R. v. Atlantic Road Construction & Paving Limited, 2023 NSPC 10

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Atlantic Road Construction & Paving Limited , 2023 NSPC 10 Date: 20230421 Docket: 8493290, 8493291, 8493292 8493294, 8493295, 8493298, 8493299, 8493300, 8493301, 8493302, 8493303, 8493307, 8493308 Registry: Halifax Between: His Majesty the King v. Atlantic Road Construction & Paving Limited Judge: The Honourable Judge Paul B Scovil Heard: September 6, 7, 8, 9, 12, 13, 14, 15, 2022 February 3, 2023, in Halifax, Nova Scotia Decision April 21, 2023 Charge: Section 74(1)(

a) x 13 Occupational Health and Safety Act Counsel: Alex Keavney and Brian Cox, for the Crown Michael Blades and Grace Levy for the Defendant By the Court: [ 1 ] In the spring of 2019, a construction project of a fairly large modern building was underway at the corner of Pepperell Street and Robie Street in Halifax, Nova Scotia. The developer was Dexel Developments Limited (Dexel) and the accused, Atlantic Road Construction and Paving Limited (ARCP), was subcontracted to excavate the site to the required subgrades.

This involved ARCP blasting bedrock and excavating the site. [ 2 ] ARCP’s class 1 blaster onsite was Thomas Wilson. He was called by the Crown in this matter as their main crown witness. On March 6, 2019, while excavating the site an excavator uncovered an intact undetonated explosive charge. This was clearly a misfired charge. As is required by the Blasting Safety Regulations ( BSR ’

s) made under

section 82 of the Occupational Health and Safety Act of Nova Scotia , Mr. Wilson reported the misfire to the appropriate officials. [ 3 ] A closed-circuit video recording camera had been installed by Dexel on a neighbouring hotel roof. This camera recorded the Pepperell Street worksite during the entire period in question in this matter. These videos were entered into evidence by the Crown. More will be said regarding the videos later. [ 4 ] Officer Terry Duggan took over the investigation of the reported misfire from officer Ron Buchanan on March 13, 2019.

Officer Duggan obtained the ARCP paperwork and all video surveillance from the hotel rooftop. He then scoured the records and recordings. He reviewed the very extensive recordings up to five times. Based primarily on the videos reviewed by Officer Duggan, he laid twenty charges under the Occupational Health and Safety Act . Counts number 4, 8, 9, 16, 17 and 18 were dismissed prior to trial on application by the Crown. The information did not contain a count 5. These are the charges which were placed before the court at trial: 1.

On February 5, 2019, Atlantic Road Construction & Paving Limited, being an employer under the Act, failed to ensure explosives were stored in a magazine or day box on February 5, 2019, contrary to

section 31 of the Blasting Safety Regulations, thereby committing an offence contrary to section 74(1)(

a) of the Occupational Health and Safety Act.

2. On February 5, 2019, Atlantic Road Construction & Paving Limited, being an employer under the Act, failed to ensure that no person handle a detonator together with another type of explosive, except while priming a charge, contrary to section 34(1) of the Blasting Safety Regulations contrary to section 74(1)(

a) of the Occupational Health and Safety Act. 3. On February 5, 2019, Atlantic Road Construction & Paving Limited, being an employer under the Act, failed to ensure explosives were handled subject to impact and impact and rough handling instructions, contrary to section 26(2) of the Blasting Safety Regulations, thereby committing an offence contrary to section 74(1)(

a) of the Occupational health and Safety Act. 4. On February 6, 2019, Atlantic Road Construction & Paving Limited, being an employer under the Act, failed to ensure explosives were properly stored, contrary to

section 31 of the Blasting Safety Regulations, thereby committing an offence contrary to Section 74(1) (

a) of the Occupational Health and Safety Act. 5. On February 6, 2019, Atlantic Road Construction & Paving Limited, being an employer under the Act, failed to ensure no person smoked in a blasting aera of within 10m of an explosive, a day box, or a magazine, contrary to section 44(1) of the Blasting Safety Regulations, thereby committing an offence contrary to section 74(1)(

a) of the Occupational Health and Safety Act. 6. On February 7, 2019, Atlantic Road Construction & Paving Limited, being an employer under the Act, failed to notify the Director in writing no later than 24 hours after the time of the February 7, 2019, blasting incident contrary to section 12(2)(

a) of the Blasting Safety Regulations, thereby committing an offence contrary to section 74(1)(

a) of the Occupational Health and Safety Act. 7. On February 7, 2019, Atlantic Road Construction & Paving Limited, being an employer under the Act, failed to submit a blasting incident report to the Director as soon as reasonably practicable in relation to the February 7, 2019, blasting incident, contrary to section 12(2)(

b) of the Blasting Safety Regulations, thereby committing an offence contrary to section 74(1)(

a) of the Occupational Health and Safety Act. 8. On February 7, 2019, Atlantic Road Construction & Paving Limited, being an employer under the Act, failed to ensure no person enter or move about the blasting area until a blaster has thoroughly inspected the blasting area for misfired holes and other hazards and has given permission for work to proceed, contrary to

section 84 of the Blasting Safety Regulations, thereby committing an offence contrary to Section 74(1)(a) 9. On February 7, 2019, Atlantic Road Construction & Paving Limited, being an employer under the Act, failed to ensure explosives were properly stored, contrary to

section 31 of the Blasting Safety Regulations, thereby committing an offence contrary to section 74(1) (

