underlying offence need not be a Criminal Code offence. Regulatory offences suffice, so long as they are not absolute liability offences in which there is no fault element (such as speeding).

Needless to say, it is a serious offence. A convicted individual is exposed to a life sentence. A convicted organization faces substantial fines that are not limited by the Code.

This fatality occurred when the walls of an unsecured trench in which the employee was working collapsed. At one point prior to the accident, the employer was observed working in the trench with the employee. Excavated soil had also been placed too close to the trench.

In committing the accused to trial, the preliminary court judge found that that the failure to secure the trench walls was a contravention of s.3.15.3 of Quebec’s Safety Code for Construction Work. It requires that trench walls with a slope greater than 45 degrees must be secured. As a regulatory offence that was properly characterized as a strict, as opposed to an absolute, liability offence, s.3.15.3 qualified as the predicate unlawful act. Moreover, the unlawful act was objectively dangerous in the sense that a reasonable person would understand that there was a risk of harm. The risk was foreseeable. A reasonable person in the same situation as the accused would have foreseen the risk of harm because of the risk of the trench walls collapsing.

Both at the preliminary inquiry and in a subsequent unsuccessful application to the Quebec Superior Court to quash the committal, the accused argued that, as a strict liability offence, s.3.15.3 could not form the predicate offence because the fault element was: (1) negligence or the absence of reasonable care; and, (2) operating as a presumption that the accused, in order to avoid conviction, was required to rebut or disprove on a balance of probabilities. Both the level of fault and reverse onus were contrary to fundamental principles of criminal justice and, perhaps, Charter principles in relation to the fault requirements for criminal offences and the presumption of innocence (“perhaps” because Charter relief is not available in a preliminary inquiry).

In their answer, both courts found that the Crown was required to prove that the unlawful act was a marked departure from the standard of care reasonably expected of the accused in the circumstances, as opposed to the “mere” departure sufficient to convict for a breach of s.3.15.1, simpliciter. These findings are consistent with a number of Supreme Court decisions identifying “a marked departure” (penal negligence) as the minimum measure of the accused’s conduct the Crown must prove for a variety of criminal offences requiring, as an essential element, the negligence of the accused.

This case should not come as a surprise. Beginning over twenty years ago, the Supreme Court has released a number of decisions that have steadily diluted the fault requirement for criminal offences from a positive state of mind to penal negligence. What makes this case, potentially, a manslaughter, as opposed to a straightforward breach of s.3.15.1, is the alleged, egregious breach of the standard of care expected of the accused, within the context of a self-evident dangerous act. That said, regardless of the result at trial, this case seems bound to end up in the Court of Appeal.

Here is a copy of the Superior Court judgment.