RULING ON MOTION TO QUASH

DATE: May 17, 2017

ONTARIO COURT OF JUSTICE Central West Region Brampton, Ontario

Parties

HER MAJESTY THE QUEEN

-and-

7506406 CANADA INC. (ORNGE)

BEFORE: Duncan J.

COUNSEL:

• Thomas L. W. Orendorff, for the Plaintiff
• Ryan D. Truax and Marcus Rozsa, for the Defendants

HEARD: In Writing

Background

[1] The defendant corporation was originally charged in an information sworn May 29, 2014 with 17 counts under the Canada Labour Code. All counts alleged offences contrary to section 148, the omnibus offence-creating section under that Act. The Crown proceeded by indictment and the defendant elected trial in the Ontario Court of Justice. At the start of the trial, prior notice having been given to the defendant and the Court, nine counts were withdrawn.

The Motion to Quash

[2] On arraignment on the eight remaining counts, the defendant brought a motion to quash counts 10 and 11 which read as follows:

Count 10: On or about May 31, 2013, 7506406 Canada Inc. failed to provide adequate supervision for daily flight activities at Moosonee, in contravention of Subsection 125(1)(q) of the Canada Labour Code Part II, thereby committing an offence under Subsection 148(1) of the Canada Labour Code Part II.

Count 11: On or about May 31, 2013, 7506406 Canada Inc. failed to provide adequate supervision for daily flight activities at Moosonee, in contravention of Subsection 125(1)(q) of the Canada Labour Code Part II, resulting in the death of Mark Filliter and Jacques Dupuy, thereby committing an offence under Subsection 148(2) of the Canada Labour Code Part II.

Initial Arguments

[3] The first argument was that these counts were objectionable because they omitted certain essential elements found in the sections – that the omitted supervision be "prescribed [by regulation]" and that the breach "directly resulted" in death. I don't think there was much merit in this argument. Counts may, but do not have to, precisely track the words used in the statute: s 581(2) CC. Reference to the section number incorporates the requirements contained in that section without repetition in words: s 581(5) CC.[1]

[4] Further, with somewhat more emphasis, it was argued that the counts were defective because they failed to specify which of the many prescribed regulations had not been complied with: R v Wis Developments, [1984] 1 SCR 485. The Crown countered that the charges, particularly when considered together with the disclosure, provided adequate information identifying the offence. Alternatively, the Crown requested an amendment to allege a breach of the duty described in section 124 rather than section 125 of the Act.

[5] Submissions on this quashing motion were bifurcated in order to accommodate scheduling of witnesses. Before submissions could be completed and a ruling made, a greatly complicating issue arose based on the newly disclosed Minister's consent to institute proceedings.[2]

Consent to Prosecute

[6] Proceedings for an offence under the CLC require the consent of the Minister of Labour. Such consent was given in writing on May 16, 2014 in the following terms:

Pursuant to section 149(1) of the Canada Labour Code, I hereby consent to the institution of proceedings against 7506406 Canada Inc… in respect of seventeen offences described below:

[7] There then followed a recitation of 17 counts that differed from the counts in the information in that they contained a great deal of detail – essentially statements of evidence in support of the allegations – over and above that which is contained in the counts in the information. (See Chart attached at end of these reasons).

[8] After taking time to consider this development, counsel agreed that, while the counts in the information could vary to some degree from those in the consent, they could not be so dissimilar – either as originally drafted or later amended – to effectively amount to the charging of a different offence: R v Falkenberg, 16 CCC 2d 525 (Ont CA). Mr. Devlin for the Crown candidly conceded that there was insufficient correspondence between the consent and two of the counts in the information and accordingly a stay on those counts, 14 and 15, was directed.

[9] The parties were also in agreement that the counts in the information should be deemed to include the particulars in the corresponding counts in the consent and that the defendant's liability should be limited to the conduct described by those particulars.

