Her Majesty the Queen - v. -, 2012 SKPC 6

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 006 Date: May 16, 2012 Information: 24200198 Location: Nipawin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lorry Riemer Appearing: Mr. M. Miller For the Crown Mr. I. Carson For the Defendant JUDGMENT B. MORGAN , J Introduction [ 1 ] On April 18, 2008, in downtown Nipawin, Saskatchewan, a massive explosion blew up B.J.’s Sausage and Meats. The force of the explosion killed two individuals, and seriously injured five others.

The resulting fire destroyed two buildings adjacent to the butcher shop, and there was substantial collateral damage to other buildings outside the immediate blast zone, such as broken windows, damage caused by flying debris, etc. There is no question that the reason for the explosion was that gas had percolated through the ground and pooled in the basement of the meat store, and once the concentration of gas reached a certain level, something ignited it.

[ 2 ] It is also not contested that the reason the gas escaped was that Mr. Lorry Riemer, who was demolishing some buildings in the area, snagged a gas riser with his equipment. As will be detailed later, the result of this was that the service line that was connected to the riser pulled free of the main gas line, allowing the gas to seep into the butcher shop. [ 3 ] As a result of this, Mr.

Riemer was charged with two separate offences under The Occupational Health and Safety Act, 1993 , as follows: Count 1 - on or about the 18 th of April A.D. 2008 at or near Nipawin, Saskatchewan did fail to ensure that where an operation is to be undertaken involving the disturbance of soil within 600 millimetres of an existing pipeline, cable or conduit, that the pipeline, cable or conduit is exposed by hand digging or other approved method before mechanical excavating is allowed to begin within that area contrary to section 259(2) of The Occupational Health and Safety Regulations, 1996 and did thereby contravene

section 57(

b) of The Occupational Health and Safety Act, 1993 . Count 2 - on or about the 18 th of April A.D. 2008 at or near Nipawin, Saskatchewan did fail to conduct his undertaking in such a way as to ensure, insofar as is reasonably practicable, that he and workers, employed on or about the same place of employment, who may be affected by the undertaking, are not thereby exposed to risks to their health and safety as is required by

section 5(

a) of The Occupational Health and Safety Act, 1993 and did thereby contravene

section 57(

b) of The Occupational Health and Safety Act, 1993 . [ 4 ] The Crown called nine witnesses, and a number of exhibits were filed. The defence elected not to call evidence. Much of what occurred is not in dispute, although there are areas of conflict that I will address later in this decision. A preliminary issue deals with the wording of count 2. The main issue in this trial is whether or not Mr.

Riemer is guilty of the offences charged. [ 5 ] In order to fully analyse this case, I will deal firstly with the facts pertinent to the charges, review the legislation, deal with the issue respecting the wording of count 2, and then deal with each count separately. I. The Facts A. The Work Site [ 6 ] The downtown grid in Nipawin is set out slightly skewed from true north. For the purpose of this decision, I will ignore that and deal with a north oriented grid. [ 7 ] The main north/south street through Nipawin is 1 st Avenue. Centre Street intersects 1 st Avenue and is also a major artery.

The area germane to this decision deals with the area immediately to the northeast of the intersection of 1 st Avenue and Centre Street. [ 8 ] There is a brick one storey building located at that northeast corner. Immediately north of that building is 102 - 1 st Avenue, and one lot further north of that is 104 - 1 st Avenue. I refer to those two sites as 102 or 104 respectively. [ 9 ] The buildings on each of 102 and 104 had been earmarked for demolition, and the agent of the owner of those lots had sent out for tenders for that demolition.

The work called for “complete removal of the structures on the ... locations including basements with proper fill provided to street level. Demolition is to be completed by April 28, 2008” (Exhibit P-2, Tab 1). [ 10 ] Mr. Riemer responded to that tender and agreed to “demolish buildings and backfill to ground level” (Exhibit P-2, Tab 2).

[ 11 ] An alley runs north and south behind those particular lots, which has somewhat of a T intersection in it close to the north property line of 104. That alley continues to the north, with the intersecting alley heading in an easterly direction. [ 12 ] Returning to the intersection of 1 st Avenue and Centre Street, and proceeding east along Centre Street, immediately beyond that north/south lane which runs behind lots 102 and 104, are a row of businesses.

The one immediately adjacent to the lane was B.J.’s Sausage and Meats, and proceeding eastward from that business were other businesses facing Centre Street. B.J.’s Sausage and Meats was at 211 Centre Street, and was an older one storey building which ran deep into the lot, with a fairly narrow frontage. Along the west side of B.J.’s Sausage and Meats were some windows from which Mr. Jim Rudy was able to observe the demolition work generally. B. The Gas Lines [ 13 ] A six inch main gas line runs down the alley parallel to 1 st Avenue West.

A regulator in the town keeps the pressure in the gas lines at a steady 20 pounds per square inch (psi). Although not precisely in the centre of the alley, the exact location of the line can be located by instruments utilized by SaskEnergy, and the main was approximately two and one half metres below the surface. At various places, service lines, to service individual businesses, are tapped into that main line, and come up to approximately one half metre below the ground, close to a building, at which point a “riser” is attached to that service line.

In this case, the service lines in question had been disconnected. Mr. Michael Van Dorpe, the manager of the insurance company who was acting for the parent company with respect to the demolition, stated he had made arrangements to disconnect the lines on the lot his company owned, which was 104, the old insurance office. Lot 102 had apparently been a restaurant, owned somehow through the then-owner Venice House Restaurant in Nipawin. Exhibit P-2, Tab 14, are two separate documents, one each for lot 102 and lot 104, which are “accelerated work request” forms prepared by SaskEnergy.

Each of those forms are signed by Mr. Van Dorpe, and are virtually identical, but for the address. [ 14 ] The work request is to “retire service”. Mr. Van Dorpe, who is not an expert in this area, made arrangements with SaskEnergy to have the meters removed, not to completely remove the gas lines. Further, he did not ask anyone at SaskEnergy to actually remove the lines. [ 15 ] Mr. Barry Chessall explained the accelerated work request form.

Further, he had testified that, well prior to the start of the demolition on April 14, he had been called to remove the meters from the two buildings that were going to be demolished.

That request came from someone in the clerical staff of his office, and although he does not have specific recollection of what exactly he did, as he does about 100 or so such removals a year, he did state in his evidence that he thought there was nothing out of the ordinary on the removal of those meters. [ 16 ] He stated that the process was that, once the meter had been removed, the riser is capped off, and a steel placard is placed on the exposed riser to warn of a live gas line. He identified the last two pages of P-2, Tab 16, as being what is placed on the line.

The placard is 305 millimetres wide by 85 millimetres deep, and reads: “Caution live gas line”. Exhibit P-1, Tab 4, photo 2, shows a placarded riser behind lot 104, which is how Mr. Chessall left it. [ 17 ] I accept Mr. Chessall’s evidence that, once a line has been capped and a placard placed on it, it is left like that unless and until a customer asks SaskEnergy to do something further. Thus, if a new building is erected after the demolition is completed on the old building, the gas service can be reconnected from that riser. [ 18 ] Mr.

Chessall also testified that retiring a service means to terminate it at the main, that is, the service line from the main to the riser would be completely removed. He defined this as a completely separate step from having the meter removed, and stated that has nothing to do with removal of a meter. Mr. Chessall had actually filled out the accelerated service request, and as part of the standard practice, had then gone to see Mr. Van Dorpe, as that was, to his knowledge, the customer who was requesting the service be retired. [ 19 ] Mr. Chessall was very clear that when he went to meet with Mr.