a) of the Occupational Health and Safety Act. 10. On February 7, 2019, Atlantic Road Construction & Paving Limited, being an employer under the Act, failed to take every reasonable precaution in the circumstances to ensure the health and safety of persons at or near the workplace, to wit, failed to ensure a blaster conducted a thorough post-blast inspection, contrary to section 13(1) of the Occupational Health and Safety Act, thereby committing an offence contrary to section 74(1)(

a) of the Occupational Health and Safety Act. 11. Atlantic Road Construction & Paving Limited, failed to ensure the blaster made a complete blast log for the February 7, 2019 blast, contrary to section 13(2) of the Blasting Safety Regulations, thereby committing an offence contrary to section 74(1)(

a) of the Occupational Health and Safety Act. 12. On February 25, 2019, Atlantic Road Construction & Paving Limited, being an employer under the Act, failed to notify the Director in writing no later than 24 hours after the time of the February 25, 2019 blasting incident, contrary to section 12(2)(

a) of the Blasting Safety Regulations, thereby committing an offence contrary to section 74(1)(

a) of the Occupational Health and Safety Act. 13. On February 25, 2019, Atlantic Road Construction & Paving Limited, being an employer under the Act, failed to submit a blasting incident, report to the Director as soon as reasonably practicable in relation to the February 25, 2019 blasting incident contrary to section 12(2)(

b) of the Blasting Safety Regulations, thereby committing an offence contrary to section 74(1)(

a) of the Occupational health and Safety Act. Evidentiary Issues Regarding Admissibility [ 5 ] ARCP argues that the video obtained from the rooftop of the hotel, the blast logs, Atlantic Explosive Limited documents, as well as other written and electronic documents are inadmissible and should be excluded. [ 6 ] ARCP argued that the rooftop videos do not meet the provisions of the Canada Evidence Act and further the video was not shown to be an accurate or fair representation of what the video purports to depict.

The matters here are not covered by the Canada Evidence Act as they are alleged provincial legislative infractions. The governing act regarding this is the Nova Scotia Evidence Act. I will analyze the argument of ARCP through the lens of the Nova Scotia provisions. [ 7 ]

Section 23 of the Act states: Business records 23

(1) In this Section, (a) “business” includes every kind of business, profession, occupation, calling, operation of institutions, and any and every kind of regular organized activity, whether carried on for profit or not;

(b) “record” includes any information that is recorded or stored by means of any device.

(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.

(3) Evidence to the effect that the records of a business do not contain any record of an alleged act, condition or event shall be competent to prove the non-occurrence of the act or event or the non-existence of the condition in that business if the judge finds that it was the regular course of that business to make such records of all such acts, conditions or events at the time or within reasonable time thereafter and to retain them.

(4) The circumstances of the keeping of any records, including the lack of personal knowledge of the witness testifying as to such records, may be shown to affect the weight of any evidence tendered pursuant to this Section, but such circumstances do not affect its admissibility.

(5) Nothing in this

Section affects the admissibility of any evidence that would be admissible apart from this

Section or makes admissible any writing or record that is privileged. R.S., c. 154, s. 23. Electronic Records

Interpretation of Sections 23A to 23H 23A In this

Section and Sections 23B to 23H, (a) “data” means representations, in any form, of information or concepts. (b) “electronic record” means data that is recorded or stored on any medium in or by a computer system or other similar device and includes a display, printout or other output of that data, other than a printout referred to in subsection 23D(2). (c) “electronic records system” includes the computer system or other similar device by or in which data is recorded or stored, and any procedures related to the recording and storage of electronic records. 2002, c. 17, s. 2 . Effect on common law or statutory rule 23B

(1) Sections 23C to 23H do not modify any common law or statutory rule relating to the admissibility of records, except the rules relating to authentication and best evidence.

(2) A court may have regard to evidence adduced under Sections 23C to 23H in applying any common law or statutory rule relating to the admissibility of records. 2002, c. 17, s. 2 . Burden of proof 23C The person seeking to introduce an electronic record in any legal proceeding has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be. 2002, c. 17, s. 2 . Best evidence rule. 23D

(1) In any legal proceeding, subject to subsection (2), where the best evidence rule is applicable in respect of an electronic record, the rule is satisfied on proof of the integrity of the electronic records system in or by which the data was recorded or stored.

(2) In any legal proceeding, an electronic record in the form of a print-out that has been manifestly or consistently acted on, relied upon or used as the record of the information recorded or stored on the printout is the record for the purposes of the best evidence rule. 2002, c 17, s. 2 . Integrity of electronic records system 23E In the absence of evidence to the contrary, the integrity of the electronic records system in which an electronic record is recorded or stored is presumed in any legal proceeding. (

a) by evidence that supports a finding that at all material times the computer system or other similar device was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic record, and there are no other reasonable grounds to doubt the integrity of the electronic records system; (

b) if it is established that the electronic record was recorded or stored by a party to the proceedings who is adverse in interest to the party seeking to introduce it; or (

c) if it is established that the electronic record was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not record or store it under the control of the party seeking to introduce the record. 2002, c. 17, s. 2 .

Determination of admissibility 23F For the purpose of determining under any rule of law whether an electronic record is admissible, evidence may be presented in any legal proceeding in respect of any standard, procedure, usage or practice on how electronic records are to be recorded or stored, having regard to the type of business or endeavour that used, recorded or stored the electronic record and the nature and purpose

of the electronic record. 2002, c. 17, s. 2. Affidavit 23G The matters referred to in subsection 23D(2) and Sections 23E and 23F may be established by an affidavit given to thebest of the deponent’s knowledge. Cross-examination of deponent 23H

(1) A deponent of an affidavit referred to in

Section 23G that has been introduced in evidence may be cross-examined asof right by a party to the proceedings who is adverse in interest to the party who has introduced the affidavit or has caused the affidavit tobe introduced.