[10] Mr. Devlin for the Crown confirms that his case, in a nutshell is this:

• Counts 3 and 4 – failure to provide night vision equipment
• Counts 8 and 9 – failure to provide adequate "differences" training
• Counts 10 and 11 – failure to retain the position of Base Manager and the supervision it provided.

With respect to counts 3, 4, 8 and 9, the particulars in the consent, while somewhat verbose, contain the nugget of the allegation as succinctly stated by the Crown.

Problematic Counts 10 and 11

[11] Counts 10 and 11 are more problematic. No nugget is obvious. With the deemed insertion of the particulars from the consent they now read:

Count 10: … failed to provide adequate supervision for the daily flight activities at Moosonee, such as but not limited to, not verifying the Pilot Proficiency Check for Jacques Dupuy conducted on September 9th, 2012 or the training of Donald Mark Filliter as it relates to the COM 2.4 "Direct Entry Captain" procedure. Furthermore, the employer has demonstrated in the past, specifically prior to approximately April 2012, that an onsite Base Manager was provided at the bases. Therefore, the employer failed to provide in the prescribed manner each employee with the information, instruction, training and supervision necessary to ensure health and safety at work in contravention of Subsection 125.(1)(q) of the Canada Labour Code, Part II …

Count 11: … the direct result of which is the death of Donald Mark Filliter and/or Jacques Dupuy, and thereby committing an offence under Subsection 148(2) of the Canada Labour Code, Part II.

[12] The Crown acknowledges that the first two of the underlined particularized items regarding the Pilot Proficiency Check and the Direct Captain entry procedure are not really part of his allegation under these counts. The remaining item, in bold, re the Base Manager is very awkwardly stated and does not allege any failure or omission at all, but rather speaks only to the former operator's practice of providing Base Managers. Mr. Devlin urges a generous interpretation of these words to read as the equivalent of the allegation he has specified. I am willing to do that – but I think it would be preferable to repair the wording to more accurately state what is being alleged.

The Specificity Issue

[13] Apart from that, Mr. Gover for the defendant continues to assert one of his original objections to these counts, that is, that based on R v Wis Developments supra, these counts fail to inform the defendant as to which of the many prescribed regulations it has allegedly breached. He points out that other reported cases of charges under this section specify the regulation in question.[3]

[14] In my view there is merit to this argument. While I do not think that the Crown is in any way limited to reliance on a single regulation, I think it is necessary to identify which one or ones it is alleging were breached or unfulfilled in order to properly satisfy the golden rule of informing the accused of the charge that he faces in order that he may prepare and present his defence. While the advent of full disclosure has diminished much of the fact-based objection to lack of specificity, it does not do much to alleviate uncertainty as to the legal rules that are alleged to have been breached. In my view the counts, as they stand, are fatally deficient in this regard.

Amendment of the Counts

[15] Mr. Devlin submitted on the original motion to quash, and now renews that submission, that if the counts are found to be defective, they should be amended. However, rather than adding reference to specific regulations, he proposes re-stating these two counts in the wording of s 124, consistent with the other non-objectionable counts in the information. The defence responds that such an amendment cannot be made because it would not meet the tests under section 601(4) of the Criminal Code and, even if it did, such an amendment would amount to changing the offence charged, contrary to the prohibition in Falkenberg applicable to cases requiring consent.

Statutory Power to Amend

[16] Dealing first with the statutory power to amend, section 601(4) provides the widest powers of amendment "at any stage of the proceedings" even if the count "fails to state anything requisite to constitute an offence," if amendment can be done without prejudice (to paraphrase). In my view there is no prejudice in this case. The factual basis of the allegation has always been clear. The Crown has confirmed many times both in writing and orally that these counts allege that the company compromised safety of its employees by eliminating the position of Base Manager and the supervision that position provided. The allegation has clearly been understood by defence counsel who have thoroughly challenged it in cross examination of Crown witnesses. There can be no suggestion that the defence has been misled. In short, these counts have been treated from the outset in the same way that they would have been if they were allegations framed in terms of section 124.