Van Dorpe at the latter’s office, he explained that the service

could be retired in two ways. The first was to do it in the winter, or basically anytime when there was still frost in the ground, although there was a charge for that. The second option presented would be to do it in the spring, when the frost had left the ground, at which time there would be no charge. He stated that when he met with Mr. Van Dorpe, probably shortly after the date of the accelerated work request of March 22, 2008, he explained that the reason for the charges in the winter was that, due to the frost, the removal of the line was considerably harder to do. He stated that Mr.

Van Dorpe asked him what the normal thing is, and that he replied most people wait until the spring, for the obvious reason that they would then avoid any additional charges. [ 20 ] Mr. Chessall stated that Mr. Van Dorpe told him he would wait until the spring. [ 21 ] I accept Mr. Chessall’s explanation of that as Mr. Van Dorpe was not entirely familiar with the process. Further, Mr. Van Dorpe did meet with Mr. Riemer prior to the start of the work, and in his estimation, possibly a week or so prior to that, which would have been around April 7, 2008. At that time, he and Mr.

Riemer were examining the site generally, and they wanted to make sure the gas lines were marked. Although Mr. Van Dorpe couldn’t recall who it was who first mentioned the gas lines, he did recall that they discussed them, and he did recall seeing the risers. That would, of course, accord with Mr. Chessall’s evidence that he had taken the meters off quite some time before, and had met with Mr. Van Dorpe on March 22 to further discuss the request for retiring the service. [ 22 ] Mr. Van Dorpe testified that he assumed the lines were live, due to what the plate said on the riser.

He referred to there being a “three by ten” plate on the risers, and these plates, or placards, carried the warning that Mr. Chessall had spoken of. [ 23 ] Further on the question of the actual cost of retiring the service, I note that Mr. Stewart Hultin, who is now the Manager of Construction Services South for SaskEnergy, a senior operative in the scheme of things with SaskEnergy, also reviewed the accelerated work request forms at the trial and noted, as did Mr.

Chessall, that in winter, the ground is usually frozen down to the main, the work needs to be done by hand, and in his words, the “task is harder to do in winter”. He stated that SaskEnergy charged in winter in order to reflect the additional work, although they did not charge for that service in the summer. He also testified there is no charge to remove the gas meter. [ 24 ] Based on all of the above, I am fully satisfied that the meters had been removed from the gas lines, and marked as Mr. Chessall said.

The plan was to remove the service line in the spring, which meant, in these circumstances, sometime after the demolition had been completed. C. The Preparatory Work [ 25 ] I accept Mr. Van Dorpe’s evidence that, during the walk around with Mr. Riemer prior to the start of demolition, Mr. Riemer was well aware of the fact of live gas lines being in existence. He certainly saw them when he was with Mr. Van Dorpe doing that walk around. [ 26 ] Further, I accept Mr. Van Dorpe’s evidence respecting discussions he had with Mr. Riemer prior to the work actually commencing. Mr.

Riemer told him during those discussions that the latter did demolitions, and in most jobs the gas line was left in place, and he worked around the gas line. Specifically, Mr. Riemer referred to a job he had recently done on some houses in Whitefox, a small community just outside of Nipawin, in which he had worked around gas lines. As Mr. Van Dorpe put it, he thought working around live gas lines at demolition sites was “common practice”. [ 27 ] There is some dispute as to what markings, if any, were put up other than the placards, and who put those markers up. Mr.

Chessall testified that Joe Hagel, a linesman with SaskPower who was familiar generally with the demolition project, had called him at some point to say that he had noticed one of the risers was partially covered, and hard to see. Mr. Hagel had suggested Mr. Chessall take a look at it, and Mr. Chessall stated that he would. Although Mr. Chessall wasn’t sure of the exact date of this call, he does recall it was on a Saturday, and that he indicated to Mr. Hagel that he would look at it first thing Monday, which seemed fine with Mr. Hagel. [ 28 ] Mr.

Chessall went on to say that on the Monday at approximately 7:45 a.m., he put two yellow stakes with flagging around the riser that was at the rear of lot 102, the second building to be demolished. He testified that was the one that was obscured, and that he basically put both large yellow stakes there (they appear to be about three to four feet high, and are marked with yellow flagging), and he

also pulled some garbage away from the riser that he had marked. [ 29 ] Mr. Van Dorpe had stated that, prior to the demolition starting, there was nothing else marking the risers. He stated that he and Mr. Riemer put up the two stakes by one riser. Mr. Van Dorpe testified these stakes were leaning against the theatre building (this would be lot 106). Mr. Van Dorpe stated that he suggested one stake should be put at each riser, which was subsequently done.

Exhibit P-1, Tab 4, photo 5, shows a stake at each of the risers; in that photo, demolition appears to be completed on lot 104. [ 30 ] Due to the uncertainty respecting the time these various stakes went up, I cannot conclude who may have moved the stakes, and if so, when. It is entirely conceivable that Mr. Chessall, as he says, put those two stakes up by one riser, and that the stakes were subsequently moved around by persons unknown as part of the general prepatory work going on. I have no reason to doubt either Mr. Van Dorpe or Mr.

Chessall with respect to these stakes, and I somewhat assume that is what happened. However, whereas the stakes may better mark the risers, that doesn’t change the basic fact that there were live gas lines in the area in which the demolition was being undertaken, and that Mr. Riemer knew that. [ 31 ] The only other prepatory work that needed to be undertaken on these two lots was to remove an overhead power line, although that was a minor task that was done in advance and is not otherwise relevant to these proceedings. D. The Demolition Work [ 32 ] The demolition started Monday, April 14, 2008. Mr.

Riemer was using a link-BLT track backhoe with a thumb attachment on the bucket, that attachment being helpful in tearing down the buildings. [ 33 ] Mr. Riemer was being assisted by Mr. Jack Boxall, who owned two separate trucks used to haul the debris away. Jack Boxall’s drivers were his son, Mr. Brent Boxall, and Mr. Michael Lungul. Although in the statement he provided (Exhibit P-12) Mr. Riemer states that he was contacted by Mr. Boxall, who urged him to bid the contract on his own, suggesting more of a partnership or joint venture was going on, I am satisfied based on the evidence of Mr.

Van Dorpe, and the tender document itself, that Mr. Riemer was in charge of the operation. He may well have submitted the bid after consulting with Mr. Boxall as to the availability of his business to assist in hauling away and providing backfill, but Mr. Riemer was the general contractor on this job. The definition of “contractor” contained in s. 2(1)(

d) of the Act includes a person who directs the activities of one or more employees or self-employed persons involved in the work at the place of employment, a role clearly fulfilled by Mr. Riemer. [ 34 ] It appears that lot 104 was demolished first, based on these photos and the supporting evidence. The general plan of attack was that Mr. Riemer would operate the backhoe, and knock down the building, scooping the debris into one of the trucks.

That truck would then haul the debris to the dump, and return with a load of fill which would then be dumped at some open area on the demolition site, the fill to be used to backfill the excavation to bring it to grade. The trucks were essentially cycling throughout the day, and according to Mr. Lungul, they would each do approximately six round trips per working day, working between 9:00 a.m. and 5:00 p.m. One of the trucks held 18 yards, and the other might have held up to 20 yards. In any event, a lot of material was being moved in and out, and by all accounts, Mr.

Riemer was a very experienced operator who was bringing down the buildings quite quickly. [ 35 ] Mr. Lungul also testified that the risers were staked out prior to the start of the job. On Exhibit P-1, Tab 3, photo 3, he identified a riser marked out with one of the wooden stakes referred to earlier, as being in place at the start of the job. That particular riser would have been at the back of 104. [ 36 ] On Exhibit P-1, Tab 3, photo 5, he identified a second riser marked with a yellow SaskEnergy stake, as referred to earlier, which would have been at the back of lot 102.

