R. v. St. John, 2017 NLCA 71

Her Majesty the Queen as Represented by the Attorney General of Newfoundland and Labrador (applicant/appellant/respondent by cross-appeal) v. City of St. John’s (respondent/appellant by cross-appeal) (16/57 and 16/62) Indexed As: R. v. St. John’s (City) 2017 NLCA 71 2 C.A.N.L.R. 373 Court of Appeal of Newfoundland and Labrador Welsh, Harrington and Hoegg JJ.A. December 5, 2017

Summary: The City of St. John’s was convicted in provincial court of several offences under the Occupational Health and Safety Act , RSNL 1990, c. O-3 , after employees of the City, Irving Oil and the Department of Public Works visited a site on the Outer Ring Road, a provincial highway in St. John’s, to inspect the asphalt paving and were struck by an oncoming vehicle driven by a civilian, injuring two of the employees and killing Joseph English, a DPW employee. The City appealed the convictions to the

summary conviction appeal court, which concluded that the trial judge had erred in his analysis of the elements of the offences, and remitted the matter for a new trial. The Crown sought leave to appeal that decision and, if granted, appealed on the basis that the appellate judge should have read the decision as a whole to determine whether, based on the trial judge’s factual findings, the convictions were supported by the evidence. The City of St.

John’s sought leave to cross-appeal and, if granted, cross-appealed on the basis that the appellate judge erred by deciding the appeal on the basis of a new issue, and in not addressing the trial judge’s analysis of the defence of due diligence. Held: Appeal and cross-appeal dismissed (Hoegg J.A. dissenting in part). Welsh J.A (Harrington J.A. concurring): An appeal and cross-appeal from the decision of a

summary conviction appeal court is governed by section 839(1) of the Criminal Code . An appeal may be brought to this Court, with leave, on any ground that involves a question of law alone. In addition, the ground of appeal must be such that either the ground of appeal has a reasonable possibility of success, or the proposed question of law has significance to the administration of justice. Leave to appeal was granted. The issues on appeal and cross-appeal raised questions of law.

Further, consideration by this Court of what constitutes a “new issue” and the analytical approach to assessing the elements of an offence under the Occupational Health and Safety Act are questions of law of significance to the administration of justice. The appellate judge opined that the genesis of the error of the provincial court was the manner in which the charges were laid. The counts were framed in general wording without differentiating between the two accused employers. No particulars of the counts were sought or given, thus making it difficult to know the case to be met and to be adjudicated.

The judge also noted that the City led no evidence directed to either the actus reus of the offences or to the defence of due diligence. The charges against the City were considered at law to be strict liability offences. In such cases, the Crown does not have to prove wrongful intention ( mens rea ). Rather proof of the wrongful act alone will constitute prima facie proof of the offence; however an accused may avoid liability by proving that all reasonable care was taken to avoid the commission of the prohibited act (due diligence).

In other words, failure by the City to comply with a provision of the Act would form the basis for an offence, even if no accident had occurred. By the same token, if the City complied with the requirements of the Act and an accident occurred, there would be no basis for an offence. The appellate judge correctly concluded that it was an error of law for the trial judge to conclude that, without more, the motor vehicle’s

striking the employees in the course of their road inspection constituted prima facie proof of any of the offences charged and was therefore sufficient to put the City to proof of due diligence. Further the error was magnified when the same reasoning was applied to seven separate offences, each with its own constituent elements, but which elements were not identified by the trial judge. Since this approach permeated the whole conduct of the trial and the adjudication itself, the convictions cannot stand. The judge did not err in concluding that all the charges should be remitted for a new trial.

The trial judge determined that the actus reus of each offence had been proven. Counsel submit in this Court that, on appeal to the

summary conviction appeal court, they accepted, and did not put in issue, the trial judge’s decision regarding the actus reus . They submit that, by deciding the appeal on the basis of an error regarding the actus reus element of the offences, the appellate judge had decided the appeal on the basis of a “new issue” without giving them the opportunity to make submissions. Counsels’ concession was not binding on the appellate judge and did not constitute a “new issue”. The Court is not bound by positions taken by parties on questions of law.

The issue argued on appeal was not genuinely “new” in the sense of being legally and factually distinct from the issues litigated at trial. Issues that are rooted in or are components of an existing issue are not “new issues”. In the absence of a “new issue”, but where a concession made by counsel may be the subject of questions by the appellate court, the court has discretion to determine whether it is appropriate or necessary to seek further submissions from counsel. In making that decision, the judge may consider whether he or she is satisfied that the issue was sufficiently canvassed at the oral hearing.

It was open to the judge, in the exercise of his discretion, to request further submissions or to proceed on the basis of submissions made at the oral hearing in response to his questions. The appellate judge found it necessary to analyze the first component of the offences, the actus reus , before considering the second component, the defence of due diligence. There is no basis on which to conclude that the judge erred in the exercise of his discretion.

Thus the appeal and cross-appeal were dismissed Hoegg J.A. dissenting: All three issues on appeal involve the application of a legal standard to the facts of the case, and are therefore questions of law. The appeal and cross-appeal raise a procedural issue of significance to the administration of justice. Accordingly, leave to appeal and cross-appeal should be granted. Whether the evidence established the actus reus of the offences was not put in issue by the parties. The Judge’s decision was therefore a new basis for potentially finding error in the Judge’s decision.

In the circumstances, it was incumbent on the appellate judge to advise the parties that the new issue he raised could provide a different basis other than the City’s argument for allowing the appeal, and give them a meaningful opportunity to address it. Not to have done so is the basis on which leave to appeal and cross-appeal must be granted. When the Judge’s decision is read in its entirety, it is clear that his findings and reasoning support convictions on several of the offences charged.

The Judge’s findings show the City’s failure to maintain a safe workplace and provide the necessary training and supervision to ensure the safety of its workers and persons not in its employ and thereby prove counts 1, 2, 6, and 7. The Judge stated that there was a lack of evidence respecting the sufficiency and use of protective equipment. The failure of all employees to wear high visibility vests could establish count 3, but given the Judge’s remarks it cannot be said that this offence was made out. Accordingly, a new trial should be ordered on this count.

The Judge’s findings arguably establish the actus reus of counts 4 and 5, although one could argue that his findings also suggest that the counts were not made out . Given this ambiguity and the fact that the substance of counts 4 and 5 is much the same as the substance of count 1, counts 4 and 5 should be stayed. Despite some structural flaws, when the Judge’s decision is read as a whole, his findings show that the actus reus of counts 1, 2, 6, and 7 was established. Moreover, the Judge correctly found that the City did not establish the defence of due diligence.