(2) Any party to the proceedings may, with leave of the court, cross-examine a person referred to in clause 23E(c).2002, c. 17, s. 2. [8] The burden is on the Crown to prove the videos’ authenticity. Courts have held that video evidence can be self authenticating(see R v. Murphy, [2011] N.S.J. No. 302 (NSCA) as well as R. v. Nikolovski, (SCC), [1996] 3 S.C.R. 1197). [9] In Murphy the Court of Appeal stated at paragraphs 31 to 33 as follows: 31. Further, and of greater concern, is the trial judge's failure to recognize that videos depicting the theft itself may be self-authenticating. In R. v.

Nikolovski, (SCC), [1996] 3 S.C.R. 1197, the Supreme Court of Canada held: 23 It is precisely because videotape evidence can present such very clear and convincing evidence of identification thattriers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime. It is clear that atrier of fact may, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of asingle eyewitness. It follows that the same result may be reached with even greater certainty upon the basis of good quality videoevidence.

Surely, if a jury had only the videotape and the accused before them, they would be at liberty to find that the accused they seein the box was the person shown in the videotape at the scene of the crime committing the offence. If an appellate court, upon a reviewof the tape, is satisfied that it is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused asthe person in the tape beyond any reasonable doubt then that decision should not be disturbed. Similarly, a judge sitting alone canidentify the accused as the person depicted in the videotape. 32.

The trial judge's error is obvious. So much so, that the respondent, in his factum, appropriately concedes that the trial judgeerred by precluding the loss prevention supervisor from accessing and viewing the contents of the video tendered by the Crown beforeproviding testimony regarding the exhibit's authenticity, integrity and accuracy. However, the respondent submits that the viewing of thevideo would not otherwise have impacted on the trial judge's verdict. I will address the submissions on that issue later in these reasons. 33.

I am satisfied that the trial judge erred in failing to allow the video to be accessed for the purpose of testifying to itsauthenticity, integrity and accuracy. The trial judge compounded this error by concluding the issue was one of continuity and equatingcontinuity to admissibility.

The distinction between the two is discussed in more detail under the next issue. [10] Here, there is no evidence before me that the CCTV footage from the hotel rooftop was altered, inaccurate, or in some waymanipulated in some fashion to the extent that what was captured was not in fact the original picture. [11] Here the requirements for admission of the CCTV footage by the Crown have been met. Having said that, the evidentiaryvalue of the CCTV footage is a separate question when reviewing each count. Crown Burden [12] The nature of these charges falls within general duty offences.

A review of general duty offences can be found in R v. AtlanticRoad Construction and Paving (unreported decision) of Judge MacRury of this court dated September 17, 2021, and R v. AlconConstruction Group Inc. [2018] NSRC 22 and R v. Della Valle [2011] NSPC 67. [13] It is clear that in such cases the Crown must prove each count beyond a reasonable doubt on each and every element. Moreimportantly, if the Crown fails to prove that the Actus Reus of the offences took place the charges fail. The following will examine thefactual basis of each count to determine if any offences have been made out.

Only if proof exists of the Actus Reus offence occurring canthis court go on to determine the culpability of the accused corporate entity. Counts 1, 6 and 13 – ensuring explosives were stored in a magazine or drop box. [14] Counts 1, 6 and 13 are all laid under

section 31 of the BSR’s. They are particularized for February 5, 6 and 7, 2019,respectively. [15]

Section 31 of the BSR’s states: An employer must ensure that explosives are stored only in a magazine licensed under the Explosive Act (Canada) or a day box. [16] The Crown’s position is that there is clear evidence of boxes of detonators being stored in a truck by Mr. Wilson. [17] The Crown further argued that the meaning of “store” is clear. Further that the video evidence shows storage of explosives byemployees in a truck on the days in question. [18] The Crown also points to the logs from Atlantic Explosives regarding drop off and pick up of explosives.

[ 19 ] The Crown notes

section 33 of the BSR in referencing what “storage” meant. Section 33(1)(2) states: Storing detonators 33 ( 1) An employer must ensure that a detonator is not stored in the same day box or magazine as another type of explosive.

(2) An employer must ensure that a detonator is not placed in the same compartment of a vehicle as another type of explosive, unless the detonator is separated from the other type of explosive by using a day box. [ 20 ] ARCP argues that the Actus Reus of these charges are unproven by the Crown. They argue that while Mr. Wilson testified that he kept the detonator in his truck, the only evidence relating to the days particularized are the video images. These images do not prove beyond a reasonable doubt what was placed in the truck. [ 21 ] ARCP argues, as well, that storage of detonators in vehicles are contemplated by section. 33(2) of the BSR. [ 22 ]

Section 33 allows for storage of a detonator in a vehicle provided it is not placed in the same compartment of the vehicle as another type of explosive. [ 23 ] Here there is no evidence that detonators were stored in the vehicle with other explosives. While Mr.

Wilson testified that he sometimes kept detonators in his truck and that the truck was always locked, he did not give any testimony in a reliable manner as to what on the specific days detonators were stored in his truck. [ 24 ] In addition, I can not find, beyond a reasonable doubt, on the totality of the evidence presented by the Crown, that on the particular days charged detonators were placed in the ARCP vehicle. [ 25 ] The video contained with the delivery information from Atlantic Explosive make it likely that materials placed in the ARCP truck were detonators, but it is not proof beyond a reasonable doubt.