In the photo, a good part of that building has been knocked down. This is the riser that he testified would have been closest to B.J.’s Sausage and Meats. [ 37 ] It appears that the work was progressing quite quickly at the beginning of the job. Mr. Lungul stated that he and Jack Boxall, the other driver, toured the site before they started to work, and although he does not recall specific discussions respecting the stakes, he knew from his experience to avoid the risers.

[ 38 ] When asked if a spotter was used to dump the fill, he said he was pretty sure that occurred 90 percent of the time, but he did agree that there may have been no one directing the dumping the other 10 percent of the time. [ 39 ] I have no doubt Mr. Lungul, who had worked with the Boxalls for a number of years, was well familiar with operating trucks around construction/demolition sites. He was well aware of the need to avoid the risers, and although there were no particular discussions respecting those risers, he testified that everyone knew of them, and the plan was to work around them.

That certainly seems to be borne out by the way the work was conducted in the early stages. It is what occurred on April 18 that is in issue. E. The Explosion [ 40 ] According to the statements of Mr. Riemer, on the morning of Friday, April 18, all the debris had been taken away and there were two more loads of fill to bring in to spread out and level the lots, that is, bring them back to grade.

When he moved from the front of the lot, where he had been working, to the back of the lot to move the dirt for that purpose, he noticed that one of the loads had been “dumped on or dumped too close to the gas line stub and the gas line stub wasn’t visible”. This riser would have been the one behind lot 102, the one basically across the back lane from the butcher shop. [ 41 ] There is some dispute as to how much sand there was, and/or how it got there. Mr. Lungul, when asked if he had covered that riser with a load of fill that morning, stated he did not believe a riser was covered.

He thought he had dumped his last load between 9:00 and 10:00 a.m. that morning, and had left the site to take his truck to the shop. Mr. Van Dorpe stated that a pile of sand was on that particular riser on the day of the explosion. Mr. James Rudy, who was in the butcher shop, stated that he did not see any debris or backfill on the site, prior to the explosion, stating it was “pretty flat all around”. [ 42 ] I am satisfied that a load of sand was in fact dumped on or near the riser; had that not been the case, there would have been no reason for Mr. Riemer to take steps to expose the riser.

And that is precisely what he did. Knowing the riser was there, wanting to keep it exposed so he could avoid it, he first, according to his statement, took a shovel and tried to determine the exact location of where that riser might be. That was unsuccessful. He goes on to state: I then utilized the backhoe to start removing the dirt from that area and spreading it out on the lots. About the second bucket that I took I caught the stub line [riser] above the ground level and I noticed that it remained on the bucket when I pulled the bucket of the backhoe towards me.

There was about three feet of gas line on the bucket. I did not dig below ground level. The bucket caught the stub above ground. This would of [ sic ] occurred about 10:15 a.m. in the morning. [ 43 ] Immediately recognizing the potential for a problem of some nature, Mr. Riemer stopped his equipment, and went to the area in front of his backhoe close to where the riser had been snagged. His statement is that he couldn’t see anything, but he could smell gas. He therefore called Joe Hagel, the SaskPower linesman, to try and get a number for SaskEnergy, and eventually was able to contact SaskEnergy. Mr.

Willy Duncan, with SaskEnergy, arrived on the scene at around 10:30 a.m. [ 44 ] As in some of the other areas of evidence, there is some dispute as to who precisely said what, or what occurred. Leaving aside those conflicts for the moment, I am satisfied the time line relayed by Mr. Duncan is fairly accurate, and using that guideline, I conclude the following occurred. [ 45 ] Upon arrival at the site, Mr. Duncan immediately put on his flame-retardant coveralls, and got out of his truck to investigate. At the time of his arrival, Mr. Riemer and Mr.

Van Dorpe were at the site, as were maybe five or six other individuals who he didn’t know. He stated that, as he pulled into the site, he could see the riser lying on top of a pile of dirt, and approximately 10 to 15 feet of pipe was exposed. This pipe would have been the service line connected to that riser. Mr. Duncan’s evidence confirms what Mr. Riemer said happened, as he could see from looking at the riser area that the line had been snagged just below the point where the line connected with the riser. He had been guided to that location by Mr. Riemer and Mr. Van Dorpe. [ 46 ] At 10:33 a.m., Mr.

Duncan’s “first call” was in order to get locations for any SaskTel lines that might be in the area. He

testified he did this as he needed to locate the lines as Mr. Duncan knew that there would have to be some digging done to effect repairs. He had spoken to Mr. Hagel and knew there were no SaskPower lines in the area. He testified that he advised the recipient of that call that it was an emergency, as a gas line had been hit, and that he needed the location of other lines as soon as possible. [ 47 ] He then got his line locator out of his service truck. A line locator works by putting a transmitter on an exposed portion of the pipe, which sends a signal down the pipe.

The receiver portion of the line locator picks up that line by the signal, allowing one to track, on the ground, the location of the line under the ground. As he was getting a poor signal from that pipe, he concluded there was a break in the line. He therefore unhooked the apparatus, and went to the service line at the butcher shop to locate that line. [ 48 ] Mr. Duncan testified that just as he was starting to locate that service, Mr. Jim Rudy came out of his butcher shop, saying he could smell gas. This would have been about 10:37 or 10:38 a.m.

Based on where the gas was venting out of the ground, and the direction of the wind, which was blowing towards that shop, Mr. Duncan assumed that the smell of gas was being blown towards the butcher shop, and told Mr. Rudy that. He then told Mr. Rudy to go into the butcher shop and turn off any pilot lights, in order to shut down any potential sources of ignition. Mr. Rudy went back into his building at approximately 10:42. This was a precautionary measure by Mr. Duncan, as he was still doing the assessment.

By this time, he had found the service line to the butcher shop, he had found the main line on which that service line ran off, and he was trying to find the service lines in the vacant lot as part of his assessment of the overall situation. As he put it, a number of times, he did not have a firm idea of what he was dealing with. His problem was that, whereas he could see a line had been pulled, he could not see a distinct break.

Thus, although there was gas he could see and smell coming up from the ground, he did not know if he was dealing with a break at a weld, whether the service had been pulled away from the main line, whether the main line had been broken, or exactly what he was dealing with. [ 49 ] By this time, there were people approaching on the sidewalk, presumably having their attention drawn to the site by the activity. As well, there was pedestrian and vehicular traffic in the alley. Mr.

Duncan was telling people to stay back, as there was gas present, and although there was some initial compliance, people were not exactly following his directions to the letter, and were continuing to mill around in the area generally. [ 50 ] At approximately 10:46 a.m., he called Barry Chessall for assistance, and asked him to bring the “as-builts” for the lots and the butcher shop.

An “as-built” is, as it sounds, a diagram of what was actually placed as a service, made at the time the installation is done, based on the plans for where that service was to be located, as well as measurements taken to exactly tie in the line. It is actually a better guide in being able to ascertain where the underground line is. Mr. Duncan was requesting this because he did not know how long the line was that had been hit, and was still trying to assess the situation.

He testified that there was a hole in the ground in the vacant lot, estimating that to be approximately 15 or 20 feet from the broken riser, although that didn’t tell him that that was necessarily the location of the break, as he could not see a break. Mr. Chessall stated that he would bring those plans as soon as he could get there. [ 51 ] At approximately 10:48, Mr. Rudy came out again from the butcher shop, saying that the smell in the butcher shop was much stronger. At that point, Mr. Duncan told Mr. Rudy to get everyone out of that building, and close it. [ 52 ] Mr.

