Her Majesty the Queen - v. -, 2012 SKPC 170

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 170 Date: October 29, 2012 Information: 24424873 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Flaman Sales Ltd. Appearing: Mr. A. Touet Counsel for the Accused (Applicant) Ms. T. Harasen Counsel for the Crown (Respondent) JUDGMENT D.C. SCOTT , J INTRODUCTION [ 1 ] The accused Flaman Sales Ltd. is charged on Information 24424873 that: On or about the 16 th day of December 2009, at or near Debden, Saskatchewan, fail to ensure, insofar as was reasonably practicable, that

a grain extractor it supplied to Greenspring Ag Services Ltd., complied with the requirements of The Occupational Health and SafetyAct, 1993, and its associated regulations, by failing to effectively guard an exposed moving shaft on the grain extractor, resulting in thedeath of a worker, Denis Belair, and did thereby contravene sections 8(a)(ii), 57(

a) and 58 of the Occupational Health and Safety Act,1993. [2] The accused has applied under

section 601 of the Criminal Code (Code) for an order quashing the Information on thegrounds that the Information: (

a) Does not meet the basic requirements of s. 581(3) of the Code; (

b) Does not disclose an offence known to law; and (

c) Is a nullity and cannot be salvaged by particulars or amendment. [3] It is the Crown’s position that the Information provides sufficient detail regarding the charge the accused is facing and thatany uncertainty about whether the accused is caught by the provisions of The Occupational Health and Safety Act, 1993, c. O-1.1 (Act)or its Regulations ought to be left for the trial judge to decide. Further, the Crown argues that the Court is obliged to ensure a chargedoes not fail as a result of a mere technical defect. BACKGROUND [4]

Section 601 of the Code sets out the powers to quash or amend an indictment. Section 581(3) of the Code provides:

(3) A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information withrespect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence orinsufficiency of details does not vitiate the count. [5] In R. v. Côté, (SCC), [1977] S.C.J. No. 37 (S.C.C.), de Grandpré J. articulated the rule applicable in cases ofthis kind: ...the golden rule is for the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of afull defence and a fair trial.

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

section of the Code, it is impossible for the accused to be misled. To hold otherwise would be to revert to theextreme technicality of the old procedure. [6] The accused relies on the decision in R. v. Wis Developments et al, (SCC), [1984] 1 S.C.R. 485, whereLamer J. commented that “an accused must be able to identify what he is alleged to have done wrong so that he may prepare his caseadequately” (para. 17). [7] The current approach with respect to applications of this nature is found in R. v.

Moore, (SCC), [1988] 1S.C.R. 1097, where Dickson C.J. stated at para. 16: ...it is no longer possible to say that a defective information is automatically a nullity disclosing no offence known to law. If thedocument gives fair notice of the offence to the accused, it is not a nullity and can be amended under the broad powers of amendment s.529 [now s. 601] gives to the courts. Only if a charge is so badly drawn up as to fail even to give the accused notice of the charge will itfail the minimum test required by s. 510(2)(c) [now s. 581(2)(c)].

A charge that is this defective would have to be quashed. [Emphasisadded] It is now well-accepted that the discretion to quash an Information is severely limited. [8] In determining whether an Information complies with

section 581 of the Code, the Court is to adopt a flexible approach,

rather than a technical one; the central consideration is whether the accused has been “reasonably informed of the transaction allegedagainst him”. If not, the Court should attempt to salvage rather than quash the Information, through particulars or amendment. Only inthe event that the Information is a nullity, should it be quashed (R. v. Crouch (1994), (SK KB), 127 Sask. R. 156(Sask. Q.B.) paras. 6-7; Her Majesty the Queen v. Albert Ethier, Q.B. 20/93, June 24, 1994, unreported). [9] In R. v. Davis, [2000] P.E.I.J.

No. 100 (S.C.), the Court held that a charge is a nullity or defective in substance only where itfails to charge any offence at all or where it fails to allege an essential element necessary to constitute the offence.

The Court cited T.Quigley, Procedure in Canadian Criminal Law (Toronto: Carswell, 1997), at p. 358: The phrase “not an offence known to law”...should now carry a very restricted meaning by referring only to situations where there isliterally no such offence, either because it has been repealed, is not yet in force, or perhaps, because the wording is so palpably bad that itbears no resemblance to any existing offence. ISSUES The issues for this Court are:

(1) Has the accused been reasonably informed of the transaction alleged against it?

(2) Does the alleged transaction amount to an offence known to law?

(3) If the Information is defective, can it be salvaged by particulars or amendment? ANALYSIS

(1) Has the accused been reasonably informed of the transaction alleged against it? [10] The accused argues that the Information does not contain sufficient detail to give to it reasonable information with respect tothe charge and does not meet the basic requirements of

section 581. Therefore, the Information should be quashed pursuant to section601 of the Code. [11] The Crown argues that the Information is sufficiently particular to give notice to the accused with respect to the allegationsagainst it and the case it must defend.