It should also be noted that Section 33(2) of the BSR’s clearly contemplate the storage of detonators in a vehicle. Count 2: Mixing explosives while transporting. [ 26 ] The Crown alleges that on February 5, 2019, ARCP failed to ensure that no person handle a detonator together with another type of explosive except while priming a charge, contrary to section 34(1) of the BSR’s . [ 27 ] The evidence from this charge centers on the testimony of Thomas Wilson and video from 8:05 a.m. to 8:07 a.m., and onward to past 8:20 a.m. from the morning of February 5, 2019.

The Crown argues that the video shows Thomas Wilson carrying detonators and explosives in a single bucket. [ 28 ] The crown witness stated that he always separated detonators and any other explosive product into two buckets when carrying them. No other witness testified that they observed two different explosives in the same bucket. [ 29 ] The video possibly shows Thomas Wilson at the ARCP truck at 8:05 a.m. The camera angle is such that activity of Mr. Wilson at the truck is obscured by the truck itself. At one point he picks up the white bucket. It is impossible to tell what, if anything, is in the bucket.

He then makes his way over to the area where the day box is located. The white bucket swings freely by his side with the appearance of being empty. At the day box material is placed in the bucket which is then taken by Mr. Wilson to the blast area. The material appears to possibly be an explosive but even that is not clear. [ 30 ] The evidence regarding this charge does not even make it to the level of proof on the balance of probabilities, let alone beyond a reasonable doubt. It would be wrong to convict on this evidence and accordingly this count is dismissed.

Count 3 – Rough Handling of Explosives [ 31 ] The Crown charged that on the 5 th of February 2019, ARCP failed to ensure that explosives were not subject to impact and rough handling, contrary to s. 26(2) of the BSR’s . [ 32 ] Video surveillance shows that at 8:07 a.m., an individual appears to take a box down a grade. He then rolled the box into a lower area. [ 33 ] The box in question was unloaded from a white van at 8:04 a.m. and carried over to a large box-like object upon which the box was deposited.

It was then picked up and carried to the excavated area. [ 34 ] The Crown called Andrew Joyce, who was the driver for Atlantic Explosives, on the 5 th of February 2019. Mr. Joyce was asked about material delivered to the Pepperell site. Mr. Joyce was less than specific in dealing with the event of February 5, 2019. When asked in direct examination if he made a delivery to the Pepperell site he stated: “I don’t remember that. I remember delivery to that site over a period of time, but I don’t remember any particular day over another.” [ 35 ] The evidence of Mr.

Joyce as to what was in the box in question is sketchy at best. The evidence before me does not allow me to say beyond a reasonable doubt that the material in the box, rolled down into the excavation site, was explosive material. It probably was, but that is not the test.

[ 36 ] Likewise, Mr. Wilson testified that box could have been a box of plastic hole plugs. He also stated that he did not know what was in the box. [ 37 ] As indicated, the evidence of the Crown regarding what was in the box that was rolled down the hill is wholly unreliable given all the evidence before me. [ 38 ] Even if I am wrong regarding the contents of the box, I am not convinced beyond a reasonable doubt that the box was subjected to what the BSR prescribe as “impact and rough handling.” [ 39 ] “Impact and rough handling” are not defined under the BSR’s .

The Crown argues that the wording captures a broad range of conduct that at minimum requires that explosives are handled with care. ARCP argues that “impact” and “rough handling” are broad and ambiguous. [ 40 ] Examining the Occupational Health and Safety Act and the BSR’s clearly shows the legislation is in place to make sure that work sites are safe, and hazards are mitigated to protect workers, employers, and the public. [ 41 ] This is the backdrop to

section 26 of the BSR’s , which state; 26

(1) An employer and a blaster must ensure that explosives are handled in accordance with the manufacturer’s instructions.

(2) An employer and a blaster must ensure that explosives are protected from impact and rough handling. [ 42 ] The intention of the legislation was to require that explosives are handled as per manufacturers instructions and in a safe manner, such that accidental explosions do not occur. [ 43 ] Here, the only crown witness that spoke of the handling of the explosive was Thomas Wilson who emphatically indicated that the actions of the individual who rolled the box into the excavation site area was not what he felt was impactful or rough handling. [ 44 ] No expert testified as to what dangers, or lack thereof, would result if any explosive had been handled in a manner in the video.

No manufacturer testified as to what type of handling of the products on site might endanger the safety or well being of those individuals on site. [ 45 ] Given the above, the Actus Reus of the charge of impactful and/or rough handling has not been proven beyond a reasonable doubt. Count 7 – Smoking within 10 m of an explosive contrary to section 44(1) of the Blasting Safety Regulations . [ 46 ] The charge particularizes the date of February 6, 2019. The evidence centers around the video of a male individual walking across the area being excavated. It vaguely appears that he has something in his hands.

He brings his hand to his mouth and a wisp of white smoke-like substance appears into the air. [ 47 ] The crown witness, Mr. Wilson, indicted that two employees smoked or vaped. There was no direct evidence that on February 6, 2019, anyone had smoked within 10 meters of an explosive or in a blasting area.

It is unclear whether the Crown is charging ARCP with allowing smoking within 10 meters of an explosive or blasting area. [ 48 ] In the end it does not matter, as at best there is some evidence people may have smoked or vaped on the site, but no evidence which is available for the 6 th of February, 2019, to show beyond a reasonable doubt that someone smoked in a blast area or within 10 meters of an explosive, a day box or magazine. The video evidence is hardly conclusive that any smoking occurred. The Crown itself stated the evidence showed smoking OR vaping.