In the result leave to appeal from the SCAC respecting both the Crown’s appeal and the City’s cross-appeal should be granted, the

Crown’s appeal allowed in substantial part by restoring the convictions against the City on counts 1, 2, 6 and 7. Counts 4 and 5 should bestayed, and a new trial ordered on count 3. The City’s cross-appeal should be dismissed. Cases cited: Welsh J.A.: R. v. Bussey, 2014 NLCA 18, 347 Nfld. & P.E.I.R. 349 Ernst v. Alberta Energy Regulator, 2017 SCC 1, [2017] 1 S.C.R. 3 R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686 Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712 R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689 R. v. Parsons, 2017 NLCA 64 Hoegg J.A.: R. v.

Newfoundland and Labrador (Department of Transportation and Works), 358 Nfld. & P.E.I.R. 299 R. v. Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299 R. v. Newfoundland Recycling Ltd., 2009 NLCA 28, 284 Nfld. & P.E.I.R. 153 R. v. Sheppard, 2009 SCC 35, [2009] 2 S.C.R. 527 R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689 Counsel: Iain Hollett, for the applicant/appellant/respondent by cross-appeal; Nick Avis Q.C., for the respondent/appellant by cross-appeal. This appeal was heard on June 14, 2017 before Welsh, Harrington and Hoegg JJ.A.

The following judgment was delivered on December 5, 2017 by Welsh J.A., concurred in by Harrington J.A., with separate dissentingreasons by Hoegg J.A. ______________________________________________________________ Welsh J.A.: [1] The City of St. John’s was convicted in provincial court of several offences under the Occupational Health and Safety Act,RSNL 1990, c. O-3. The City appealed the convictions to the

summary conviction appeal court. On that appeal, the judge (the“appellate judge”) concluded that the trial judge had erred in his analysis of the elements of the offences, and that it was necessary toremit the matter for a new trial. The Crown seeks leave to appeal that decision and, if granted, appeals on the basis that the appellatejudge, rather than allowing the appeal and remitting the matter for a new trial, should have affirmed the convictions on the grounds thatthe convictions were supported by the evidence. [2] The City of St.

John’s seeks leave to cross-appeal and, if granted, cross-appeals on the basis that the appellate judge erred bydeciding the appeal on the basis of a “new issue”, and in not addressing the trial judge’s analysis of the defence of due diligence. BACKGROUND [3] The events leading to the charges against the City are summarized in the appellate judge’s decision (2016 NLTD(G) 81, 382Nfld. & P.E.I.R. 194): [2] On July 5, 2011, employees of Irving Oil (four), the provincial government (Department of Public Works (“DPW”) (three), and theCity of St.

John’s (the “City”) (two) visited a site on the Outer Ring Road, a provincial highway in St. John’s. The intention was toinspect the asphalt paving. The Outer Ring Road is a 4-lane, 100 kph highway divided by a median. The employees in question came inthree vehicles and parked them on the right shoulder of the road, one with its four-way flashers on, another with an operating amber lightbar on its roof and its right indicator light on. In the course of the visit the employees, or some of them, were on the right shoulder, in the

median, or crossing the road. An oncoming vehicle driven by a civilian, Mr. Scott McAbee, approached the site, went out of control and veered into the median, injuring two of the employees (one from Irving and one from the City) and killing Joseph English, a DPW employee. [3] Following an investigation, DPW and the City were jointly charged on a single information with six breaches of the Act and the Regulations and separately with a further single breach. [ 4 ] After a ten-day trial, both DPW and the City were found guilty of all charges.

The City was fined a total of $23,000 and required to pay $37,000 for the purpose of developing a public education program on highway safety. [4] The appellate judge summarized the charges, at paragraph 20 of his decision: 1. Failure to provide and maintain a safe workplace; 2. Failure to provide training and supervision, etc., necessary to ensure safety; 3. Failure to ensure use of protective clothing; 4. Failure to ensure that safe work procedures were followed; 5. Failure to ensure that work procedures minimized any potential for injury; 6. Failure to ensure effective traffic control; 7.

Failure to protect non-employees from hazards of the employer’s undertaking. [ 5 ] The appellate judge allowed the City’s appeal, set aside the convictions, and ordered a new trial.

ISSUES [ 6 ] There are two preliminary issues: (1) granting of leave as required for the appeal and cross-appeal; and (2) whether the appellate judge decided the appeal on the basis of a new issue without giving counsel the opportunity to make submissions. [ 7 ] The issue on appeal is whether, after finding that the trial judge had erred in his analysis of the actus reus of the offences, the appellate judge erred by remitting the matter for a new trial rather than reading the decision as a whole to determine whether, based on the trial judge’s factual findings, the convictions were supported by the evidence. [ 8 ] The issue on cross-appeal is whether the appellate judge erred by failing to address the City’s defence of due diligence which had been rejected by the trial judge.

ANALYSIS Leave to Appeal [ 9 ] An appeal and cross-appeal from the decision of a

summary conviction appeal court regarding an offence under the Occupational Health and Safety Act , RSNL 1990, c. O-3, is governed by section 839(1) of the Criminal Code ( Provincial Offences Act , SNL 1995, c. P-31.1,

section 6). Under section 839(1), an appeal may be brought to this Court, with leave, “on any ground that involves a question of law alone”. In addition, as set out in R. v. Bussey , 2014 NLCA 18 , 347 Nfld. & P.E.I.R. 349 : [11] … (

b) the ground(

s) of appeal must be such that: (

i) either the ground of appeal has a ‘reasonable possibility of success’, or (ii) ‘the proposed question of law [has significance] to the administration of justice’. [ 10 ] I am satisfied that the second preliminary issue regarding a “new issue” and the issues on appeal and cross-appeal, set out above, raise questions of law. They require this Court to determine and assess the principles of law that may apply and they raise questions as to whether relevant factors were taken into account by the appellate and trial judges.

Further, consideration by this Court of what constitutes a “new issue” and the analytical approach to assessing the elements of an offence under the Occupational Health and Safety Act in the context of an accident causing injury and death are questions of law of significance to the administration of justice. [ 11 ] Accordingly, I would grant leave to appeal.

The Appeal, Cross-Appeal and “New Issue” [ 12 ] For the reasons that follow, I am satisfied that the appellate judge did not decide the appeal on the basis of a “new issue” without giving counsel the opportunity to make submissions, and that the appeal and cross-appeal should be dismissed. To lay the foundation for the analysis regarding the “new issue”, it is convenient to deal first with the appeal and cross-appeal.

The Appeal and Cross-Appeal [ 13 ] In concluding that the appeal and cross-appeal should be dismissed, I rely substantially on the reasons set out in the appellate judge’s decision, with which I agree. Following is a

summary of the salient portions of that decision, together with comments.

[ 14 ] The appellate judge determined that the trial judge had erred by focusing on the fact of the accident rather than on the elements of each offence to be proven. The genesis of the error, the appellate judge opined, was the manner in which the charges were laid: [7] The City and DPW were jointly charged in a single information for counts 1-6; count 7 [relating to protection for non-employees] was separately charged. [8] It will be immediately apparent that with the possible exception of counts 3 and 6, the counts are framed in general wording and without differentiation between the two accused.