Duncan’s next call was to SaskEnergy’s Gas Construction Division, as he knew they would have to do a line repair, and that unit would have to come out from Saskatoon. That call was placed at 10:52 a.m. Bystanders were still in the area, and people were coming up the lane, and Mr. Duncan was trying to keep people back. He then painted the location of the lines, with yellow paint, on the ground surface. [ 53 ] At 10:56 a.m., Mr. Duncan called the Town of Nipawin to arrange for barricades, as he wanted to keep people back. [ 54 ] The explosion occurred at 10:57; Mr.

Duncan had been on site for 27 minutes before that explosion. Mr. Riemer’s statement does not give a lot of detail as to precisely what happened between the time he snagged the line and the explosion, although he does confirm the general work that was being done by Mr. Duncan. His statement does state that he had, immediately upon Mr. Duncan’s arrival, requested that he shut the main gas supply off, to which Mr. Duncan replied that it would shut down too many places, and that they would be lighting pilot lights until midnight. Mr.

Duncan, when asked in cross-examination as to what he could recall of his conversation with Mr. Riemer, stated that he couldn’t recall. He specifically stated he couldn’t recall telling Mr. Riemer that he had probably pulled the line out of the main, or hearing Mr. Riemer express any concerns about getting the gas shut down, and he specifically denied making the statement that he didn’t want to shut down the main line or they would be lighting pilot lights all night.

Clearly, Mr. Duncan came upon an unknown situation. He was taking all necessary steps to ascertain precisely what he was dealing with, so that he could deal with it. If correcting the problem meant lighting pilot lights all night, I have no doubt that Mr. Duncan would have done that. But I do not accept that he would throw out a remark of that nature upon arrival at the scene; he was a professional doing his best to identify and remedy that problem in the time available to him, and I do not believe he would have made such a comment. [ 55 ] Mr.

Van Dorpe, being interested in the progress of the work as he was the one who had initiated it, had stopped in to see how things were going shortly after 10:00. He could see, upon his arrival, that there was sand around the riser, and that the riser was sticking out above that sand, with some gas line actually exposed. He was also trying to contact SaskEnergy, and he was aware Mr. Riemer had tried to do so as well. Mr. Van Dorpe stated that he then went with Mr. Riemer and noted there was a lot of gas coming out of the line, at a break approximately six inches below the shut off valve at the riser. Mr.

Riemer taped that up. Mr. Van Dorpe also testified that, when Mr. Duncan arrived, he and Mr. Riemer showed Mr. Duncan what they had discovered, and that Mr. Duncan stated that it looked like the line had been pulled out of the main. [ 56 ] Further, Mr. Van Dorpe also stated that Mr. Rudy had come out of his shop, and explained about the smell, and he heard Mr. Duncan tell him it was probably the smell being blown through the stucco walls. As Mr. Van Dorpe put it, Mr. Duncan was “not pleased”, giving the appearance that he didn’t really want to be there. I do not accept Mr.

Van Dorpe’s characterization as being particularly accurate. I could understand, in these circumstances, that Mr. Duncan might appear to be preoccupied, and not in the mood to discuss things at length with others, but that would be attributable to him trying to assess the situation. [ 57 ] Mr. Hagel confirmed that he received a call from Mr. Riemer just after 10:00 a.m., wanting to know how to get in touch with SaskEnergy. Mr. Hagel advised Mr. Riemer to call 911 to obtain that number. When he arrived, he could smell gas, and he went to see Mr.

Van Dorpe and told him to keep people away, prior to going to SaskEnergy to get some further assistance. Mr. Hagel saw Mr. Duncan at the site at approximately 10:30, and confirmed with him that there were no underground SaskPower lines in the area. He offered to help Mr. Duncan if he needed it, an offer that was rejected by Mr. Duncan. However, Mr. Hagel does confirm that, at the time he arrived on the scene and met with Mr. Duncan, Mr. Duncan was dealing with the gas venting into the air, and a number of people who were present. In discussions with Mr. Duncan, Mr. Hagel formed the impression that Mr.

Duncan’s plan was to expose the line so they could fix it. Mr. Hagel was not actually on the site at the time of the explosion. [ 58 ] Mr. Lungul had stated that he probably got back to the site at approximately 10:45 a.m., although I accept that as being an estimate. When he got there, he could smell a gas leak, he could see the pipe was out of the ground, and he saw that Mr. Duncan was present. He did not note anything around the riser, although he did note the riser was out of the ground. Although not formally trained in gas lines and hazards of such, Mr.

Lungul was an experienced man who knew that there was a risk that, if there was gas, an explosion could follow. He said he asked Mr. Duncan twice if this would explode, twice getting the response that it would not, and that he asked Mr. Duncan if he could have the shovel to look for the shut off valve, or the leak. He stated Mr. Duncan then went over towards the Credit Union to look for a shut off valve. [ 59 ] Mr. Lungul’s evidence was somewhat difficult to follow. I’m satisfied he had a specific agenda, and was clearly not satisfied, in hindsight, with the work done by Mr. Duncan.

For those reasons, I somewhat tend to discount his evidence. In particular, he acknowledged giving different evidence in a statement he gave to the occupational health investigators on May 2, 2008, and despite reading that over to refresh his memory, denied at the trial that Mr. Duncan had shut off any valves, despite the fact that he had said that in his statement. When asked the reasons for the difference in his recollection and his evidence, he stated that if the line was shut off, there would have been no explosion. I did not find Mr.

Lungul to be particularly helpful or impartial. [ 60 ] James Rudy was the other individual who was present at the scene that day, and he testified that he had seen Mr. Duncan, he thought, with a pointed shovel, in a shaded area by a back pole near the lane, presumably for the purpose of digging up a valve. F. The Aftermath [ 61 ] The force of the explosion completely demolished the butcher shop. The fire investigation report (Exhibit P-14) notes that “bystanders offered information concerning finding packaged meat products from B.J.’s Meats as much as four blocks distant from the site of the explosion”.

The fire that followed the explosion completely destroyed the two adjacent buildings, and buildings within a two block area of the blast “suffered glass damage to windows and shrapnel damage to sections facing the site of the explosion”.

[ 62 ] Mr. Jack Boxall, who was standing near the front of the building of B.J.’s Meats, and Brent Boxall, who was in roughly the same area, both died as a result of injuries suffered in the explosion. [ 63 ] Lorry Riemer and William Duncan were in the lane area and both suffered injuries, as did Mr. Lungul and Mr. Rudy. A fifth individual, Barry Kozun, was also injured, although he did not testify at the trial. [ 64 ] Mr.

Lungul stated that five of his vertebrae were cracked, and he suffered two broken ribs, noting that he was hurt internally and he spent a total of five weeks in hospitals in Nipawin, Regina and Saskatoon. He stated that, at the time of trial in November of 2011, he was still very inactive, as opposed to his fairly active lifestyle prior to the explosion. [ 65 ] James Rudy testified that he had been out of the building for mere seconds before it exploded. He recalls hearing a whooshing noise, and being thrown a distance, with debris falling on him.

He said his glasses were gone, he was dizzy, that he couldn’t get up, and that Mr. Riemer and Mr. Van Dorpe helped him move behind an adjacent building. He testified he had a lacerated spleen and liver, needed four stitches to his head, and now suffers from post-traumatic stress disorder. He also testified that he now has problems with his shoulders, which he attributes to the blast, and that he spent one day in the hospital in Prince Albert before being released, although he went back in almost immediately thereafter as problems with his spleen continued.

He testified he was very weak for a period of approximately three months and, as did Mr. Lungul, testified that the effects of the blast have really slowed him down generally. [ 66 ] Fire and emergency crews were on the site for most of the day, and it took a couple of days to fully restore gas service to the approximately 600 customers affected. As Mr. Hultin put it, the blast “took out the downtown core”. [ 67 ] In his later examination, Mr. J.D.