Vaping is not precluded in the BSR’s . [ 49 ] Count seven is dismissed. Counts 10, 11, 19 and 20 [ 50 ] These counts cover February 7 and 25, 2019, and allege that ARCP failed to notify the Director in writing of a blasting incident contrary to section 12(2)(

a) and (

b) of the BSR’s . Section 12(2)(

a) and (

b) states: 12

(2) If a blasting incident occurs, an employer, in consultation with a blaster, must do all of the following: (

a) notify the Director in writing no later than 24 hours after the time of the blasting incident; (

b) submit a blasting incident report and a copy of the blast log to the Director as soon as reasonably practicable; [ 51 ] On the 7 th of February 2019, Mr. Wilson indicated that only 8 of 24 holes with explosives had been fired. The non-detonation of the explosives were caused by a “cut off”. Basically, this means that something, possibly a pinched line in a cord heading to explosives in drilled holes, caused a break to the explosives. [ 52 ] On February 25, 2019, an ARCP employee, while excavating, found three quarters of a stick of Fortel Pro explosives. According to Mr. Wilson, this was the residual stick of explosive that had detonated.

[ 53 ] Neither incident from the 7 th of February 2019, nor the 25 th of February 2019, were treated by Mr. Wilson as a “blasting incident.” Mr. Wilson therefore did not notify the Director in writing within 24 hours, nor did he submit a blaster report and copy of the blast log to the director. The Crown submits there was a failure under the regulations. [ 54 ] Section 12(1)(b)(

i) of the BSR’s defines a blasting incident as including a misfire or suspected misfire. [ 55 ] If either the failure to fire of the 16 holes on February 7 th , 2019, or the partly consumed stick of Fortel Pro were a misfire as listed under

section 12(a)(b)(i), then there would be a requirement to file a Blasting Incident Report. [ 56 ] The charges therefore hinge on whether there was a “misfire.” Section 12(1)(

b) does not define “misfire” nor is “misfire” itself defined in the BSR’s . However, the regulations have a heading Misfires just prior to

section 89, 90 and 91 which together states as follows: Misfires Treating misfired hole 89

(1) An employer and a blaster must ensure that a misfired hole is treated to ensure the removal of all hazards from the misfired hole in a manner that complies with these regulations.

(2) While a misfired hole is being treated, an employer must ensure all of the following: (

a) that the blasting area is fully illuminated. (

b) that the work is directly and constantly supervised by a blaster; (

c) that the cause of the misfire is investigated. (

d) that precautions are taken to prevent an accidental explosion.

(3) An employer and a blaster must ensure that a misfired hole is treated at a safe and suitable time and in accordance with any instructions provided by the manufacturer of the detonator.

(4) Before treating a misfired hole, a blaster must inform all supervisors of all employees in the blasting area of the means that will be used to treat the misfired hole. No metallic equipment after misfire 90 If it is known or suspected that a misfire has occurred, a person must not use metallic equipment in the blasting area until a blaster has authorized the use of metallic equipment.

Checking burden after misfire 91 If it is known or suspected that a misfire has occurred and if the method for treating the misfire is reblasting, an employer must ensure that there is sufficient burden before reblasting. [ 57 ] The Crown argued the use of “misfired hole,” a “misfire” and “misfires” are used throughout the BSR’s and should be interpreted broadly to include explosives used in blasting that, for any reason, failed to fire as planned.

Statutory

Interpretation [58] Judge Buckle of this court in R. v. Halifax Port Authority, 2022 NSPC 13, dealt with statutory

interpretation in regulatorycontext as follows, paras 49-52: [49] The Supreme Court of Canada has repeatedly confirmed that “the words of

an Act are to be read in their entire contextand in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention ofParliament (R v. C.D., 2005 SCC 78, para. 27; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, at para. 26, quoting E. A.Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). [50]

Section 12 of the

Interpretation Act, RSC 1985, c. I-121 provides that “Every enactment is deemed remedial, and shallbe given such fair, large, and liberal construction and

interpretation as best ensures the attainment of its objects”. [51] The proper approach to

interpretation of occupational health and safety legislation was summarized by the OntarioCourt of Appeal in Blue Mountain Resorts Ltd. vs. Ontario (Ministry of Labour), 2013 ONCA 75: [24] Public welfare legislation is often drafted in very broad, general terms, precisely because it is remedial and designedto promote public safety and to prevent harm in a wide variety of circumstances. For that reason, such legislation is to be interpretedliberally in a manner that will give effect to its broad purpose and objective: R. v. Timminco Ltd. (2001), (ON CA),54 O.R. (3d) 21, [2001] O.J.

No. 1443 (C.A.), at para. 22. [page328] [25] In Ontario (Ministry of Labour) v. Hamilton (City) (2002), (ON CA), 58 O.R. (3d) 37, [2002] O.J. No.283 (C.A.), at para. 16, Sharpe J.A. reinforced that notion: The OHSA is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety ofworkers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles.

Protective legislationdesigned to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purpose andobjectives of the legislative scheme. Narrow or technical

interpretations that would interfere with or frustrate the attainment of thelegislature's public welfare objectives are to be avoided. [52] In R. v. Hicks, 2013 NSCA 89, at para. 19, Justice Saunders provided helpful guidance to trial judges called upon to interpretterms in a statute. He said that to determine whether a provision applies to particular facts, an interpreter must consider: What is the meaning of the legislative text? What did the legislature intend? That is, when the text was enacted, what law did thelegislature intend to adopt? What purposes did it hope to achieve?