No particulars of the counts were sought or given, thus making it difficult to know the case to be met and to be adjudicated. [ 15 ] The appellate judge noted that the City “led no evidence directed to either the actus reus of the offences or to the defence of due diligence” (paragraph 9).

Documentary exhibits, such as training manuals, photographs and site diagrams, were entered by consent. [ 16 ] The appellate judge explained: [10] In my view, and with respect to all involved, any errors committed by the trial judge were in large measure due to the manner in which the case was approached and presented – more of which in a moment – the absence of particulars of each count, and the failure to differentiate between the two accused employers. [11] Much of the evidence at trial, and indeed much of the City’s argument on appeal, was directed to the fact of the motor vehicle accident and to attempting to show that there was nothing the City could have done to avoid the accident.

Essentially, the position taken was that the accident was caused by an inattentive driver who, incidentally, was found not to be a credible witness at trial. Therefore, so the argument went at trial and on appeal, no amount of occupational health and safety protection could have prevented the accident and the unfortunate injuries and fatality.

Accordingly, it was argued that there could be no breach of the legislation. [12] The trial judge, undoubtedly influenced by how the case was presented, found that the fact of the accident – in the employment- related circumstances before him – established the actus reus of each of the offences; once the offences were proven, the burden then shifted to the employers to establish due diligence and, in the absence of any evidence from the employers directed to due diligence, the trial judge entered findings of guilt. [ 17 ] Having accepted that the charges against the City were considered at law to be strict liability offences, the appellate judge explained: [15] In such cases the Crown does not have to prove wrongful intention ( mens rea ).

Rather proof of the wrongful act alone will constitute prima facie proof of the offence; however an accused may avoid liability by proving that all reasonable care was taken to avoid the commission of the prohibited act (due diligence). It is important to note that the ‘due diligence’ defence is directed to avoidance of the wrongful act – the actus reus of the offence, if you will – and not to the avoidance of the consequences, if any, of the breach. … [ 18 ] In other words, failure by the City to comply with a provision of the Act would form the basis for an offence, even if no accident had occurred.

By the same token, if the City complied with the requirements of the Act and an accident occurred, there would be no basis for an offence. [ 19 ] The appellate judge emphasized: [21] Proof of the actus reus – factual elements of the prohibited offence – in each case requires attention to the specific wording of each offence in order to identify and delineate those factual elements. They will not automatically be the same for each offence.

For example, one would expect the actus reus of the offence of failure to provide protective clothing would differ markedly from that of the offence of failure to provide effective traffic control.

And I reiterate that, for each offence, the actus reus must be proven before any issue of the employer’s due diligence becomes relevant. [ 20 ] In applying this principle, the appellate judge reviewed the trial judge’s decision, in particular: [26] He then turned to Count #1: 33. … [The employees’] actions, in terms of encroaching on the highway by parking on the shoulder, crossing the highway and conducting their inspection from the median and the shoulder side, were a contributing case ( sic ) in the traffic slowing down and driving inconsistently. Troy McAbee approached those vehicles.

He was not paying attention or was otherwise distracted and was late to recognize what the other drivers were doing. He then braked abruptly, lost control of his vehicle and struck the employees. The Crown has therefore proven a causal link to the accident, the actions of the employees and the workplace beyond a reasonable doubt ( actus reus ).

I must state that, even though there was a causal link, it was Troy McAbee’s poor driving that was the most direct cause of the accident. [27] There was no further discussion of the elements of the offence. [28] The judge went on to address due diligence with respect to Count #1. [29] Of the other counts, while addressing them separately, he simply said, in respect of each count and in respect of both accuseds – “For the reasons stated above [presumably paragraph 33, reproduced above] I find that the actus reus of the offence has been established beyond a reasonable doubt” (paras. 48, 51, 54, 58).

There was no discussion of the factual elements of the separate offences. The ‘blanket’ accident-oriented actus reus of Count #1 was simply applied to the other charges. [30] This approach was reflected in the trial judge’s conclusion, at paragraphs 62-63:

62. I have found that the accident that occurred on July 5, 2011 was causally linked to the actions of DTW and City employees on the Outer Ring Road. The employees were engaged in work of their employer that was within the scope of their duties. Therefore, the actus reus of the offences has been established beyond a reasonable doubt. 63. In terms of each of the separate offences, I found that the employers failed to establish that they had taken all reasonable care and that the defence of due diligence had not been proven on a balance of probabilities.

After reviewing case law the appellate judge emphasized: [34] … It is of course true, as it was in this case, that an accident or incident may well provide the impetus for an investigation and the laying of charges, but the accident does not thereby become an element of the offence in question. [ 21 ] The appellate judge concluded: [37] In my view, it was an error of law for the trial judge to conclude that, without more, McAbee’s motor vehicle’s striking the employees in the course of their road inspection constituted prima facie proof of any of the offences charged and was therefore sufficient to put the City to proof of due diligence.

Further, and with respect, the error was magnified when the same reasoning was applied to seven separate offences, each with its own constituent elements, but which elements were not identified by the trial judge. [38] Since this approach, with its emphasis on the consequences of any breach rather than on the identification and proof of the actual elements of each breach, permeated the whole conduct of the trial and the adjudication itself, the convictions cannot stand.

Proof of the actus reus of each offence was found based on a faulty legal premise and without differentiation between the counts. … [ 22 ] In the result, the appellate judge allowed the appeal, set aside the convictions and ordered a new trial. However, by way of obiter dicta , he included the following comments: [39] … 1. In order to facilitate a focused adjudication, consideration should be given to providing particulars of the facts said to support each count. Any particulars should be specific to the City and to each count. 2.

Any due diligence defence should be considered in reference to a specific count and should be directed to the avoidance of the breach (prohibited act) in question and not to the consequences of any alleged breach. Unless so stipulated by the relevant offence provision, the consequences of a breach are irrelevant in this context. 3.

Given the particular circumstances under consideration, care must be taken to distinguish between the acts and obligations of the City and those of the Department of Public Works. [ 23 ] The above analysis, with which I agree, leads me to conclude that all the charges should be remitted for a new trial.

The approach set out by the appellate judge, including his obiter dicta comments, sets the framework for consideration of each charge within the entire context of the events and the application of the Act to the specific employer. “New Issue” [ 24 ] As discussed above, the trial judge determined that the actus reus of each offence had been proven. Counsel submit in this Court that, on appeal to the

summary conviction appeal court, they accepted, and did not put in issue, the trial judge’s decision regarding the actus reus . They submit that, by deciding the appeal on the basis of an error regarding the actus reus element of the offences, the appellate judge had decided the appeal on the basis of a “new issue” without giving them the opportunity to make submissions. [ 25 ] I do not accept that proposition because counsels’ acceptance of the trial judge’s determination regarding the actus reus amounted to a concession which was not binding on the appellate judge. It did not constitute a “new issue”.