The Consent Issue

[17] As for the consent issue, I do not read Falkenberg or any of the other cases cited to me as holding that there is no power to amend in cases where consent is required – only that the amendment cannot amount to changing the offence charged. In this case the charging sections, 148(1) and (2) remain the same, though that is a small somewhat technical observation. More important I think is whether the same "transaction" is involved.[4] The problem in Falkenberg was a change of transaction, from an allegedly perjurious general allegation to allegedly false specific testimony. Most important, I suggest, is whether the proposed amendment involves a change in the essential nature of what is being alleged.

Relevant Statutory Provisions

[18] The relevant sections of the CLC:

124. Every employer shall ensure that the health and safety at work of every person employed by the employer is protected

125(1). Without restricting the generality of section 124, every employer shall ….

(q) provide in the prescribed manner, each employee with the information, instruction, training and supervision necessary to ensure their health and safety at work.

122. "Prescribe" means prescribe by regulation of the Governor in Council….

148. Every person who contravenes any provision of the Part is guilty of an offence and liable ….

Single Offence, Multiple Routes

[19] It seems to me that both sections 124 and 125 do the same thing – impose a statutory duty on an employer to ensure the health and safety of employees. Section 125 provides a number of specific examples of what an employer must do - without restricting the generality of the duty in 124. Section 148 creates a single offence for failure to fulfill that duty in either manner. In my view these sections do not describe two offences but rather two routes by which a single offence might be committed.

[20] An analogy might be drawn to examples in the criminal context. A single offence of assault, robbery or murder can be reached by different paths through different statutory provisions all terminating at the same point, without distinction as to how that point was reached. No particular path need be specified in the charge; paths may change over the course of a trial; different jurors can follow different routes. See for example: R v Thatcher, [1987] 1 SCR 652; R v Farrant, [1983] 1 SCR 124 where the legal basis for liability for murder changed after the defendant had testified. See also: R. v. Khawaja, 2010 ONCA 862, [2010] O.J. No. 5471 (C.A.) at para 150.

Decision on Amendment

[21] In my view the proposed amendment can and should be made. It does not amount to changing the offence so does not offend the Falkenberg limitation on amendment. It causes no prejudice to the defendant and has the advantage of clarifying and simplifying the case for all concerned, permitting the focus to fall and remain on the central issue of whether the defendant failed in its single statutory duty to ensure employee safety in the ways set out in the counts.

Amended Counts

[22] Accordingly the counts are amended to repair the wording of the essential allegation and to read after the word "therefore":[5]

Count 10: … the employer failed to ensure the health and safety of its employees, contrary to section 124 of the Canada Labour Code Part II by failure to provide adequate supervision for daily flight activities at Moosonee, by eliminating the position of Base Manager thereby committing an offence under Subsection 148(1) of the Canada Labour Code Part II.

Count 11: … the employer failed to ensure the health and safety of its employees, contrary to section 124 by failure to provide adequate supervision for daily flight activities at Moosonee, by eliminating the position of Base Manager the direct result of which was the death of Mark Filliter and Jacques Dupuy thereby committing an offence under Subsection 148(2) of the Canada Labour Code Part II.