What specific intentions (if any) did it have regarding facts such asthese? What are the consequences of adopting a proposed

interpretation? Are they consistent with the norms that the legislature ispresumed to respect? Meaning of the Legislative Text [59] The Crown argues that “misfire” is not defined in the BSR’s. However, the Crown argues the use of “misfired hole,” a“misfire” and “misfires”, throughout the BSR’s should provide a broad

interpretation to include explosives used in blasting that for anyreason failed to fire as promised.

Adopting this broad expansive definition would mean something as minor as forgetting to plug in aconnection and as a result no blasting takes place would qualify as a “misfire.” I also note the Crown referenced the definition of“misfire” contained in a Mindat.org Glossary of Mineralogical Terms which states in part that a misfire involves “an explosive charge ina drill hole that has partly or completely failed to explode as planned (emphasis added). [60] ARCP argues that the term “misfire” and “misfired hole” are two terms which must be presumed to have different meaning andthat the Crown has not led any evidence to establish what that different meaning might be.

Consequently, the fact the terms are unclearand ambiguous would result in the charge failing. Legislative Intention [61] The foundation for Occupational Health and Safety Act is set out in

section 2 of the act.

Section 2 states: Internal Responsibility System 2. The foundation of this Act is the Internal Responsibility System which: (

a) is based on the principle that (

i) employers, contractors, constructors, employees and self employed persons at a workplace, and (ii) the owner of a workplace, a supplier of goods or provider of an occupational health or safety service to a workplace or anarchitect or professional engineer, all of whom can affect the health and safety of persons at the workplace, share the responsibility forthe health and safety of persons at the workplace; (

b) assumes that the primary responsibility for creating and maintaining a safe and healthy workplace should be that of each ofthese parties, to the extent of each party’s authority and ability to do so; (

c) includes a framework for participation, transfer of information and refusal of unsafe work, all of which are necessary for theparties to carry out their responsibilities pursuant to this Act and the regulations; and (

d) is supplemented by the role of the Occupational Health and Safety Division of the Department of Labour and AdvancedEducation, which is not to assume responsibility for creating and maintaining safe and healthy workplaces, but to establish and clarify the

responsibilities of the parties under the law, to support them in carrying out their responsibilities and to intervene appropriately when those responsibilities are not carried out. 1996, c. 7, s. 2 ; 2010, c. 66, s. 1 ; 2011, c. 24, s. 1 . [ 62 ] The intention of the legislature in enacting the Occupational Health and Safety Act and the regulations on blasting was to ensure a safe workplace where blasting has occurred within the framework of the industry.

The overview of the BSR’s relating to the terms “misfire” and “misfired hole” indicates that the intention of the term “misfire” is one that is included in what is termed as “misfired hole”.

In regard to a blasting occasion, it would not make sense that a faulty button that caused no blast activity to occur would be a “misfire” or “misfired hole” with the resulting responsibility on a blast site that would flow from that under the BSR’s . [ 63 ] I do not find the crimped cord or cut off that occurred February 7, 2019, meets the definition of a “misfired hole” or “misfire”, such as to trigger the notice requirement and the reporting of a blasting incident as required under the regulations. [ 64 ] Accordingly, I acquit ARCP of counts 10 and 11. [ 65 ] Regarding the incident of February 25, 2019, the Crown’s main witness, Thomas Wilson, referred to the partial recovered material as a residual powder.

His evidence was to the effect that the charge had been expended with some residual powder left. I am not satisfied beyond a reasonable doubt that the Crown has proven there was a “misfired hole” which would trigger the provisions of the BSR’s . [ 66 ] Accordingly, I acquit the ARCP of counts 19 and 20. Entering into a blast area prior to a thorough inspection of the blast area contrary to

section 84. [ 67 ] Count 12 charges that ARCP failed to ensure no person entered or moved about a blasting area prior to a blaster thoroughly inspecting the blast area and had given permission for work to proceed. This allegation relates to February 7, 2019. [ 68 ] The Crown witness Thomas Wilson described, as a blaster in relation to the Pepperell site, what his post blast inspection consisted of. At p. 52 Mr. Wilson stated: A. It could be caught, or it could be pinched by a mat. Q. Okay. A. Either way it’s going to stop the blast, so… Q. So, everything after the cut off doesn’t go off. A. Correct. Q. All right.

So, blast is done you’re watching the tell tale. What’s the next step now in the process? A. Well, that’s – my post blast inspection. Q. Okay. Explain to His Honour what is a post blast inspection? A. When – when I’m absolutely 100% sure everything is gone that I can possibly check, that is my post blast inspection. Q. Okay. A. If my tell tale don’t come off, every – every – or doesn’t detonate, then that’s part of my post blast inspection and I know I have a problem. Q. Okay. So, if the tell tale doesn’t go off you know you have a problem? A. Yes. Q So in that circumstance then the post blast inspection is over?

Is that what you mean? A. Yes… A. There’s nothing more I can do. That’s it. Q. All right. When you say there’s nothing more you can do, does anyone else do anything as part of your post blast inspection? A. Well, if Scott’s around he’ll go down and look around but there’s no point in it. He just – sometimes he just hooks the hook onto the mat for the excavator operator. Q. When you say Scott, if Scott’s around Scott looks around, what does that mean? A. Oh, Scott’s an inquisitive little fellow. I don’t know how else to put it. Like he’s just… Q.