The difference between a concession and a “new issue”, and the effect of the difference, is discussed by the Supreme Court of Canada. [ 26 ] In Ernst v. Alberta Energy Regulator , 2017 SCC 1 , [2017] 1 S.C.R. 3 , Cromwell J., for the majority, noted that the Court “of course is not bound by positions taken by parties on questions of law” (paragraph 15). In Ernst , Cromwell J. referred to the decision in R. v. Sappier , 2006 SCC 54 , [2006] 2 S.C.R. 686 , where Bastarache J., for the majority, reiterated that the Court “has recognized that it is not bound by concessions of law” made by counsel.

Using different language, in Quan v. Cusson , 2009 SCC 62 , [2009] 3 S.C.R. 712 , McLachlin C.J.C., for the majority, referred to whether the appeal “in fact raised a new issue” (paragraph 38): [39] In this case it was much less clear than in Wasauksing First Nation that the issue argued on appeal was genuinely “new” in the sense of being legally and factually distinct from the issues litigated at trial. … [ 27 ] In R. v.

Mian , 2014 SCC 54 , [2014] 2 S.C.R. 689 , Rothstein J., for the Court, also referring to Quan , reiterated: [30] … Genuinely new issues are legally and factually distinct from the grounds of appeal raised by the parties ( see Quan …) and cannot reasonably be said to stem from the issues as framed by the parties. … [31] In defining what a new issue is, it is important to recognize what will not constitute a new issue raised on appeal. First, not all questions asked by an appeal court will constitute a new issue.

The jurisdiction of appellate courts to ask questions during the oral hearing is well established. … Nothing in these reasons should be construed as limiting the ability of appellate judges to ask any question in the course of the oral hearing. [32] Questions raised during the oral hearing may properly touch on a broad range of issues, which may be components of the grounds of appeal put forward by the parties, or may go outside of those grounds in an aim to understand the context, statutory background or larger implications. … Absent any concerns about bias, questions raised during the oral hearing, whether linked directly or by extension

to the grounds of appeal or not, are not improper (see W. (G.), [ (SCC), [1999] 3 S.C.R. 597], at para. 17). Suchquestions may be necessary for the court to gain a more complete understanding of the issues at hand. [33] Second, issues that are rooted in or are components of an existing issue are also not “new issues”. Appellate courts may drawcounsel’s attention to issues that must be addressed in order to properly analyze the issues raised by the parties.

For example, in a caseinvolving a claim of self-defence, the parties may argue exclusively over whether the accused’s belief that his life was in danger wasreasonable, but it may be necessary for the court to first analyze the issue of whether the accused subjectively believed that he was at riskof death. This is not a “new issue”, but a component of the overall analysis of the grounds as raised by the parties.

However, whereappropriate, the court may have to be prepared to grant even a brief adjournment to allow the parties to consider and canvass the issue. [28] In the absence of a “new issue”, but where a concession made by counsel may be the subject of questions by the appellate court,the court has discretion to determine whether it is appropriate or necessary to seek further submissions from counsel.

In making thatdecision, the judge may consider whether he or she is satisfied that the issue was sufficiently canvassed at the oral hearing. [29] What is involved in this case is a concession by both counsel that the actus reus of the offences had been established asdetermined by the trial judge by virtue of the accident, injuries and loss of life that occurred.

The appellate judge challenged thisconcession and ultimately concluded that it amounted to an error by the trial judge. [30] A review of the transcript indicates that, at the beginning of the hearing immediately after counsel had identified themselves, theappellate judge raised the question of the actus reus in relation to the accident: THE COURT: All right, let me just ask a couple of questions before we get into it. I’ve read the material. Mr. Avis, is the, in your viewis the, the accident itself a necessary element of each or any of the counts? AVIS, Q.C.: I’ve sort of anticipated that question.

The city chose in this case, I’m sorry, the occupational health and safety chose in thiscase to establish that there were violations by virtue of the accident. Strictly speaking, you can violate the Act without an accident, yes. THE COURT: Yeah, that was my sense and I wondered about all of the stuff in the judgment about the accident and the causalrelationship and what have you.

AVIS, Q.C.: … I have to say that this whole area is not as clear as it might be. … [31] The appellate judge’s concern regarding the manner in which the trial judge relied on the fact of the accident to establish theactus reus, without reference to the elements of each offence, is raised more than once. Indeed, the appellate judge asked manyquestions of counsel throughout the hearing, focusing on areas of the law and submissions on which he sought clarification.

Asdiscussed above, in such circumstances, the appellate judge has discretion to determine whether it is appropriate or necessary to seekadditional submissions from counsel. [32] Further, in determining whether a “new issue” has been raised, it is necessary to consider the grounds of appeal. The notice ofappeal filed by the City in the

summary conviction appeal court, requesting that the convictions be overturned and acquittals entered onall charges, set out several grounds of appeal, including: 1. The Trial Judge erred in holding that the [City’s] employees were not adequately trained. 2. The Trial Judge erred in holding that the [City] did not take all reasonable steps to avoid the hazard. 3. The Trial Judge erred in holding that the hazard was foreseeable. 4.

The Trial Judge erred in holding that the [City] was responsible for the actions of its employees because of their seniority and thatthey were acting within the scope of their duties in terms of workplace safety. 7. The Trial Judge erred in holding that the [City’s] employees were not in compliance with

Section 161.1 of the Highway Traffic Act. [33] While the second ground of appeal deals particularly with the issue of due diligence, the grounds generally are broad in scope,permitting a range of specific issues to be considered in challenging the convictions. [34] The appellate judge’s consideration of the actus reus in this case is similar to the self-defence example in Mian, at paragraph 33. That is, the appellate judge found it necessary to analyze the first component of the offences, the actus reus, before considering thesecond component, the defence of due diligence.

These issues form part and parcel of the overall analysis of the basis for the appeal. The question regarding the actus reus of the offences clearly was not “legally and factually distinct from the grounds of appeal raised bythe parties” and could “reasonably be said to stem from the issues as framed by the parties” (Mian, at paragraph 30). I would distinguishthis situation from, for example, the genuinely new issue regarding the application of

section 11(

b) of the Canadian Charter of Rightsand Freedoms in R. v. Parsons, 2017 NLCA 64, where the appeal on the question of delay, unrelated to the elements of the charges, hadnot been raised at trial. [35] Consideration of the actus reus of the offences by the appellate judge involved assessment of a concession by counsel on aquestion of law, not a “new issue”. It was open to the judge, in the exercise of his discretion, to request further submissions or to proceedon the basis of submissions made at the oral hearing in response to his questions. There is no basis on which to conclude that the judgeerred in the exercise of his discretion.