Lloyd, the official from the Office of the Fire Commissioner (as it was then known) who completed the fire investigation report, concluded that the likely source of ignition was the relays on the compressor units located in the basement of the butcher shop. He was qualified as an expert to give opinion evidence with respect to fire and explosion origin, and the cause and circumstance determination of same. He first arrived on the scene at 3:15 p.m. on April 18, at which point the Nipawin Fire Department, with assistance from the Carrot River Fire Department, was putting out hot spots in the smouldering ruins.

The cause of the natural gas leak was determined to be that the service line had been pulled out of the main line. In his report, Mr. Lloyd made the following comments: ... Lloyd directed the SaskEnergy crew at the scene to dig out the gas main beneath the lane in the area where the damaged natural gas service line intersected the main. About 50 cm. below the surface of the lane a frost layer was found. Below this layer the sandy soil typical of the area was found to be un-compacted and easy to dig through with hand shovels.

When the connection fitting for the service line was exposed the fitting was found intact and undamaged. The service line had been pulled out of the fitting. A very strong smell of the odourant used to tag natural gas was evident as the soil around the main was removed. The sandy soil in the area of the leak was markedly desiccated. A hole was found in the soil immediately adjacent to the fitting on the main. A probe of the hole showed it ran in the direction of the damaged service line. The hole was dug out and the end of the service line which was originally seated at the connection fitting was undamaged.

The end of the line was about three m. away from the fitting. The soil along the path of the service line from the fitting on the main and the location where the line came to the surface smelled strongly of natural gas odourant. The soil was also dried out. [ 68 ] The evidence of the SaskEnergy employees who testified was that the pressure in the main line was kept constant at 20 psi. The evidence is clear that, if that pressure drops for some reason, the regulator will continue to pump gas to the system in order to restore the desired pressure in the line.

A drop in pressure would be the obvious result of a service line being ripped from the main line; however, as far as the mechanics of the regulator works, that would not affect the gas flow. It would simply continue as if there had been increased usage on one of those lines. [ 69 ] The end result was that, for a period of approximately 45 minutes from the time that the service line was pulled out of the main line, gas was migrating through the sandy soil, under the frozen surface of the ground, although some gas did find its way to the surface; this would have been the area that Mr. Duncan had referred to.

As the gas continued to seep, it was able to creep into the cindercrete block basement of the butcher shop. Mr. Lloyd’s evidence was that Mr. Rudy, the owner of the shop, had reported to him

that water seeped in in the spring, due to cracks in the basement wall. As Mr. Lloyd testified, if water could creep in, it would be asimple matter for gas to creep in. The fact of the pooling of the gas is confirmed by Mr. Rudy’s observation when he went into thebasement to turn off the pilot lights, as he indicated the gas smell was extremely strong. [70] The evidence of Mr. Chessall was that once natural gas comprises a low of four percent, to a high of 14 percent, of theatmosphere, it is in the explosive range.

Whereas it will never be known precisely what the source of the ignition was in the basement,due to the extent of the blast, it is clear that some electrical device, such as a compressor turning on, ignited the gas and led to thedevastation that followed. [71] As stated at the outset, the overall circumstances are fairly clear, if not all of the particulars of who said what, and when, andto whom. No doubt some of the discrepancies are due to the passage of time, and the fact that, until the explosion occurred, this waslargely an uneventful day, at least until the line was broken.

As well, some of the evidence was tainted by that particular witness’ viewas to who was at fault for the explosion. What is undisputed is that Mr. Riemer was operating a backhoe in the area of the riser, and hesnagged it with that backhoe, pulling the service line away from the main line. He clearly knew that the riser was in the area as he wasusing the backhoe to expose it. II. The Applicable Legislation A. The Occupational Health and Safety Act, 1993 [72] This is a statute designed primarily to protect “the health, safety, and welfare at work of all of the employer’s workers” (see s.3(

a) of the Act). Crown counsel suggests in his brief, and I agree, that the Act is essentially a “public welfare statute designed to promotethe public health and safety of the province’s workers and is intended to guarantee a minimum level of protection to these workers”. Thedefinition of “occupational health and safety” contained in s. 2(1)(

p) of the Act includes among others “the promotion and maintenanceof the highest degrees of physical, mental and social well-being of workers (

i) and the protection of workers in their employment fromfactors adverse to their health”. (See also Claude Resources Inc. v. Thompson, 2005 SKQB 403 , 271 Sask. R. 49, para. 23.) [73] A number of cases from this Court have dealt with the purpose of the Act. R. v. Task Construction Management, an oraldecision of Judge Koskie dated April 20, 2007, noted that the “scheme of the Act is to protect the worker” (page 9, line 18), holding aswell that obligations imposed under the Act are joint and several, that is, those obligations can overlap. This same principle ofoverlapping responsibility is explored by Mr.

Justice Hrabinsky in R. v. Jastek Master Builder 2004 Inc., 2006 SKQB 223 , 278Sask. R. 312, at paragraphs 14 and 15. [74] In determining the “role of regulations affecting the workplace ... in relation to criminal law” in R. v. Westfair Foods Ltd.,2005 SKPC 26 , [2005] 10 W.W.R. 752, 263 Sask. R. 162, Judge Whelan noted at paragraph 20, citing the case of R. v. City ofSault Ste.

Marie, (SCC), [1978] 2 S.C.R. 1299: The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees, consumers andmotorists, to name but a few) from the potentially adverse effects of otherwise lawful activity. Regulatory legislation involves a shift ofemphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection ofpublic and societal interests.

While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct,regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conductand care. [75] In another case dealing with the Act, R. v. Realistic Roofing Inc., 2007 SKPC 23 , 296 Sask. R. 46, Judge Matsallaheld at paragraph 15: The Act falls into a category of statutes that create what is known as “public welfare offences”. The legislation sets minimum standardsof working conditions in the province.

If workers are expected to toil in unsafe conditions that could cause death or serious bodily harm,a substantial fine can be imposed - not to threaten the commercial viability of the business but rather as a penalty that serves as a reminder

that a deviation from the minimal standards will not be tolerated, see R. v. Pederson, 2000 SKQB 255 , (2000), 194 Sask. R.102, (Q.B.) Krueger J., para. 9. [76] There is no doubt that these charges are “strict liability offences”. Thus, the onus is upon the Crown to establish the actusreus, the doing of the prohibited act, beyond a reasonable doubt. If that is done, Mr.

Riemer can escape conviction if he can establish ona balance of probabilities that he took all reasonable steps to prevent the occurrence of the prohibited act, referred to as the defence ofdue diligence. [77] In interpreting the Act, and in keeping with “the general remedial theme of regulatory legislation of this nature...the legislationmust be broadly interpreted to ensure a minimal level of protection for all workers”, as stated by Judge Harradence at paragraph 33 of R.v. 101009484 Saskatchewan Ltd. (Robwel Constructors Limited Partnership), 2011 SKPC 31 , relying on R. v.