The Crown contends that the Information provides for sufficient, if not extensive, detail regardingthe charge the accused is facing, as illustrated by the accused’s ability to argue why it considers itself free of the duties alleged. [12] In essence, the Information alleges that the accused, in supplying a grain extractor, failed to effectively guard an exposedmoving shaft on the grain extractor it supplied, thereby resulting in a worker’s death and contravening

section 8(a)(ii) of the Act. [13] The Information details the name, address and status of the accused, the date and location of the alleged offence, the allegedaction or omission on the part of the accused, the duty it is alleged to have breached and the relevant

section of the Act. I find that theInformation is sufficiently particular on its face, for the accused to discern the nature of the transaction it is alleged to have committed.

(2) Does the alleged transaction amount to an offence known to law? [14] The accused argues the allegations contained in the Information do not amount to an offence known to law. According to theaccused, it is not a known offence for a supplier to fail to effectively guard an exposed moving shaft on a grain extractor, as there is noprovision in the Act or Regulations which creates such an offence. The Information makes reference to sections 8(a)(ii), 57(

a) and 58 of

the Act . Sections 57(

a) and 58 are the offence and penalty provisions of the legislation. It is an offence under the Act to fail to discharge a duty to which a party is subject, including one pursuant to

section 8, or to contravene a Regulation . [ 15 ]

Section 8(a)(ii) of the Act imposes a duty on every supplier to: (

a) ensure, insofar as is reasonably practicable, that any biological or chemical substance or any plant supplied by the supplier to any owner, contractor, employer, worker or self-employed person for use in or at any place of employment: ... (ii) complies with the requirements of this Act and the regulations .[Emphasis added] [ 16 ] “Plant” is defined in

section 2(

x) of the Act as including any “premises, site, land, mine, water, structure, fixture or equipment employed or used in the carrying on of an occupation”. It is admitted by the accused that, in this context, “plant” includes a grain extractor. [ 17 ] Therefore, there is a statutory duty on a supplier of a grain extractor to ensure it complies with the Act and associated Regulations . The Information alleges the accused contravened

section 8(a)(ii) by “failing to effectively guard an exposed moving shaft on the grain extractor”. It is not disputed that the applicable provisions which concern the installation of effective safeguards are sections 137(1) and 135(3) of The Occupational Health and Safety Regulations, 1996, c. O-1.1 Reg. 1. Section 137(1), Regulation 1 [ 18 ] Section 137(1)(

a) of Regulation 1 provides in part that, except where otherwise provided by the Regulations , an “employer or contractor” shall provide an effective safeguard where a worker may contact a dangerous moving part of a machine. [ 19 ] This provision specifically imposes a duty upon an “employer or contractor” to safeguard equipment, but does not expressly impose a similar duty upon a supplier. [ 20 ] The Information in this case, specifically alleges the accused “supplied” a grain extractor to Greenspring Ag Services Ltd.

The accused argues that because it has been specifically identified as a supplier in the Information, section 137(1), which is directed at employers and contractors, cannot create an offence against it. [ 21 ] The Crown argues that

section 137 can be interpreted to include duties and obligations on a supplier. The Crown submits the Act is worker protection legislation and that most of its provisions address employers, contractors and sometimes manufacturers. But, because the legislation is an all-encompassing worker protection regime, it also applies to suppliers. [ 22 ] In the Alberta Provincial Court case of R. v. 402485 Alberta Ltd. , 2011 ABPC 91 , a supplier of a mechanical calf-roping ride was charged with failing to ensure the equipment complied with The Occupational Health and Safety Act and Regulations .

The provision under which the accused was charged imposed a duty only on employers. In quashing the charge, the Court stated at para. 22: ...the legislature specifically states the parties to whom the provision is intended to apply. Section 12(1) of the Regulation, specifically creates duties upon employers, and does not purport to impose any of the same duties upon a supplier, or any other party. [ 23 ] The Court continued at para. 26:

Therefore, because of the penal nature of the legislation, it is not open to the Crown to argue that Section 12(1)(

b) of the Regulationcreates an offence against a supplier, when the

Section itself specifically refers to the duties of an employer. The party to whom anoffence applies must be clearly stated in the legislation itself, if the legislative provision is used as the basis for prosecution. [24] I agree with the reasoning of the Court in 402485 Alberta Ltd. In the Act, employers, contractors and suppliers are distinctlydefined (see section 2(1)) and it is clear the legislation imposes specific duties upon each. Had the legislature intended that the dutiesimposed by

section 137 apply to suppliers, it would have expressly so stated. [25] If faced only with

section 8 of the Act and

section 137 of Regulation 1, I would be inclined to find that the Information doesnot disclose an offence known to law. However, the Court must also consider section 135(3). Section 135(3), Regulation 1 [26] The second provision dealing with safeguarding machinery is section 135(3) of Regulation 1, which provides as follows:

(3) Where a worker is required to feed material into a material-forming press, punch, shear or similar machine, an employer, contractoror supplier shall: (

a) where practicable, install a positive means to prevent the activation of the machine while any part of the worker’s body could beinjured by moving parts of the machine; or (

b) where it is not practicable to comply with clause (a), install safeguards to prevent the worker from contacting a moving part of themachine. [Emphasis added] [27] The accused submits that s. 135(3) imposes a duty upon a supplier where a worker is required to “feed material into amaterial-forming press, punch, shear or similar machine.” A grain extractor is specifically referred to in the Information. According tothe accused, a grain extractor is a machine used to extract grain and does not contain nor can it be considered as a material-forming press,punch, shear or similar machine.

Further, the accused submits, a worker is not required to “feed material into” a grain extractor. Rather,it is a moving shaft which attaches to a grain bag. The machine then extracts the grain directly from the bag. No evidence was presentedon this point.

According to counsel for the accused, no evidence is necessary and the distinction between the machines described in s.135(3) and a grain extractor is as apparent as that between a “Toyota Camry and an airplane”. [28] The Crown argues that one of the issues for the trial judge in this matter is whether the grain extractor, which is newtechnology, falls within the duties imposed upon a supplier under the Act. Likewise, the issue of what constitutes “material” within themeaning of

section 135 is also an issue more properly placed before the trial judge. The Crown argues these are matters of evidence thatought to be determined at trial. [29] In the case of R. v. Badry, 2000 ABPC 126 , [2000] A.J. No. 986 (Alta. P.C.), an accused was charged with offencesunder The Occupational Health and Safety Act of Alberta. In that case, one count sufficiently identified the transaction, but the actioncomplained of did not constitute an offence. In allowing the application to quash, the Court stated of one of the charges: Count 6 identifies the date, the location, the status of the defendant and the

section under which he is charged. The particulars includedwithin the charge indicate that the transaction complained of is allowing an open flame within a hazardous location. The sectionproscribes the operation of an internal combustion engine in a hazardous location. While the transaction complained of is sufficientlyidentified, I fail to see that the action complained of constitutes an offence. This count is quashed. [30] In Badry, the distinction between an open flame and an internal combustion engine must have been apparent to the Court. Inthe case before me, whether a grain extractor falls within the category of “similar machine” in

section 135 is not so obvious. There is noevidence before this Court regarding the nature of a grain extractor, its operation and the necessary safeguards which must be applied.

[ 31 ] Through the operation of the Act and Regulations , a supplier of certain machinery is required to safeguard it, so as to prevent a worker from contacting a moving part of the machine. Whether such machinery includes that supplied by the accused in this case ought to be decided at trial. [ 32 ] Accordingly, the Court is not in a position to make a determination on the face of the Information that it discloses no offence known to law. Neither is the Court able to conclude that the alleged offence is a nullity. The Information relates the alleged transaction to a definite offence identified by a definite

section ( Côté ). This is not a circumstance where there is no such offence or where the wording of the charge is so palpably bad that it bears no resemblance to any existing offence (Quigley). 3. If the Information is defective, can it be salvaged by particulars or amendment? [ 33 ] In R. v. Reimer , [2012] S.J. No. 312 (Sask. P.C.) , Morgan J. of this Court interpreted The Occupational Health and Safety Act as remedial legislation which ought to be given wide and liberal

interpretation (para. 105). In that case, the accused brought an application to quash one count on the Information as a nullity, because it ought to have alleged an offence contrary to

section 57(

a) rather than

section 57(

b) of the Act . The Court held that the accused had been reasonably informed of the transaction alleged against him and the defence was neither misled nor prejudiced by the erroneous reference. The appropriate remedy was to amend the Information. [ 34 ] The circumstances in this case are different. The Information before me is not defective in form or substance. It provides sufficient detail with respect to the alleged transaction and accurately reflects the legislative provisions on which the charge is based. There is no defect which may be cured by amendment or particulars.

CONCLUSION [ 35 ] In conclusion, I have found that the Information provides sufficient detail of the alleged transaction. Whether there is a known offence against a party in the position of the accused for the transaction alleged is a triable issue. There is no order for amendment or particulars which may be made. [ 36 ] I therefore decline to quash the Information. [ 37 ] I thank counsel for their submissions and briefs of law which were most helpful to the Court. ____________________ D.C. Scott, J