SUMMARY AND DISPOSITION [36] In

summary, I would grant leave to appeal and cross-appeal. I am satisfied that the question regarding the actus reus of theoffences as assessed by the

summary conviction appeal judge did not constitute a “new issue”, and that the appellate judge did not err in

exercising his discretion to address the issue of the actus reus without seeking further submissions from counsel. [ 37 ] I would dismiss the appeal and cross-appeal substantially for the reasons stated by the

summary conviction appeal judge. Dissenting Reasons by Hoegg J.A.: INTRODUCTION [ 38 ] On July 5, 2011, two employees from the City of St. John’s (City), three from the provincial Department of Transportation and Works (DTW), and four from Irving Oil were assessing the degradation of asphalt on the Outer Ring Road (ORR), a provincial highway situated in St. John’s. At the same time, a driver travelling east on the ORR lost control of his car and struck three of the employees, killing one and injuring the other two.

Both the City and DTW were convicted at trial of seven breaches of the Occupational Health and Safety Act , RSNL 1990, c. O-3 ( Act ) in relation to the incident. [ 39 ] The City appealed its convictions to the

Summary Conviction Appeal Court (SCAC), and the SCAC Justice allowed the appeal and ordered a new trial. The Crown seeks leave to appeal and the City seeks leave to cross-appeal the SCAC decision. The parties support each other’s leave applications, and argue that the decision of the SCAC be set aside. The Crown requests that the City’s cross- appeal be dismissed and the convictions restored. The City requests dismissal of the first six charges and a finding of guilt on the seventh charge. LITIGATION HISTORY Background [ 40 ] The ORR is a four-lane highway divided by a median.

The nine employees arrived at the designated worksite on the ORR in three different vehicles which they parked one after the other on the right shoulder of the road facing east. The last of the vehicles, a DTW van, had its right signal light and a flashing amber roof light on. Three of the nine employees, including one of the two City employees, were wearing reflective safety vests. In the course of carrying out their task, the employees were variously crossing the road, on the road shoulders, or in the median. [ 41 ] The speed limit on the ORR is 100 km per hour.

At the time of the accident traffic was moderate and vehicles were traveling both east and west at various speeds as they approached the area where the employees were. Visibility was good. The road was wet but it was not raining. One of the vehicles approaching from the west, driven by Troy McAbee, went out of control and veered onto the median, striking the three employees. [ 42 ] The seven offences under the Act of which the City was convicted are: 1. On or about the 5th day of July, 2011 A.D., at or near the Trans Canada Highway at or near St.

John’s, in the province of Newfoundland and Labrador, did fail, as an employer, where it is reasonably practicable, to provide and maintain a workplace and the necessary equipment, systems and tools that are safe and without risk to the health of his or her workers, contrary to

Section 5 (a), Occupational Health and Safety Act , thereby committing an offence contrary to Section 67(1) (

a) of the Occupational Health and Safety Act , R.S.N.L. 1990,

Chapter O-3, as amended. 2. On or about the 5th day of July, 2011 A.D., at or near the Trans Canada Highway at or near St. John’s, in the province of Newfoundland and Labrador, did fail, as an employer, where it is reasonably practicable, to provide the information, instruction, training, supervision and facilities that are necessary to ensure the health, safety and welfare of his or her workers, contrary to

Section 5 (b), Occupational Health and Safety Act , thereby committing an offence contrary to Section 67(1) (

a) of the Occupational Health and Safety Act , R.S.N.L. 1990,

Chapter O-3, as amended. 3. On or about the 5th day of July, 2011 A.D., at or near the Trans Canada Highway at or near St. John’s, in the province of Newfoundland and Labrador, did fail, as an employer, to ensure that necessary protective clothing and devices are used for the health and safety of his or her workers, contrary to Section 14(2), Occupational Health and Safety Regulations , thereby committing an offence contrary to Section 67(1) (

a) of the Occupational Health and Safety Act , R.S.N.L. 1990,

Chapter O-3, as amended. 4. On or about the 5th day of July, 2011 A.D., at or near the Trans Canada Highway at or near St. John’s, in the province of Newfoundland and Labrador, did fail, as an employer, to ensure that safe work procedures are followed at all workplaces, contrary to Section 14(3), Occupational Health and Safety Regulations , thereby committing an offence contrary to Section 67(1) (

a) of the Occupational Health and Safety Act , R.S.N.L. 1990,

Chapter O-3, as amended. 5. On or about the 5th day of July, 2011 A.D., at or near the Trans Canada Highway at or near St. John’s, in the province of Newfoundland and Labrador, did fail, as an employer, where it is reasonably practicable, that work procedures promote the safe interaction of workers and their work environment to minimize the potential of injury, contrary to Section 14(4), Occupational Health and Safety Regulations , thereby committing an offence contrary to Section 67(1) (

a) of the Occupational Health and Safety Act , R.S.N.L. 1990,

Chapter O-3, as amended. 6. On or about the 5th day of July, 2011 A.D., at or near the Trans Canada Highway at or near St. John’s, in the province of Newfoundland and Labrador, did fail, as an employer, to ensure that where the movement of vehicular traffic constitutes a hazard to workers, effective traffic control shall be provided, contrary to Section 373(2), Occupational Health and Safety Regulations , thereby committing an offence contrary to Section 67(1) (

a) of the Occupational Health and Safety Act , R.S.N.L. 1990,

Chapter O-3, as amended.

7. On or about the 5th day of July, 2011 A.D., at or near the Trans Canada Highway at or near St. John’s, in the province ofNewfoundland and Labrador, did fail, as an employer, where it is reasonably practicable, to conduct his or her undertaking so thatpersons not in his or her employ are not exposed to health or safety hazards as a result of the undertaking, contrary to

Section 5(d),Occupational Health and Safety Act, thereby committing an offence contrary to Section 67(1)(

a) of the Occupational Health and SafetyAct, R.S.N.L. 1990,

Chapter O-3, as amended. Section 67(1)(

a) reads: A person who contravenes this Act or the regulations is guilty of an offence. The Trial [43] In his decision, R. v. Newfoundland and Labrador (Department of Transportation and Works), 358 Nfld. & P.E.I.R. 299, the trialJudge (the Judge) correctly characterized the charges as public welfare strict liability offences governed by the law as set out in R. v.Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299.

He also focused on the circumstances of the accident, but recognizedthat proof of the charges required more than proof of the accident, saying, at paragraph 25: Having determined that the offences alleged fall into that category of strict liability regulatory offences, it is for the Crown to establishthe actus reus beyond a reasonable doubt. What constitutes the sufficiency of this proof in the context of a workplace accident? Something more than an accident in the workplace is required. A causal connection must be proven by the Crown.