But the question was are there any other steps to the post blast inspection, how is Scott looking around connected to a post blast inspection? A. It’s not.

Q. Okay. A. He just – if he’s got nothing else to do sometimes, he goes down and you’ll see him walk around the mats, but I really don’t what he’s looking for so I don’t say anything to him. He’s just being helpful usually to the excavator operator, but it’s got nothing to do with the post blast inspection. Q. Okay. A. You can’t see nothing. It’s -everything on the surface has detonated, it’s destroyed, it’s gone. Q. Okay. Does – does anyone ever physically check the tell tale? A. Scott does quite often. Q. And is that part of the post blast inspection. A. No.

I already know it’s gone. [ 69 ] As well, from the cross examination of Mr. Wilson by ARCP, a post blast inspection will vary depending on the blast site, size and other conditions. [ 70 ] Mr. Wilson confirmed that his own assistant will only enter the area after an all-clear horn sounds giving permission to go into the blasting area. [ 71 ] The Crown seems to suggest that a blast inspection could only have occurred if the blasting mat had been lifted and inspection completed of shock tubes and detonators.

The problem with this position is that such an inspection could only be done by workers moving into the blast area to lift mats and complete evidence inspection. This, by its very nature, would require persons to enter the blast site prior to the completion of the post-blast inspection. This logic creates a true Catch-22. [ 72 ] I am not satisfied by the evidence that the Actus Reus of count 12 has occurred. There is no proof that anyone entered the blast area prior to a thorough blast area inspection.

Count 14 [ 73 ] Count 14 states: On February 7, 2019, Atlantic Road Construction & Paving Limited, being an employer under the Act, failed to take every reasonable precaution in the circumstances to ensure the healthy and safety of persons at or near the workplace, to wit, failed to ensure a blaster conducted a thorough post-blast inspection, contrary to section 13(1) of the Occupational Health and Safety Act, thereby committing an offence contrary to section 74(1)(

a) of the Occupational Health and Safety Act. [ 74 ] Thomas Wilson’s evidence on behalf of the crown regarding his post-blast inspection of the February 7, 2019, blasts was that he performed post-blast inspections. Further that his visual and audio inspection at detonation were the only possible inspections open to him. He then followed that up with workers removing the blast mats. Mr.

Wilson testified further that no one, including himself, is allowed to enter the blasting area until he had inspected the blast and deemed it safe. [ 75 ] Nowhere in any testimony before the court was there any evidence from Thomas Wilson, nor any other crown witness, that more was required on February 7, 2019, to complete a thorough post-blast inspection.

Nor was there any evidence from the Crown to show more could or should have been done to ensure the health and safety of persons at or near the work site. [ 76 ] The Crown argument regarding this charge is contained at p. 44 of their brief: The Crown submits that ARCP’S s. 84 inspection actually included the checking of the tell-tale, slowly lifting of blast mats, and inspecting the detonators and shock tube. If the C ourt accepts ARCP’s inspection included all these steps then ARCP is not guilty of c ount 14.

However, insofar as the only post-blast inspection performed was the visual inspection at the time of firing, this inspection falls short of ARCP’s general duties and ARCP is guilty of count 14. An employer’s general duties are set out in OHSA Sections 13(1); [ 77 ] By this it appears the Crown’s argument is that the procedure as described by Thomas Wilson is a defence only if Mr. Wilson’s thought process as to what a thorough post-blast inspection included those steps. If Mr. Wilson contemplated that he only needed to do part of what the Crown listed, despite the actual acts having occurred then ARCP is guilty.

In effect the Crown argues that if it was a 12- step inspection process and Mr. Wilson completed all 12-steps but he thought he only was required to do the first 6-steps, it therefore means the accused is guilty. This begs the question as to how could the company on that day know what their head blaster is thinking. [ 78 ] I find that the steps taken by Mr. Wilson in his post-blast process ensured both the health and safety of persons at the site and further was thorough post-blast inspection. [ 79 ] Accordingly, I enter an acquittal on count 14.

Count 15 Count 15 states: that ARCP being an employer under the Act, failed to ensure the blaster made a complete blast log for the

February 7, 2019, blast contrary to section 13(2) of the Blasting Safety Regulations. Thereby committing an offence contrary to section 74(1)(

a) of the Occupational Health and Safety Act. [ 80 ] The Crown sought to prove this offence through the introduction of copies of two documents purported to be blast logs from February 7, 2019, covering two blasts, one at 9:04 a.m., and a second at 9:37 a.m. [ 81 ] The factual background is that a blast area was prepared with 24 holes containing explosives linked together by detonator cord. As testified by the main Crown Witness, Thomas Wilson, an apparent crimp in the cord lead to the 9:04 a.m., blast exploding 8 holes. Sixteen further holes were exploded at 9:37 a.m.

Copies of logs relating to both blasts were sought to be entered by the Crown. ARCP objected to them as being inadmissible in the journal put forward by the Crown. [ 82 ] The Crown sought to introduce the log copies in several ways. The first was through Thomas Wilson. He was shown Exhibit 1, Tab 11(a). Mr. Wilson was able to identify this as the ARCP form for blast logs. When asked if the form was complete and if pages were missing, Mr.

Wilson replied: I don’t think so, I don’t know.” He went on to say that he was unsure if information obtained from K & M Special Consultants regarding their records was complete or not. [ 83 ] Additionally, Mr. Wilson testified that the exhibits were not originals and not accurate as they did not show yellow highlighting that would have been on the original. [ 84 ] The documents sought to be entered by the Crown were those that somehow were obtained by the Department of Labour. [ 85 ] Jeffery MacPherson, Safety Manager for ACRP, testified that he had received a compliance order from the Department of Labour.

