The 13-year-old case involving a trench death of a construction worker will begin Jan. 20 in Vancouver’s BC Supreme Court.
It is only the third workplace case of its kind in B.C. where a construction company and personnel have been charged with criminal negligence and the former foreman is also facing manslaughter charges under the 2004 Westray Law amendment of the Criminal Code of Canada (CCC).
J. Cote & Son Excavating Ltd. and then-foreman David Green have been charged with criminal negligence resulting in the death of pipelayer Jeffrey Caron and criminal negligence resulting in injury to another pipelayer Thomas Richer.
B.C.’s first workplace criminal negligence case R. v. Stave Lake Quarries Inc. (2016) BCPC dealt with the death of 22-year-old Kelsey Ann Kristian, who was fatally crushed when the truck she was not licensed or experienced in operating rolled over on her.
The company was fined $100,000 with a $15,000 victims’ surcharge. This was Canada’s third case utilizing the amended CCC where charges could be laid rather than through Occupational Health and Safety Acts.
B.C.’s second case saw the BC Prosecutions Office announced a stay-of-proceedings against Peter Kiewit Sons ULC and two employees in 2021. They had been charged with criminal negligence resulting in the death of Samuel Fritzpatrick, who was struck and killed by a boulder in 2009 at a Kiewit hydro electric project in Toba Inlet. The prosecutors’ office statement, prior to trial, said “the available evidence no longer satisfies the charge assessment standard for the continued prosecution” prompting the stay-of-proceedings.
Across Canada, there have been only 11 convictions in the past 20 years since the CCC was changed to allow prosecution of companies and employees. Five have been in Quebec, four in Ontario, one in B.C. and one in New Brunswick, according to the United Steelworkers report on workplace criminal negligence cases.
The J. Cote case is one of 26 workplace incidents across Canada related to serious injury and death where criminal negligence charges were brought against 16 corporations and 18 individuals.
In the J. Cote and Green case, the crown laid the charges on Aug. 17, 2023 by way of indictment, going directly to the BC Supreme Court. Both J. Cote & Son Excavating and Green are charged in the same indictment.
Criminal defense lawyer William Smart, K.C., is acting for J. Cote & Son Excavating, and Brock Martland, K.C., for Green. Lead crown prosecutor is Louisa Winn, K.C. with co-counsel Emmanuelle Rouleau.
All parties appeared in court Nov. 15, where the defendants pleaded not guilty, with a trial date of Jan. 20 set for what is expected to be a six-week hearing before a judge. The prosecution, according to Winn, is first up and will call 15 witnesses.
The case centres around the Oct. 11, 2012 incident in North Burnaby where J. Cote & Son Excavating had a municipal contract installing a combination storm and sanitation sewer line on city land. A gravity retaining wall, which the city had built, toppled onto two pipelayers working in a 1.2 metre trench.
WorkSafeBC carried out an investigation in 2013 and issued a 30-page report on the incident claiming the company failed to recognize hazards onsite. J. Cote & Son Excavating appealed the report’s findings. The file was turned over to the RCMP for further investigation in 2014, and the subsequent findings were turned over to the B.C. Crown Prosecutors office, which then laid charges.
Prosecutions have not always been successful.
The United Steelworkers, which tracks charges in Canada, said in its report of the 26 incidents where charges have been laid under the CCC: “Charges have been withdrawn in six cases; acquittals followed trials in five cases; charges in three cases were stayed by the Crown, including one charge laid as a result of a private prosecution brought by the United Steelworkers; two charges against two individuals and four charges against four corporations are pending.”
Prison terms have been handed down in only three cases. In R v. Kazenelson (2015), the project manager with Ontario’s Metron Construction received a three-and-a-half-year prison term. The 2018 case of R. v. Fournier (2018) dealt with an employee’s death after a trench collapse and Quebec. Company owner Sylvain Fournier was sentenced to 18 months in prison plus two years probation for manslaughter. Fournier’s conviction was the first in Canada for an employer on manslaughter charges.
In R. v. King (2023), New Brunswick supervisor Jason King was sentenced to three years imprisonment for criminal negligence (appeal decision pending) in the death of an 18-year-old at a sewage treatment plant.
Company fines for corporate convictions have varied for criminal negligence under the CCC with the largest handed out in R. v. Detour Gold Corp, where an employee died of acute cyanide poisoning for lack of protective equipment and medical supplies as well as inadequately trained medics.
The sentence was a $1.4 million fine, a $420,000 victim surcharge, and $805,333 in restitution. In R. v. Metron, the company was fined, on appeal, $750,000 plus a $112,500 victim surcharge.
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