TaskConstruction Management, supra. [78]

Section 44 of the Act contains the power to make regulations, which are set out in The Occupational Health and SafetyRegulations, 1996 (the Regulations). B. The Regulations [79] The Regulations are divided into a number of different parts. Generally speaking, each part deals with a separate type ofoperation. For example, s. 259(2) referred to in count 1 falls under

Part XVII, dealing with excavations, trenches, tunnels and excavatedshafts. Many of these parts start out by first interpreting certain words, for the purpose of that part, although there is a generalinterpretation

section that deals with commonly referred to terms. III. Argument and Analysis A. The wording of count 2 [80] Written arguments were filed some time after the conclusion of the evidence. In his written submissions, defence counselraised for the first time that this count is expressed to be contrary to

section 57(

b) of the Act, which makes it an offence to contravene aRegulation (section 57(

a) of the Act makes it an offence to contravene, among others, s. 5 of the Act). The result of the reference to s.57(

b) instead of s. 57(

a) is purported to be as follows, as set out in that brief: My understanding from the outset was that the Crown was basing their whole case on a breach of section 259(2) of The OccupationalHealth and Safety Regulations in that the accused mechanically excavated too close to a pipeline. However, he was not excavating andthere is no regulation that provides “fail to conduct his undertaking” as expressed in

section 5(

a) of the Act. Therefore the charge as itstands is a complete nullity as it does not disclose an offence known to law and is prejudicial and misleading in the conduct of thedefence. Had the offence been expressed as being contrary to

section 57(

a) of The Occupational Health and Safety Act, it would be a good andsufficient count. [81] The Crown responds to this by arguing that the charge is almost identical to the wording of

section 5(

a) of the Act and thatwhen one reads the charge there can be no doubt what the substance of the charge is. The Crown argues that the reference to s. 57(

b) ofthe Act should clearly be to 57(

a) of the Act, and that this typographical error should not result in the count being declared a nullity. [82] I have somewhat paraphrased the arguments of both the Crown and defence for the sake of brevity, and in order to lay out theessential dispute. The issues are whether or not the defence should be allowed to bring an application to quash count 2 at this stage, andwhether or not count 2 should be amended to reflect the proper subsection.

[83] The Crown has filed an extract from John L. Gibson, Criminal Law Evidence, Practice and Procedure, (Toronto: Carswell,1988), ch 3(

B) at 2 (WL Can), dealing with this area, which is instructive: If defence counsel makes a motion to quash the information for a defect apparent on its face, such motion must be made prior to plea,and can be made later only with leave of the court, s. 601(1). Such a motion will succeed only if the court rules the information to benull and void for some reason. If the motion to quash fails, Crown counsel will make an application to amend to correct the problem. Ifthe motion is successful the judge may still grant the accused an adjournment if the judge feels the accused would be prejudiced in anyway by proceeding forthwith. [84]

Section 601 of the Criminal Code deals with amendments, s. 601(1) specifically stating:

(1) An objection to an indictment or a count in an indictment for a defect apparent on the face thereof shall be taken by motion to quashthe indictment or count before the accused has pleaded, and thereafter only by leave of the court before which the proceedings takeplace, and the court before which the proceedings is taken under this

section may, if it considers it necessary, order the indictment orcount to be amended to cure the defect. [85] Subsections (3) and (4) of that

section state:

(3) Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or a count therein as may be necessarywhere it appears (

a) that the indictment has been preferred under a particular Act of Parliament instead of another Act of Parliament; (

b) that the indictment or a count thereof (

i) fails to state or states defectively anything that is requisite to constitute the offence, (ii) does not negative an exception that should be negatived, (iii) is in any way defective in substance, and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial;or (

c) that the indictment or a count thereof is in any way defective in form.

(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider (

a) the matters disclosed by the evidence taken on the preliminary inquiry; (

b) the evidence taken on the trial, if any; (

c) the circumstances of the case; (

d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or(3); and (

e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done. [86]

Section 601 is found in

Part XX of the Criminal Code.

Section 795 of the Criminal Code, dealing with

summary convictionsunder

Part XXVII, makes

Part XX, among others, applicable to

summary conviction proceedings.

Section 4 of The

Summary OffencesProcedure Act, 1990 incorporates the

summary conviction proceedings of the Criminal Code to provincial charges, read in conjunctionwith The

Interpretation Act, 1995. Thus, s. 601 is the controlling statutory authority for these issues. [87] In R. v. Moore, (SCC), [1988] 1 S.C.R. 1097, [1988] 5 W.W.R. 1, 65 C.R. (3d) 1, the Supreme Court,although dealing with the issue of autrefois acquit, had reason to review the court power to amend an information, under the then s. 529

of the Criminal Code. Lamer J., writing for the majority, noted at paragraphs 58 and 59: Since the enactment of our Code in 1892 there has been, through case law and punctual amendments to s. 529 and its predecessorsections, a gradual shift from requiring judges to quash to requiring them to amend in the stead; in fact, there remains little discretion toquash. ....

My understanding of s. 529, when read in its entirety, is that it commands the following to the trial judge: absent absolute nullity andcertain limits set out in subs. (9), the judge has very wide powers to cure any defects in a charge by amending it; if the mischief to becured by amendment has misled the defence, the judge must then determine whether the misleading or prejudice may by removed by anadjournment. If so, he must amend, adjourn, and thereafter proceed. But, if the required amendment cannot be made without injusticebeing done, then and only then the judge is to quash.

Therefore, a judge must not quash a charge, and it is reversible error of law if hedoes, unless he has come to that conclusion, namely that “the proposed amendment” cannot “be made without injustice being done”. [88] In R. v. Crouch, (SKQB), 127 Sask. R. 389, Mr. Justice Laing of the Court of Queen’s Bench, citing aswell a portion of the quote referred to immediately above, reviewed an unreported decision of Mr. Justice Gerein at page 2 CanLII, inwhich Mr.

Justice Gerein had held that “...in determining whether there has been compliance [with s. 581(3) of the Criminal Code,dealing with details required in a count] a court is to adopt a flexible approach as opposed to a technical one with a central considerationbeing whether the accused has been ‘reasonably informed’ of the transaction alleged against him”. [89] Has the defendant been reasonably informed of the transaction alleged against him? In my view, he has. The wording incount 2 is lifted virtually verbatim from

section 5(

a) of the Act, and refers to that section. The fact that the Crown relies on the same setof circumstances to seek to establish two separate violations, as set out in count 1 and count 2, is not unusual; as a common example, thevast majority of “drinking and driving” informations charge what is colloquially known as impaired driving and “over .08” as twoseparate counts. [90] Further, as pointed out by Crown counsel, whether or not the Crown is attempting to establish the violation of

an Act, or aRegulation, “the case has to be proven by the Crown, and countered by the defence, in exactly the same manner”. [91] Additionally, it is of note that defence counsel himself acknowledges, in his written argument, that had the charge been laidunder s. 57(a), the charge would be “a good and sufficient count”. [92] I am not able to conclude, in any event, that the defence was misled or prejudiced in any way by the erroneous reference to s.57(

b) of the Act. The Crown case would have been conducted in the same fashion, had this been raised earlier, and if there was anyconfusion on the part of the defence as to what the Crown was alleging, it could have been raised well before this late date. [93] None of the above observations deal with the question of whether or not the application to quash should be dealt with at thisstage, after all the evidence is in, with the matter first being raised at the argument stage.

In my view, the matter should have been raisedat the outset of the trial, which would obviously have prompted, at that time, an application to amend from the Crown. As there has beenan exchange of legal argument on this issue, and as defence counsel ultimately made an application to quash during the argument phase, Iwill grant leave to the defence to make the application to quash, but I dismiss that application. I allow the Crown’s application to amendcount 2 to refer to

section 57(

a) of the Act, deleting the reference to

section 57(b). B. Count 1 [94] Section 259(2) of the Regulations states: 259(2) Where an operation is to be undertaken involving the disturbance of soil within 600 millimetres of an existing pipeline, cable orconduit, an employer or contractor shall ensure that the pipeline, cable or conduit is exposed by hand digging or other approved methodbefore mechanical excavating is allowed to begin within that area.