May 17, 2017

B. Duncan J.

B. Gover, F. Schumann for the defendant

N. Devlin, A. Hauk for the Crown

Appendix: Comparison of the Minister's Consent and the Information

Count	Consent	Information
3	… failed to provide to the pilots a means to enable them to maintain visual reference while operating at night under Visual Meteorological Conditions. The environment in which the flight was operating had a lack of environmental light which created a loss of visual reference to the surface and therefore created a situation whereby the pilots may have lost situational awareness. The employer failed to ensure that the health and safety of persons employed is protected contrary to Section 124 of the Canada Labour Code, Part II …	… failed to ensure employee safety, contrary to Section 124 of the Canada Labour Code Part II, by failing to provide pilots with a means to enable them to maintain visual reference while operating at night …
4	… the direct result of which is the death of Donald Mark Filliter and/or Jacques Dupuy, and thereby committing an offence under Subsection 148(2) of the Canada Labour Code, Part II.	… under, resulting in the death of Donald Mark Filliter and Jacques Dupuy and thereby committing an offence under Subsection 148(2) of the Canada Labour Code, Part II.
8	… failed to provide to the pilots with the requisite knowledge and training in the differences between the aircraft being a S-76A and the simulator. The pilots were hired to fly the S-76A helicopter and were getting hands on training on the S-76B, C, C+ or C++ simulator. Once the training was completed on the S-76B, C, C+ or C++ simulator they were expected to fly the S-76A with no additional hands on training. The employer failed to ensure that the health and safety of persons employed is protected, contrary to Section 124 of the Canada Labour Code, Part II …	… to ensure the health and safety of its employees, contrary to Section 124 of the Canada Labour Code Part II, by permitting pilots to fly the S-76A helicopter without adequate training in the operation of that specific aircraft …
9	… the direct result of which is the death of Donald Mark Filliter and/or Jacques Dupuy, and thereby committing an offence under Subsection 148(2) of the Canada Labour Code, Part II.	… resulting in the death of Donald Mark Filliter and Jacques Dupuy, thereby committing an offence under Subsection 148(2) of the Canada Labour Code, Part II.
10	… failed to provide adequate supervision for the daily activities as it relates to the functions of aviation, such as but not limited to, not verifying the Pilot Proficiency Check for Jacques Dupuy conducted on September 9th, 2012 or the training of Donald Mark Filliter as it relates to the COM 2.4 "Direct Entry Captain" procedure. Furthermore, the employer has demonstrated in the past, specifically prior to approximately April 2012, that an onsite Base Manager was provided at the bases. Therefore, the employer failed to provide in the prescribed manner each employee with the information, instruction, training and supervision necessary to ensure health and safety at work in contravention of Subsection 125.(1)(q) of the Canada Labour Code, Part II …	… failed to provide adequate supervision for daily flight activities at Moosonee, in contravention of section 125.(1)(q) of the Canada Labour Code Part II …
11	… the direct result of which is the death of Donald Mark Filliter and/or Jacques Dupuy, and thereby committing an offence under Subsection 148(2) of the Canada Labour Code, Part II.	… resulting in the death of Donald Mark Filliter and Jacques Dupuy, thereby committing an offence under Subsection 148(2) of the Canada Labour Code, Part II.
14	… failed to adequately monitor the pilots' Night Currency as it relates to flying the S-76A and specifically with Jacques Dupuy. The employer failed to ensure the health and safety of persons employed is protected, contrary to Section 124 of the Canada Labour Code, Part II, …	… failed to ensure the health and safety of its employees, contrary to Section 124 of the Canada Labour Code Part II, by permitting an aircraft to be flown by a pilot with insufficient experience in night operations, …
15	… the direct result of which is the death of Donald Mark Filliter and/or Jacques Dupuy, and thereby committing an offence under Subsection 148(2) of the Canada Labour Code, Part II.	… resulting in the death of Donald Mark Filliter and Jacques Dupuy, thereby committing an offence under Subsection 148(2) of the Canada Labour Code, Part II.

Footnotes

[1] This argument became moot when the Minister's consent containing these words appeared. See below.

[2] For some reason disclosure of the consent was not given until the trial was well under way. Crown counsel seemed to be as surprised with the content as the defence.

[3] Bell Canada v Unifor, 2014 OHSTC 19; Caron Transportation, 2012 OHSTC 14; Hand R Transport, 2015 OHSTC 13

[4] See R v Frisbee, 48 CCC 3d 386 (BCCA)

[5] I am open to receive any suggestions for tweaking this wording.