On August 11, the Québec Court of Appeal upheld a decision from the Court of Québec, finding an employer guilty of criminal negligence leading to the tragic death of one of its workers.
CFG Construction inc. v. R., 2023 QCCA 1032
Albert Paradis tragically lost his life on September 11, 2012, after he lost control of the heavy vehicle that he was driving, that belonged to his employer, CFG Construction Inc. Evidence presented during the proceedings highlighted the employer’s awareness of multiple defects within the vehicle’s braking system, which ultimately caused the loss of control.
In its decision rendered on February 14, 2019[1], the Court of Québec, having found compelling evidence establishing the essential elements of the criminal negligence causing death offense beyond a reasonable doubt, found the employer guilty of the alleged offence and imposed[2] a fine of CA$345,000 and a three-year probationary period.
Initiation of appeal
The employer initiated an appeal, challenging the guilty verdict. The grounds for appeal raised by the employer encompassed allegations of the trial judge’s misapplication of the concept of criminal negligence, asserting undue emphasis on the consequences of negligence. Additionally, the employer contended that constitutional violations were present, which should have either led to the exclusion of certain pieces of evidence or the complete stay of the legal proceedings.
- Misapplication of criminal negligence
At the outset, the Court of Appeal reiterated the essential elements of the offence of causing death by criminal negligence[3], which the employer was accused of in this case. These elements encompass:
- Conduct, either an action or an omission to fulfill a duty, displaying reckless disregard for the lives or safety of others (actus reus);
- Manifesting a significant and conspicuous departure from the standard of conduct expected of a reasonable person in similar circumstances, demonstrating objective foreseeability of bodily harm (mens rea); and
- Resulting in the death of a human being.
Upon thorough examination of this case, the Court of Appeal determined that the Court of Québec judge did not assign disproportionate weight to the consequences of the negligence, specifically the worker’s tragic death, during the analysis of the actus reus. Instead, the judge assessed it from the perspective of the fault element, aiming to ascertain whether the employer’s actions exhibited a wanton or reckless disregard for the worker’s life. In these circumstances, the employer’s failure to fulfill its legal obligations, notably as stipulated in sections 217.1[4] and 219 (1) (b[5]) of the Criminal Code, section 51[6] of the Act respecting occupational health and safety and section 519.15 [7]of the Highway Safety Code,constituted the actus reus of the offence of causing death by criminal negligence. The omission in question undeniably represented a marked and substantial deviation from the conduct expected of a reasonable person in the same circumstances, particularly in a heavily regulated and dangerous field, providing evidence of mens rea.
- Constitutional violations
While the Court of Appeal acknowledged that the investigator’s request for access to information submitted to the Société de l’assurance automobile du Québec (SAAQ) constituted an unreasonable search within the scope of section 8 of the Canadian Charter of Rights and Freedoms, it determined that this alone did not warrant the exclusion of the evidence obtained through this process, as per section 24 (2) of the Canadian Charter of Rights and Freedoms. In the context of a criminal investigation, section 59 of the Act respecting access to documents of public bodies and the protection of personal information did not permit the investigator to acquire, through a mere access request, a comprehensive set of documents related to the SAAQ’s actions and interventions concerning the employer. However, a review of all the circumstances surrounding the case revealed that the investigator had a legitimate alternative means of obtaining this information, namely, the use of a production order. Considering the limited impact of the violation and society’s vested interest in a decision on the merits, the Court of Appeal determined that excluding the acquired information would bring the administration of justice into disrepute.
Additionally, the employer argued that the destruction of the investigator’s notes hindered its ability to present a comprehensive defence, potentially warranting a stay of proceedings. In this regard, the Court of Appeal noted that, to succeed on this ground, the employer had the burden of demonstrating concrete prejudice to its right to a full and complete defence. Nonetheless, the Court ultimately found that despite the investigator’s glaring negligence in handling the notes, the employer had failed to establish how the absence of these notes could have impacted its ability to mount a complete defence.
As a result, the Court of Appeal dismissed the employer’s appeal.
This decision serves as a reminder to employers regarding the importance of promptly implementing all necessary measures to ensure the health, safety and physical integrity of their workers. It underscores that any serious negligence or recklessness in this regard will not be tolerated.
For more information on this topic, please contact the author, Sarah-Émilie Dubois.
[1] R. v. CFG Construction inc., 2019 QCCQ 1244
[2]Sentencing Decision of December 3, 2019 – R. v. CFG Construction inc., 2019 QCCQ 7449,
[3]Section 219 (1) of the Criminal Code
[4]Duty of persons directing work to take reasonable steps to prevent bodily injury to others as a result.
[5]Criminal Negligence for failing to do anything that it is his duty to do
[6]General duty of the employer to take the necessary measures to protect the health and physical and mental integrity of workers.
[7]Obligation of the owner of a heavy vehicle to maintain it in good mechanical condition, to comply with the maintenance standards, the frequency and the terms and conditions of the inspections established by regulation.