The Crown mustshow that the accident or incident occurred while the worker was engaged in the work of the employer and was related to or connected tothe performance of the work of the employer. … [44] At paragraph 32 of his decision, the Judge identified the issues: The issues in this case have been simplified to whether the Crown has established the actus reus of each offence beyond areasonable doubt and, if so, has the defence, on a balance of probabilities, established due diligence. … And at paragraph 33 he concluded that the Crown had established a causal connection between the accident and the actions of theemployees engaged in the work of their employer at a workplace thereby proving the actus reus of the offences: The roadside inspections on the Outer Ring Road were a workplace.

Both City and DTW employees were present and engaged in thework of their employer on July 5, 2011. Their actions, in terms of encroaching on the highway by parking on the shoulder, crossing thehighway and conducting their inspection from the median and the shoulder side, were a contributing cause in the traffic slowing downand driving inconsistently. Troy McAbee approached those vehicles. He was not paying attention or was otherwise distracted and waslate to recognize what the other drivers were doing. He then braked abruptly, lost control of his vehicle and struck the employees.

TheCrown has therefore proven a causal link to the accident, the actions of the employees and the workplace beyond a reasonable doubt(actus reus). I must state that, even though there was a causal link, it was [Troy] McAbee’s poor driving that was the most direct causeof the accident. [45] The Judge went on to explain how due diligence can be established, saying that foreseeability of hazard in a work situation andhow work is managed in the face of such hazard are key to whether the defence is made out.

The Judge identified the worksite hazard tobe traffic and at paragraph 34, he described the duty on an employer in such a case: … to take such reasonable steps as were necessary to get a driver’s attention. Safe work protocols should be in place to deal with thenormal scope of drivers in usual, though varied, driving conditions. Such reasonable protocols would provide a safe work environment. This would serve the employer in two respects. Workers would be reasonably insulated from foreseeable risks and such protection mighteven provide insulation from isolated unanticipated risks, such as a drunk driver.

The latter, though welcome, would be an unanticipatedbenefit. Employers could point to the actions that they had taken to address the foreseeable risks and could rightly assert that they hadbeen diligent. [46] The Judge found that the City had failed to establish on a balance of probabilities that it had taken all reasonable care to managethe traffic hazard at the workplace, and held that the defence of due diligence had not been established.

At paragraphs 46-61, the Judgelisted each of the offences charged and referenced his prior findings and reasoning before entering convictions on each of them. [47] The City appealed its convictions on grounds related to the Judge’s treatment of its due diligence defence. The Appeal to the SCAC [48] The SCAC Justice overturned the City’s convictions and ordered a new trial, saying that the Judge had erred in determining thatthe actus reus of each of the offences had been established by the fact of the accident (R. v. St.

John’s (City), 2016 NLTD(G) 81): [12] The trial judge, undoubtedly influenced by how the case was presented, found that the fact of the accident – in the employment-related circumstances before him – established the actus reus of each of the offences; once the offences were proven, the burden thenshifted to the employers to establish due diligence and, in the absence of any evidence from the employers directed to due diligence, thetrial judge entered findings of guilt. [13] In my view, in so finding the actus reus of each count to be proven, the trial judge committed legal error, reviewable on appeal on astandard of correctness.

At paragraph 37, the SCAC Justice summarized his reasoning:

In my view, it was an error of law for the trial judge to conclude that, without more, McAbee’s motor vehicle’s striking the employees in the course of their road inspection constituted prima facie proof of any of the offences charged and was therefore sufficient to put the City to proof of due diligence. Further, and with respect, the error was magnified when the same reasoning was applied to seven separate offences, each with its own constituent elements, but which elements were not identified by the trial judge.

The Appeal to this Court [ 49 ] The Crown appeals the SCAC justice’s decision, arguing that he erred by not giving notice to the parties that he was going to decide the case on an issue not raised or argued, and also that he erred by failing to read the trial decision as a whole and failing to consider that the convictions were reasonable and well supported by the evidence. [ 50 ] The City agrees that the SCAC Justice erred by not giving notice to the parties that he was going to decide the appeal on an issue not raised or argued and also by not reading the Judge’s decision as a whole or considering the reasonableness of his findings that the actus reus of each of the offences charged was established on the evidence.

The focus of the City’s cross-appeal to this Court is that the SCAC Justice did not consider its grounds for appeal to the SCAC, specifically its arguments respecting due diligence, and submits that it would be a manifest injustice if the City had to face retrial without its due diligence arguments being considered by this Court. ISSUES [ 51 ] The following issues arise: 1. Did the SCAC Justice decide the City’s appeal on a new issue without proper notice to the parties? 2. Were the actus reus of the offences established at trial? 3. Did the City establish the defence of due diligence at trial?

LEAVE TO APPEAL [ 52 ]

Section 6 of the Provincial Offences Act, SNL 1995, c. P-31 provides that proceedings respecting provincial regulatory offences (like the provincial regulatory offences at issue in this case) are governed by the provisions of the Criminal Code respecting

summary proceedings. Accordingly, appeals from trial decisions on such offences go to the SCAC, and appeals from the SCAC come to this Court pursuant to

section 839 of the Code .

Section 839 stipulates that such appeals require leave, and for leave to be granted the appeal must involve a question of law alone that (

a) has a reasonable possibility of success, or (

b) has significance to the administration of justice ( R. v. Newfoundland Recycling Ltd. , 2009 NLCA 28 , 284 Nfld. & P.E.I.R. 153 , at para. 9 ). Both parties argue that the test has been met and that leave should be granted. [ 53 ] All three issues involve the application of a legal standard to the facts of the case, and are therefore questions of law.

While the issues are grounded in the Judge’s factual findings, whether the factual findings amount at law to proof of the actus reus of the various offences, a successful defence of due diligence, or the raising of a new issue by the Court are questions of law ( R. v. Sheppard , 2009 SCC 35 , [2009] 2 S.C.R. 527 at para. 20 ). The appeal and cross-appeal raise a procedural issue of significance to the administration of justice. As well, for reasons which will become clear below, I am of the view that the appeal should succeed, and that it would therefore have a reasonable possibility of success.

Accordingly, I would grant leave to appeal and cross-appeal. ANALYSIS Failure to Provide Parties Notice of a New Issue [ 54 ] In R. v. Mian , 2014 SCC 54 , [2014] 2 S.C.R. 689 , the Supreme Court of Canada considered when and how an appellate court can consider an issue not advanced by the parties.

The Court described such an issue as a “new” issue, and defined it as one that “raises a new basis for potentially finding error in the decision under appeal beyond the grounds of appeal as framed by the parties” and which is “legally and factually distinct from” and “cannot reasonably be said to stem from the issues as framed by the parties” (paragraph 30).

