His Majesty the King - v. -, 2023 SKPC 50

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 50 Date: October 20 , 2023 Information: 991215012 Location: Regina _____________________________________________________________________________ Between: His Majesty the King - and - Brandt Industries Canada Ltd. Appearing: Ms. Buffy L. Rodgers For the Crown Mr. T. John Agioritis of MLT Aikins LLP For the Accused DECISION RE: MOTION FOR PARTICULARS D.

KOVATCH , J Background [ 1 ] On Information 991215012, Brandt Industries Canada Ltd. [Brandt] is charged with two offences under The Saskatchewan Employment Act , SS 2013, c S-15.1 [ The Saskatchewan Employment Act ]. Both charges arise out of a single workplace accident and injury that occurred on September 2, 2021. Brandt is charged as an employer that failed to provide any information, instruction, training and supervision that is necessary to protect the health and safety of a worker resulting in a serious injury to Ryder Aspen contrary to subsections 3-78(

g) and 3-79 of The Saskatchewan Employment Act .

[2] Brandt is also charged that as an employer, it failed to ensure that only trained operators were required or permitted tooperate mobile equipment resulting in a serious injury to Ryder Aspen, contrary to subsections 3-78(

g) and 3-79 of The SaskatchewanEmployment Act. [3] On Information 991210762, Brandt Industries Canada Ltd. faces four charges under The Saskatchewan Employment Act. Allof these charges relate to a single accident and injury that occurred on October 29 of 2020. In these charges it is alleged that a worker,Matthew Chislett sustained a serious injury. [4] Defence counsel advised he would like to enter not guilty pleas to all of the charges and have them set for trial. Both matterscame before me at the same time for a case management conference.

At that time, defence counsel advised that he had demandedparticulars of Crown counsel, but no particulars had been provided. Further, that he wished to make application to the Court for an orderfor particulars. It was agreed between counsel and the Court, as follows: defence counsel would bring the application for particulars onboth files. The Crown would of course respond. The applications would be argued together, before me. [5] It was further agreed that I would provide a decision regarding particulars on both matters.

Thereafter, we would discuss thetime needed for each trial and the trial dates would be set. I advised I was retiring at the end of this calendar year. It was agreed that mydecision on particulars would not seize me with either matter. In fact, it was agreed that a new and independent judge would beappointed to hear the trials for each of these matters. [6] This is my decision regarding the Aspen matter. A companion decision on the Chislett matter will be handed down on thesame date.

The law respecting an order for particulars [7] There is little dispute between counsel as to the law regarding the Court making an order for particulars. The issues hererelate to the application of that law to this specific case, and whether an order for particulars should be made. [8] In R v Côté, (SCC), [1978] 1 SCR 8 [Côté], the Court stated: … the golden rule is for the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of afull defence and a fair trial.

When, as in the present case, the information recites all the facts and relates them to a definite offenceidentified by the relevant

section of the Code, it is impossible for the accused to be misled. To hold otherwise would be to revert to theextreme technicality of the old procedure. Clearly, if the information meets this standard, no order should be made. In Côté, the Court did not find any objection to the charge, andthus did not deal with the granting of a remedy if the charge does not meet this standard.

However, I think it is well established that ifthe charge does not meet this standard, the Court might make an order that the charge does not disclose an offence known to law, ormight determine it is appropriate to make an order for particulars. [9] It is also clear that if the Court makes an order for particulars, the Crown must prove at least one of the particulars. See R vNalco Champion, 2018 SKPC 61 at paragraph 35. In this case the Crown argues, in part, that the defence is attempting to increase theburden upon the Crown through the use of particulars.

I agree that in some respects, an order for particulars will increase the burdenupon the Crown. However, in my view, the increased burden upon the Crown is not a reason to either grant or refuse to grantparticulars. It is merely an effect that flows from such a ruling. [10] It is also clear that an order for particulars is a discretionary remedy. Analysis re: Information 991215012 – The charges regarding Mr. Aspen

[ 11 ] One of the cases cited to me by counsel for the accused was R v Viterra Inc. , 2017 SKCA 51 . In my view, in that case, the Court of Appeal indicated that the Crown must prove the actus reus of the offence. The Crown must prove there was an accident causing injury, and that the employer breached a duty imposed upon it which was causally connected to the accident and injury. Once having done that, the onus shifted to the employer, who must then prove due diligence. The employer must establish that it took all reasonable steps to prevent or avoid the accident or injury.

Implicit in the Court of Appeal’s reasoning is that proof of the accident itself and how it occurred, may or may not prove the actus reus . Proof of the accident and the circumstances might, in and of themselves, prove a breach of duty of care. However, in other cases, additional evidence from the Crown may be required to prove a breach of the duty and its linkage to the accident and injury. [ 12 ] I reviewed this case in advance of the argument, and reviewed many of the materials provided by both counsel, in preparation for argument.

During oral argument, I suggested to counsel for the employer that Crown counsel was correct in stating that the argument in this case is pretty simple. Using materials for counsel for the accused, I summarized that argument as follows: Everyone knows or should know that you do not ride in a motor vehicle with an arm sticking out of the window. Such a practice is inherently unsafe. Similarly, in a warehouse, everyone knows or should know that you do not operate a forklift with one leg outside of or off the platform of the forklift. Such a practice is inherently unsafe.

There is a danger of colliding with something or wedging a leg between the machine and some other object. As a result, the Crown’s argument is that proof of the circumstances of this accident established that Mr. Aspen did not have adequate training in the operation of this equipment, or was not adequately supervised as he operated that machine. [ 13 ] I pause to point out that both legal counsel are very experienced and knowledgeable in dealing with workplace issues and injuries and these kind of charges. Both know this file very well; far better than the Court.

Neither counsel suggested I was wrong in this brief summation of the Crown argument. It seems to me that if the Court can simply review the materials filed by the accused, and then succinctly sum up the Crown argument; then the case that the accused is required to meet is fairly obvious and known to counsel. As a result, I would determine that the accused has not established any need for the particulars, and I would decline to grant those particulars. [ 14 ] In response to questioning and debate with me, counsel said he needed these particulars so that he could meet the due diligence requirement.

He asked what happens if the Crown says the breach occurred because they did not have a workplace meeting or focused on some other aspect of its duty to train and educate. In my view, this response conflates proof of the actus reus and the onus on the Crown with the due diligence requirements placed upon the accused and defence. Practically speaking, perhaps the defence argument is that it was not practicable or reasonably practicable to do more that what was done. Perhaps the argument is that there were no better practical means than what was done to satisfy the duty or requirements.

Perhaps, if the Crown makes such an argument, the defence seeks leave to reopen its case and adduce some specific evidence on that point. In my view, before the Court orders particulars, it should be satisfied that the accused does not know the case it has to meet. Here the case is known and no particulars are required. An order for particulars should not be made merely because Crown counsel might make some obscure or unforeseen argument. [ 15 ] For all of the above mentioned reasons, the application for particulars in relation to Information 991215012 is dismissed.

Dated at the City of Regina, in the Province of Saskatchewan, this 20 th day of October 2023. _______________________________ D. Kovatch, J