Court throws out criminal negligence charge against boom truck operator

Charge was laid by police after worker's guilty plea to related OHSA charge; court calls second charge unfair
By Adrian Miedema
|employmentlawtoday.com|Last Updated: 08/03/2017

A boom truck operator who pleaded guilty to an Occupational Health and Safety Act (OHSA) charge after a workplace fatality, has had a criminal negligence charge against him stayed by the Ontario Superior Court of Justice. The boom truck toppled over, pinning a worker who died as a result. The operator’s failure to extend the outriggers and stabilizers resulted in the boom truck toppling over.

The police and Ministry of Labour investigated. The MOL charged the operator with offences under the OHSA. Almost two years after the incident, the operator pleaded guilty to one OHSA charge and was fined $3,500.  Apparently he thought that that would be the end of the matter.

He was wrong. Five months after the operator’s guilty plea on the OHSA charge (now more than two years after the incident), the police laid a criminal negligence charge against the operator arising from the same incident.

The court stated, at paragraph 40 of its decision:

“The evidence is clear that both the Ministry of Labour and the OPP had concluded within three days of the incident that they had reasonable and probable grounds to lay charges.The Ministry proceeded to lay charges on May 6, 2013, approximately 11 months following the incident. On April 17, 2014, approximately 11 months following the laying of the charges, the applicant pled guilty to one of the charges under the Occupational Health and Safety Act. Then on Sept. 12, 2014, five months after the plea of guilt, the charge of criminal negligence was laid. In total, 26 months and 23 days expired from the date of the incident to the laying of the criminal negligence charge.”

The court stated that there was no reason why the police and MOL investigations could not have proceeded in tandem. The sequence in which the charges were laid was unfair to the operator. At the very least, the Crown should have given an emphatic notice to the operator that he would likely be charged criminally. An accused person should be able to have a sense of security, when he makes a decision on a set of charges, that the decision resolves the case in its entirety.  According to the court, to have further charges laid after such a lengthy period of time and after the operator had pleaded guilty to the OHSA charge was unfair.

There was the potential for serious prejudice since the fact that he had pleaded guilty to the OHSA charge could possibly be put before the court in his criminal negligence case. Also, a witness had died in the interim.

The police’s act of laying criminal charges after the operator pleaded guilty to the OHSA charges constituted a breach of the sense of fair play, an act which offends the community. The court therefore stayed the criminal negligence charge, citing a breach of ss. 7 (right to life, liberty and the security of the person) and 11(d) (right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal) of the Canadian Charter of Rights and Freedoms.

For more information see:

  • R. v Campbell, 2017  (Ont. S.C.J.).

Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) 863-4678 or adrian.miedema@dentons.com. Adrian's discussion of this case also appears in the Dentons blog www.occupationalhealthandsafetylaw.com.

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