The 18-month sentence handed down Tuesday to a Quebec contractor who was convicted of manslaughter earlier this year for the death of an employee under his direct supervision on a work site is a first in Quebec legal history.
Lawyers familiar with the years-old case say it should serve as both a wake-up call and a warning for any and all employers of blue-collar workers in the province.
“I published an article about it two hours after the judgment was released,” says Éric Thibaudeau, a partner in Langlois lawyers’ Montreal office and a specialist in labour law and the area of occupational health and safety, who has been following the case closely since it began in 2012.
Thibaudeau says he advised clients involved in construction, industry and “any manual work” that serious workplace incidents are no longer the bailiwick of workers' compensation inspectors.
“It’s police now doing serious investigations and meeting with witnesses,” says Thibaudeau. “And if there is reckless disregard you can be criminally charged and convicted and face jail time.”
In a nine-page ruling that he read from the bench yesterday at the Montreal courthouse, Court of Quebec Judge Pierre Dupras sentenced contractor Sylvain Fournier to 18 months of jail time and two years probation for the death of Gilles Lévesque.
Lévesque died on April 3, 2012 in Lachine, Que. when a trench in which he and Fournier were working on a sewer line collapsed on them.
Lévesque was buried alive and died of a craniocerebral trauma.
Fournier suffered fractures in both legs and spent 10 days in hospital, the first two in a coma.
An investigation by Quebec’s Committee on Standards, Equity, Health and Safety at Work found numerous dangerous conditions on the fatal job site, including a lack of supports to prevent a cave-in and the overly steep slopes of the trench itself.
Fournier also had several previous violations of workplace safety on his record.
The contractor pleaded guilty in 2014 to a statement of offence under s. 237 of Quebec’s Occupational Health and Safety Act, which carries a penalty ranging from $15,000 to $300,000.
The three criteria under s. 237 are the commission of a statutory offence, failure to do due safety diligence and a reckless disregard of workplace dangers.
The Crown attorney’s office then got involved and charged Fournier with involuntary manslaughter and criminal negligence.
Fournier challenged the Crown’s right to lay charges, but he lost that legal challenge in the Superior Court of Quebec in April 2016.
He was convicted on the manslaughter charge on March 1 of this year.
In his decision, Dupras said Fournier “demonstrated an unruly recklessness or foolishness” in regards to Lévesque’s safety and security, saying the trench cave-in was “foreseeable.”
Fournier’s lawyer, Brigitte Martin, has already filed an appeal of the conviction on behalf of her client.
In his ruling yesterday, Dupras reiterated his comments about Fournier’s “recklessness” in regards to Lévesque’s safety.
He also rejected sentencing recommendations from both Martin and Crown prosecutor Sarah Sylvain-Laporte.
Martin had suggested Fournier serve 90 days of jail time on weekends plus three years of probation, including 240 hours of community work.
For her part, Sylvain-Laporte asked for three and a half years of incarceration, a request based largely on a recent decision by the Ontario Court of Appeal to uphold the conviction of Vadim Kazenelson in the Metron case over the gruesome deaths of four workers in 2009.
“Our position was that the jurisprudence in Kazenelson was appropriate and applicable in this case,” Sylvain-Laporte said in a phone interview today.
Though the judge disagreed, Sylvain-Laporte says the 18-month sentence he rendered nonetheless “sends a message to employers to make sure their workers are safe, if not they could go to prison.”