The Court was careful to state that issues rooted in or which are components of an existing issue, and “issues that form the backdrop of appellate litigation” such as jurisdiction, remedies, and standard of review, are not new issues, and also noted that questions from the Bench do not necessarily raise new issues (paragraphs 31-34). The Court summarized at paragraph 35: In

summary, an appellate court will be found to have raised a new issue when the issue was not raised by the parties, cannot reasonably be said to stem from the issues as framed by the parties, and therefore would require that the parties be given notice of the issue in order to make informed submissions. Issues that form the backdrop of appellate litigation will typically not be “new issues” under this definition.

Exercising the jurisdiction to ask questions during the oral hearing will not constitute raising a new issue, unless, in doing so, the appellate court provides a new basis for reviewing the decision under appeal for error. [ 55 ] The Court identified the principle of party participation in an adversarial system and the objective of searching for truth so as to do justice as competing considerations for an appellate court faced with a new issue, and went on to hold that an appellate court should exercise its discretion to raise a new issue only when failing to do so would risk an injustice (paragraph 41).

The Court defined “risk of injustice” in this context as “good reason to believe that the result would realistically have differed had the error [in the new issue] not been made” (paragraph 45), and stated that the standard of “good reason to believe” that the failure to raise the new issue would risk an injustice is a “significant threshold” to meet (paragraph 46).

The Court stipulated that before an appellate court can consider a new issue, it must have the jurisdiction and a sufficient basis in the record to do so, it must consider whether there would be procedural prejudice to any party (paragraphs 50-52), and it must give the parties notice of the new issue and an opportunity to respond to it (paragraph 54). [ 56 ] In this case, both the Crown and the City complain that the SCAC Justice did not give them any notice that he was going to

decide the appeal on whether the actus reus of the offences had been proved, and moreover, without addressing the grounds of appeal that were argued.

The City argues that the SCAC Justice effectively denied the City its right of appeal by remitting the matter for a new trial without considering its arguments, and that the “anomalous” result of the appeal could “not be more unfair”. [ 57 ] In his decision, the SCAC Justice found error in the Judge’s approach to the case, saying that he took the fact of the accident as proof that the actus reus of each offence was made out (paragraphs 12, 13 and 37 of the SCAC decision). Whether the evidence established the actus reus of the offences was not put in issue by the parties.

The SCAC Justice decided that the Judge’s focus on the accident as a consequence of the breaches, “rather than on the identification and proof of the actual elements of each breach”, was in error and ruled that the convictions could not stand (paragraph 38). The Judge’s decision was therefore “a new basis for potentially finding error” in the Judge’s decision ( Mian , at paragraph 30 ). [ 58 ] The SCAC Justice clearly had jurisdiction and a sufficient record on which to decide the new issue.

The SCAC Justice did raise the issue of sufficient particulars to establish the actus reus for each of the counts with Crown counsel at the hearing, and queried whether the offences could be made out if the accident had not occurred. Counsel explained that while the offences charged were committed regardless of the accident, the accident resulted in the charges for “where there is harm there is foul”.

Following this short discussion, the City presented its appeal, arguing that the City did not control the workplace on the ORR that day and that the actions of its employees were fine and that it could not have done anything to prevent Mr. McAbee’s poor driving which caused the accident.

The Crown’s submission focused on the City’s due diligence arguments and the role played by the concept of foreseeability of hazard in the defence and whether the evidence established the defence at trial. [ 59 ] The SCAC Justice did not directly or indirectly advise the parties that the issue he raised was a potential basis for allowing the City’s appeal, or consider prejudice to the parties by dealing with the new issue or whether an injustice would result if the new issue were not addressed. The parties did not have the opportunity to make submissions on the new issue and related matters.

In a written decision issued several days after the appeal hearing, the SCAC Justice allowed the City’s appeal and ordered a new trial on the basis of the new issue and without considering the City’s grounds of appeal. [ 60 ] In the circumstances it was incumbent on the SCAC Justice to advise the parties that the new issue he raised could provide a different basis other than the City’s argument for allowing the appeal, and give them a meaningful opportunity to address it. Not to have done so is the basis on which leave to appeal and cross-appeal must be granted.

This is not to say that the concerns of the SCAC judge were unjustified. Rather it is to say he ought to have given the parties an informed opportunity to be heard on matters related to his concern about whether the actus reus of the counts were proved. Leave to appeal and cross-appeal will enable the parties to do so. The Actus Reus of the Offences [ 61 ] The parties agree that the evidence was sufficient to support the Judge’s determination that the actus reus of the offences charged was proved.

The Crown also argues that even if the Judge had made an error in the course of his decision, the convictions were reasonable and well supported by the evidence. [ 62 ] I mostly agree with the parties. When the Judge’s decision is read in its entirety, it is clear that his findings and reasoning support convictions on several of the offences charged. Let me explain. [ 63 ] The Judge did focus on the accident. He began his decision by reference to case law supporting the proposition that proof of an accident can be proof of the actus reus .

However, he stated that “something more than an accident [was] required” to establish the actus reus of the offences in this case. That “something more” was that the accident must have occurred while the workers were engaged in the work of the employer and it must relate or connect to the performance of the work of the employer (paragraph 25 of the Judge’s decision).

At paragraph 33, he found that “City employees were present and engaged in the work of their employer on July 5, 2011” and “[t]heir actions, in terms of encroaching on the highway by parking on the shoulder, crossing the highway and conducting their inspection from the median and the shoulder side, were a contributing cause in the traffic slowing down and driving inconsistently”. The Judge did not relate this conclusion to any of the particular offences charged at that point in his judgment.

Rather, he discussed the evidence and made factual findings throughout his decision, and near its end he considered each of the offences charged and referred back to the evidence, his findings and his reasoning before finding the City guilty of each offence. [ 64 ] In relation to the offences charged, the Judge found that there had been no identification of the traffic hazard, no discussion of safety, no risk planning for the task at hand, that the employees did not have training for the type of work they were undertaking that day, and that the work environment did not promote the safe interaction of workers or minimize the potential for injury to them or others (paragraphs 8, 14, 36-42).

These findings show the City’s failure to maintain a safe workplace and provide the necessary training and supervision to ensure the safety of its workers and “persons not in [its] employ” and thereby prove counts 1, 2, 6, and 7. [ 65 ] The evidence disclosed that one of the City employees was wearing a high visibility vest. Nevertheless, at paragraphs 44-46, the Judge stated that there was a lack of evidence respecting the sufficiency and use of protective equipment. He appears to have accepted that despite this lack of evidence, the actus reus of count 3 was established.

It would seem to me that the failure of all employees to wear high visibility vests, which I regard to be protective equipment, could establish count 3, but given the Judge’s remarks I cannot say this offence was made out. Accordingly, I would order a new trial on this count, should the Crown opt to so proceed. [ 66 ] The Judge’s findings at paragraphs 41-42 and 44-46 of his decision arguably establish the actus reus of counts 4 and 5, although one could argue that his findings also suggest that the counts were not made out .