[ 95 ]

Section 57(

b) of The Occupational Health and Safety Act, 1993 reads: 57 Every person who: (

b) contravenes a regulation is guilty of an offence. [ 96 ]

Section 58 of the Act sets out various penalties. For a violation of s. 259 of the Regulations the penalty is dependent, to a certain extent, on the consequences. I need not review those provisions at this stage, and may not need to at all, as this is not a sentencing decision. (

i) Crown Position [ 97 ] The Crown argues that there is no evidence that Mr. Riemer exposed the gas riser by hand digging prior to starting to level out the sand with his machine. The argument is that the most that Mr. Riemer may have done was to take a few shovels full of dirt, in an attempt to find the riser. However, that obviously proved unsuccessful. [ 98 ] Anticipating the defence argument that no “excavation” took place, as there was no digging below ground, the Crown notes that the case of R. v. Grant Forest Products Inc. , [2002] O.J. No. 3374 (Ont.

Court of Justice) , has determined that the purpose of the legislation is to “protect and promote the health and safety of vulnerable workers that are at the mercy of working conditions created by their employers”. As such, the Crown argues that the

interpretation suggested by the defence is inappropriate. (ii) Defence Position [ 99 ] Mr. Carson’s argument on count 1 is precisely that there has been no “excavation”, that clause being defined in the Regulations as meaning “any dug out area of ground other than a trench, tunnel, or excavated shaft”. The argument is that Mr. Riemer was not excavating at the time the bucket caught the riser, as the riser was caught several inches above the ground while Mr. Riemer was “sloughing off” the top of the load of fill that had been dumped on the riser. [ 100 ] Mr. Carson takes the position that the rules of statutory

interpretation require that a Court, in interpreting a penal statute, must use

interpretation most favourable to the defendant. He relies on the decision of Churko v. The Law Society of Saskatchewan , 2011 SKQB 327 , for that proposition, as well as the general rules of statutory

interpretation. (iii) Analysis [ 101 ] On the facts, the evidence is clear that someone dumped a load of soil on top of the marked riser connected to the gas line, and that Mr. Riemer first took a shovel and used that shovel to try, in his words, “to determine the exact location of where the stub might be coming out of the ground”. That attempt being unsuccessful, he acknowledges that he then “utilized the backhoe to start removing the dirt from that area and spreading it out on the lot.

About the second bucket that I took, I caught the stub line above the ground level and I noticed that it remained on the bucket when I pulled the bucket of the backhoe towards me”. [ 102 ] The nub of Mr. Carson’s argument is contained in the following excerpt of Mr. Riemer’s statement of April 23, 2008, as follows: I did not dig below ground level. The bucket caught the stub above ground.

[103] The evidence is that, at the time the gas riser was caught, which led to the line being pulled out of the main, Mr. Riemer maynot have been “excavating” in the sense that he was not digging below ground. The definition in the Regulations calls for conducting anexcavation of “any dug out area of ground other than a trench, tunnel or excavated shaft”.

That is, for his argument to be successful, Iwould have to interpret the word “excavate” in its narrowest possible way to require that to mean only a digging and removal of soilbelow ground level. [104] In my view, such a restrictive meaning to the word “excavate” is not appropriate for a number of reasons. [105] First, as is made clear in the Churko case, as well as the other cases cited that deal with prosecutions under the Act, the Act is tobe given a wide and liberal

interpretation in order to attain the objectives of the Act. [106] Second, the rules of statutory

interpretation are clear, and are reviewed in detail in the Churko case. Quoting from paragraph15, Mr. Justice Ball noted: The proper approach to statutory

interpretation was canvassed by the Supreme Court in Rizzo & Rizzo Shoes Ltd., Re, (SCC), [1998] 1 S.C.R. 27 at para. 21: [21] Although much has been written about the

interpretation of legislation (see, e.g., Ruth Sullivan, Statutory

Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The

Interpretation of Legislation in Canada (2nd ed. 1991), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates theapproach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislationalone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [107] Third, Churko refers to the statutory rules set out in s. 10 of The

Interpretation Act, 1995 as follows: Every enactment shall be interpreted as being remedial and shall be given the fair, large and liberal construction and

interpretation thatbest ensure the attainment of its objects. [108] Fourth, the count itself, as does s. 259(2), refers to “an operation ... involving the disturbance of soil within 600 millimetres ofan existing pipeline, cable or conduit ...”. Clearly, what Mr. Riemer was doing was working with “a disturbance of soil”. [109] Fifth, the definition of “excavation” in the Regulations refers to “any dug out area of ground other than a trench, tunnel orexcavated shaft”. It doesn’t say in that definition that the excavation must be below ground, other than to refer to “any dug out area ofground”.

The dug out area of ground in question here falls within that definition, in my view. [110] Sixth, the definition of excavate in the The Concise Oxford Dictionary, 10th ed., reads as follows: Excavate (1) make (a hole or channel) by digging. Extract (material) from the ground by digging. (2) carefully remove earth from (anarea) in order to find buried remains. The Crown relies on the definition of “excavate” set out in the Merriam-Webster Dictionary, online: Merriam-Webster m-w.com<http://www.merriam-webster.com/>:

1. To form a cavity or hole in 2. To form by hollowing out 3. To dig out and remove 4. To expose to view by or as if by digging away a covering These

definitions of “excavate” would include the actions taken by Mr. Riemer as well. [111] Both by the definition of contractor contained in s. 2 of the Act, and Mr. Riemer’s own admission in Exhibit P-6, his statementgiven on April 18, in which he acknowledges that “I am the contractor other than the owner”, he acknowledges that it was he whocontrolled his actions or activities at the workplace. This question is also dealt with in paragraph 33 of this decision. [112] I therefore conclude that the Crown has established the actus reus of count 1. This then leads to an examination of whether ornot Mr.

Riemer can afford himself the defence of due diligence. [113] In my view, he cannot, for a number of reasons. [114] The Crown relies partially on s. 62 of the Act, which reads as follows: In any proceedings for an offence pursuant to this Act or the regulations consisting of a failure to comply with a duty or requirement to dosomething so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall befor the accused to prove, as the case may be, that it was not practicable or not reasonably practicable to do more than what was actuallydone to satisfy the duty or requirement, or that there was no better practicable means than was actually used to satisfy the duty orrequirement. [115] The Crown argues that s. 62 is a statutory codification of the due diligence principle stated in the case of R. v.

Sault Ste. Marie,supra, relying on the decision of R. v. Rosin, 2005 SKQB 537 , 273 Sask. R. 114. The wording of s. 62, as found by Mr. JusticeBall in Rosin, is the proper approach to take (see paragraph 30 CanLII).

That is, having determined that the Crown has established theelements of the offence beyond a reasonable doubt, in assessing due diligence, the question is “whether the accused had shown on abalance of probabilities that it was not practicable or not reasonably practicable to do more than was actually done to satisfy the dutyimposed by The Occupational Health and Safety Act, 1993”. [116] In my view, there is no evidence to suggest that the defendant has shown on a balance of probabilities that it was not practicableor not reasonably practicable to do more than was actually done to satisfy the duty imposed by the Act.

All that Mr. Riemer did, at themost, was move a few shovels full of dirt in an effort to try to locate the riser. This was done in a situation in which Mr. Riemer had pastknowledge of the risk of working around live gas lines, and therefore had to have known the potential disastrous consequences ofsnagging the gas line with the bucket of his backhoe. [117] As the Crown points out, there was no pressing urgency to do what Mr. Riemer did; he had ample time to carefully dig with ashovel to expose the riser.

It would seem to me that that would be the proper thing to do, even if there was some urgency to proceed. [118] Much has been made, in the defence, as to things that others might have done, or perhaps not done, to avoid what occurred. What I am dealing with in this case, however, is what is laid out in count 1, with respect to the defendant. It is irrelevant to thatdetermination what others may or may not have done, as those matters are not before me. (iv) Determination

(iv) Determination [ 119 ] I find that the Crown has established all of the essential elements of count 1, and that the defence of due diligence has not been satisfied on a balance of probabilities. Mr. Riemer is guilty on count 1. B. Count 2 [ 120 ] Count 2 as now amended reads: On or about the 18 th day of April A.D. 2008 at or near Nipawin, Saskatchewan did fail to conduct his undertaking in such a way as to ensure, insofar as is reasonably practicable, that he and workers, employed on or about the same place of employment, who may be affected by the undertaking, are not thereby exposed to risks to their health and safety as is required by s. 5(

a) of The Occupational Health and Safety Act, 1993 and did thereby contravene s. 57(

a) of The Occupational Health and Safety Act, 1993 . [ 121 ]

Section 5(

a) of the Act reads: Every self-employed person shall: (

a) conduct his or her undertaking in such a way as to ensure, insofar as is reasonably practicable, that the self-employed person and workers employed on or about the same place of employment who may be affected by the undertaking are not thereby exposed to risks to their health and safety; [ 122 ] A “self-employed person” is defined in s. 2 of the Act as “a person who is engaged in an occupation but is not in the service of an employer”. [ 123 ] An “employer” is defined as: A person, firm, association or body that has, in connection with the operation of a place of employment, one or more workers in the service of the person, firm, association or body. [ 124 ] A “place of employment” means any plant in or on which one or more workers or self-employed persons work, usually work or have worked; and a “plant” includes any premises, site, land, mine, water, structure, fixture or equipment employed or used in the carrying on of an occupation. [ 125 ] An “occupation” means employment, business, calling or pursuit. [ 126 ] For the purposes of count 1, I have determined that Mr.

Riemer was a contractor, both by his own admission of being in that capacity, and the fact that he was directing “the activities of one or more employers or self-employed persons involved in work at the place of employment”, which would include Mr. Jack Boxall and Mr. Brent Boxall. Mr. Riemer was not their employer as it was an independent relationship between the trucking operation and Mr. Riemer’s work. I conclude that Mr. Riemer was a self-employed person, for the purposes of this count 2, as he was engaged in an occupation but was not in the service of an employer. (

i) Crown Position [ 127 ] The Crown argues that Mr. Riemer was aware of the risks associated with the live gas line, and the riser, and refers to his statement of April 23, 2008 (Exhibit P-12), wherein he states “... it is clearly foreseeable that such lines could be damaged by equipment

or falling debris resulting in the escape of gas and a consequent explosion or fire”. This particular statement was prepared by Mr. Riemer and provided to Mr.

Lloyd, in the course of the investigation, in his own wording, that is, it is not a question and answer type statement. [ 128 ] The Crown argues that by failing to expose the gas riser by hand, instead using the backhoe, the defendant committed a prima facie breach of s. 5(a), with the obvious result that any workers employed on or about that place of employment were exposed to risk to their health and safety. [ 129 ] The Crown then repeats the argument they had made earlier respecting the defence of due diligence, arguing that due diligence has not been established by the defence. (ii) Defence Position [ 130 ] The defence position is that the Act is designed to have application to the party with the most control in the situation.

Further, when looking at s. 57 and s. 58(1), (3), (5) and (7), the defence argues that that penalty

section contemplates various penalties based upon “causation”. The argument is then developed that, although all parties are to have some responsibility for what that party can control, the primary responsibility for this situation lay elsewhere than with Mr. Riemer. [ 131 ] Following that line of reasoning, it is argued that SaskEnergy did not advise Mr. Van Dorpe about the option of removing the lines, and that SaskEnergy, knowing the nature of the work, should have ensured that the line was removed in its entirety. [ 132 ] Further, the argument is made that the only action taken by Mr.

Riemer was in snagging the line, and that at that time there were no other employees present. It is argued that that was the reasonably practicable thing for him to do, that is, to use the backhoe, to remove the dirt covering the line, as trying to expose the line by shovelling was not practicable. (iii) Analysis [ 133 ]

Section 62 of the Act , reproduced previously, casts the onus on the defendant, on a balance of probabilities, to establish that it was “not practicable to do more than was actually done to satisfy the duty or requirement, or that there was no better practical means than was actually used to satisfy the duty or requirement”. [ 134 ] What is in issue in this case is the due diligence, or lack thereof, of Mr. Riemer himself. As indicated earlier, Mr. Riemer is the individual charged with an offence.

The fact that other people may be responsible (and I am specifically declining to make any ruling on that point, as it is unnecessary for the purposes of this decision) does not address the issue of what Mr. Riemer’s efforts were. [ 135 ] Further, as noted earlier, there may be overlapping duties and responsibilities. Thus, even if one were to conclude that some other person or persons should have or could have done more, that would have no impact on Mr. Riemer’s continuing obligations. Mr.

Riemer is not charged with creating an explosion, although the snagging of the line certainly put in motion the events that ultimately led to that result. The charge he faces in count 2 is not based on the result of his actions; it is based on his failure to do the work in such a way as to avoid exposing himself and other workers to risks. [ 136 ] Mr.

Riemer performed his undertaking, particularly in failing to expose the gas riser in a safe manner, failed, to use the wording of the charge, “to ensure, insofar as is reasonably practicable, that he and workers, employed on or about the same place of employment, who may be affected by the undertaking, are not thereby exposed to risks to their health and safety”. The fact that Jack and Brent Boxall were killed does not prove the risk, although their deaths were a consequence of a tragic chain of events. The risk existed, irrespective of those consequences.

From the time that the gas riser was snagged, anyone in the area encompassing “the same place of employment”, either at that immediate moment or shortly thereafter, were “thereby exposed to risks to their health and safety”.

[ 137 ] As to the argument that there were no other workers around at the time of the snagging of the line, that is not borne out by the evidence, as the drivers were in and out of the area throughout the day. Further, the potentially affected workers are not confined to persons other than Mr. Riemer. The section, and the charge, refer to an exposure of risk to, among others, Mr. Riemer himself. (iv) Determination [ 138 ] I am satisfied beyond a reasonable doubt that the Crown has established the actus reus of count 2. [ 139 ] The same due diligence argument pertaining to count 1 applies equally to count 2. Mr.

Riemer has failed to establish, on a balance of probabilities, that he exercised due diligence. He was working around a live gas riser, he knew of the risks involved with working around live gas lines, yet he conducted his undertaking in a way that was not necessary, as noted with respect to count 1. The way to deal with this would have been to expose the riser by hand, thereby ensuring that what did occur, that being snagging the line with the backhoe bucket, could not occur. [ 140 ] Mr.

Riemer has failed to establish that there was no better practical means than was actually used to satisfy the onus upon him in this case. [ 141 ] I find Mr. Riemer guilty on count 2. IV. Conclusion [ 142 ] Mr. Riemer is guilty on count 1 of the information, and count 2 as amended.

Any argument that the defence may wish to make, if any, as to whether or not one of the counts should be stayed, to prevent offending the rule against multiple convictions for the same delict, can be made at the time of submissions as to sentence. [ 143 ] As I have stated on a number of occasions throughout this decision, I am dealing with the culpability, or lack thereof, of Mr. Riemer, as that is before me.

However, there has been a consistent defence theme raised throughout this case that others could have and should have done more, in either having the lines removed entirely before the demolition work started, or in taking steps to avoid the explosion occurring. This decision did not deal with those issues as this trial dealt with Mr. Riemer and his duties and responsibilities and, in particular, the actions he took in snagging the gas line. Mr.

Riemer was the person with the greatest amount of control over the demolition operation. [ 144 ] I thank both counsel for clearly laying out their respective positions in their written arguments; they were most helpful to me. [ 145 ] Counsel may speak to sentence at a future date. Dated at Nipawin, Saskatchewan, this 16th day of May, 2012. B. Morgan, J