Given this ambiguity and the fact that the substance of counts 4 and 5 is much the same as the substance of count 1, I would stay counts 4 and 5. [ 67 ] More must be said about the Judge’s findings respecting count 6 – lack of effective traffic control, found throughout his decision. As noted above, the City did not identify traffic as a risk hazard, and had no plan or took any steps to manage the traffic risk (see paragraphs 33 and 44). These findings establish count 6. [ 68 ] Sault Ste.

Marie directs that the procedure to be followed in a case of this nature requires that the actus reus must first be established, and if so, then the defence of due diligence must be considered. The Judge did not follow this approach in his decision. He

did not consider the individual counts in conjunction with the evidence and make his findings respecting the actus reus of each one . Instead, his findings were scattered throughout his decision and buried in his consideration of the City’s defence of due diligence. Despite this structural flaw, the Judge’s decision does not disclose material error which could have impacted his ultimate decision respecting counts 1, 2, 6, and 7 as charged. When his decision is read as a whole, his findings show that the actus reus of counts 1, 2, 6, and 7 were established.

Due Diligence [ 69 ] The City acknowledges its guilt with respect to failing to protect non employees from the hazards of its undertaking (count 7), but argues that it should not be convicted of the other six counts because its defence of due diligence respecting them was established at trial. [ 70 ] In Sault Ste.

Marie , the Court explained the difference between true criminal offences and public welfare offences and ruled that in the prosecution of a public welfare offence, the Crown is relieved of the burden of proving mens rea because of “the virtual impossibility in most regulatory cases of proving wrongful intention” (page 1325). Instead, once the Crown had proved the actus reus of an offence beyond a reasonable doubt, the burden shifts to the defendant to prove, on the balance of probabilities, that it took all reasonable care to avoid the commission of the offence.

This burden has come to be known as the defence of due diligence. [ 71 ] At trial, at the SCAC, and in this Court, the City argued that carrying out the asphalt assessment on the ORR did not require consideration of associated risks, a plan of action, or actions which addressed traffic control or other safety issues.

Rather, the City relied on the notion that carrying out the asphalt assessment on the ORR on July 5, 2011 involved no more than common sense and the application of basic safety measures one learns as a licensed driver, or even as a child, such as not to cross the street when a car is coming and how and when to safely exit a vehicle. In sum, the City’s position is that the work task did not require special training or behavior, risk assessment, or implementation of safety measures, and that the fact that there was an accident was not as a result of the City’s lack of due diligence, but entirely due to Mr.

McAbee’s poor driving. [ 72 ] The City called little evidence relative to establishing due diligence. There was no evidence respecting training of employees respecting safety issues relative to the task that they were carrying out on the ORR on July 5, 2011 or other training respecting general safety in workplaces. It did not tender evidence that it had policies or systems in place to address making workplaces safe or supervising and monitoring compliance with such policies. [ 73 ] The City employees who gave evidence testified in support of the City’s common-sense theory.

They were unable to inform the trial court of safety training they received relative to work situations such as the one they had been engaged in on the ORR that day, and neither could they say that safety was considered that day. Their evidence was that an assessment of workplace risks was not undertaken in planning for the asphalt assessment on the ORR, that measures to control traffic were not identified or taken, and that the wearing of high visibility protective clothing was not discussed although one of the two City employees was wearing a safety vest.

By the time one of the City employees recognized the traffic hazard, it was too late. [ 74 ] The Judge found that the evidence of the City’s employees, and that of the other employees which bore on the charges against the City, disclosed that no consideration had been given to risks associated with carrying out the asphalt assessment on the ORR on July 5, 2011 and that safety issues had not been addressed at all by the City in the task planning. He noted that the safety manual for carrying out road work which the City introduced into evidence was inapplicable to the ORR task.

He found that there had been no attention given to address the foreseeable traffic hazard and that no traffic control measures had been implemented, and also that no attention had been given to ensuring that high visibility protective clothing or devices were worn. He also found that there was no evidence that the City had systems to monitor and supervise its workplaces, or policies to ensure employees complied with safe work practices.

The Judge concluded the defence of due diligence was not made out respecting any of the charges. [ 75 ] I agree with the Judge that the City did not establish the defence of due diligence, and I reject the notion that the work task on the ORR on July 5, 2011 simply involved the application of common sense and elementary safety rules. It seems to me that the work task undertaken on July 5, 2011 on the moderately busy 100 km per hour ORR called for recognition of the traffic hazard and attention to be paid to it by actually taking steps to manage the risk.

The presence and activity of nine men at the worksite on the ORR – in the road, on its shoulders, and in the median – without any measures taken to slow or otherwise manage approaching high-speed traffic and alert the driving public to activity on the ORR posed a foreseeable hazard to the nine employees and third parties. Traffic control measures such as cones, signage, reduced speed requirements, and flagmen directed to slowing the traffic, were indicated. Had such measures been put into place, Mr.

McAbee may well have been driving more slowly through the workplace and would have been less likely to lose control of his vehicle and strike the three employees. Likewise, had all employees been wearing high visibility protective vests, Mr. McAbee may have been visually alerted to the workplace activity at an earlier point in time and able to slow his vehicle without losing control of it. [ 76 ] Public protection offences like the ones charged in this case exist for a reason.

They serve to protect the public by setting standards of behavior for workplace activities which minimize risks of hazard to the extent that they can be reasonably minimized. Workplace hazards generally require more than common sense and elementary safety precautions. If the City had taken action to address the presenting risks, hazards and safety issues in its task of asphalt assessment on July 5, 2011, perhaps the accident would not have happened.

It is in this way that the fact of the accident is connected to the actions of the City employees and the actus reus of the offences; it is the lens through which the deficiencies that comprise the actus reus of the offences are seen. The set up and activity on the ORR that day was deficient. Much more could reasonably have been done to protect the workers, and third parties, of which Mr. McAbee is one, on July 5, 2011. [ 77 ] In the result, the actus reus of counts 1, 2, 6 and 7 was established, and the city failed to establish the defence of due diligence.

Accordingly, convictions on counts 1, 2, 6, and 7 were in order. I add that I agree with the Crown’s submission that the Kienapple principle may well apply to counts 4 and 5 as the actus reus of those counts can be said to be encompassed in Count 1. For this reason and that noted in paragraph 51 above, I would stay counts 4 and 5. I would order a new trial on count 3.

SUMMARY [ 78 ] In the result, I would grant leave to appeal from the SCAC respecting both the Crown’s appeal and the City’s cross-appeal, allow the Crown’s appeal in substantial part by restoring the convictions against the City on counts 1, 2, 6 and 7. I would stay counts 4 and 5, and order a new trial on count 3. I would dismiss the City’s cross-appeal. Appeal dismissed, Hoegg J.A. dissenting. Cross-appeal dismissed.