This resulted in him being tasked with sending documents, including the exhibits, to the Department of Labour. He stated documents were scanned and when asked if he sent accurate copies he advised he did not alter anything he just gathered up all the documents he could find then scanned and emailed them. [ 86 ] Mr. MacPherson stated he obtained the blast logs from a cabinet in ARCP’s office. He could not testify if they were originals or copies of records.

He could not testify as to the accuracy of the records and for that matter had no knowledge of how the records came to be in the offices of ARCP. [ 87 ] The compliance order issued to ARCP did not require the production of the original blast logs. The compliance officer, Mr. Duggan, testified that in relation to the documents he received from Mr. MacPherson, he had no knowledge of where the documents came from, whether they were originals or copies for that matter. Mr.

Duggan could not testify as to the accuracy of the documents. [ 88 ] The law relating to the records such as this was reviewed by Judge MacRury of this court in R v. Atlantic Road Construction and Paving Ltd and Thomas Wilson, an unreported decision of the Nova Scotia Provincial Court from December 17, 2021, in Sydney Nova Scotia. [ 89 ] There Judge MacRury discussed the Nova Scotia Evidence Act regarding business records, section 23(1) of the Evidence Act sets out: Business records 23

(1) In this Section, (a) “business” includes every kind of business, profession, occupation, calling, operation of institutions, and any and every kind of regular organized activity, whether carried on for profit or not; (b) “record” includes any information that is recorded or stored by means of any device.

(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.

(3) Evidence to the effect that the records of a business do not contain any record of an alleged act, condition or event shall be competent to prove the non-occurrence of the act or event or the non-existence of the condition in that business if the judge finds that it was the regular course of that business to make such records of all such acts, conditions or events at the time or within reasonable time thereafter and to retain them.

(4) The circumstances of the keeping of any records, including the lack of personal knowledge of the witness testifying as to such records, may be shown to affect the weight of any evidence tendered pursuant to this Section, but such circumstances do not affect its admissibility.

(5) Nothing in this

Section affects the admissibility of any evidence that would be admissible apart from this

Section or makes admissible any writing or record that is privileged. R.S., c. 154, s. 23. [ 90 ] In dealing with the blast log admissibility in the case before him, Judge MacRury went on to say: …Finally, in the circumstances surrounding keeping the business records can affect the weight of its evidence but not its admissibility. Section 23(4): the circumstances or keeping any records including the lack of personal knowledge of a witness testifying as such may be shown to affect the weight of the evidence tendered pursuant to the

Section but such circumstances do not affect the admissibility. In Minister of Community Services v. C.C., the Nova Scotia Supreme Court interpreted

Section 23 of the Evidence Act as follows:

[25] In order to find that the notes constitute a business record for the purpose, I must determine whether the notes are kept in theusual and ordinary course of the workers’ duties, made by someone with personal knowledge of the act, occurrence, or event recorded, atthe same time, or within a reasonable time, after the act, occurrence, or event transpired. I should be satisfied that the records were madeby a person and no motive to mislead.” In the Law of Evidence in Canada, Sopinka, Lederman and Bryant stated the record must have been made in the usual course, ordinarycourt of business.

It is the usual course of business to make such a record in writing in R. v. Howe, the Supreme Court held a businessrecord is admissible as an exception to hearsay rule if it is an original entry made contemporaneously in the routine of business by arecorder with personal knowledge of the thing recorded as a result of having done or observed or formatted a duty to make a record so nomotive to misrepresent. The Nova Scotia Evidence Act does not provide permitting copies of business records. An exception would be

Section 23(

d) whichapplies to electronic records. As such, even if the Crown could establish that the record in Exhibit 12 are copies of the business record,the Crown must show these documents are admissible under the best evidence rule. Just Watt described the best evidence rule in Watt’s on Annual Criminal Evidence as follows: “In the original form, the best evidence rule requires the best proof that the nature of the thing wherefor. What it remains in essenceis a requirement that to prove the contents of the document the original should be tendered if available, a copy will not suffice.

Theprimary evidence, the best evidence is required. It includes duplicate originals, when originals is unavailable secondary evidence maybe admitted. The best evidence rule is not engaged when a document is not tendered as proof of its contents. The rule does extend tosituations where the purpose of evidence is to adduce to show that the person had notice or knowledge of the contents of the document. Secondary evidence is admitted by exception in cases where the original existed but was later lost or destroyed. Statutory exceptionspermit the introduction as an example. Canada Evidence Act,

Section 29 and 30, the original is in the possession of a third party forwhom production cannot be compelled. The threshold for admitting secondary evidence is low, usually where a reasonable explanationis provided and a copy is proven to be a copy of the original, the secondary evidence is admitted.” The issue was addressed in Shaghaghi v. Mozaffarian, 2002 BCCA 532 , 2002, B.C.C.A. 532. The B.C. Court of Appealsaid: “The best evidence rule does not… is not in force with the strictness that it once was.

The Court considered modern application ofthe rule and concluded that it is not limited to requiring a party to produce the original if available. Secondary evidence contents of the document may be admitted when a failure to produce the original is explained. In this case the defendant insisted upon proof the originals of the January 16th document, questions both its authenticity and itscontents. No explanation was given for the failure to produce or a copy although it must have been in the Plaintiff’s control. Hesubmitted it to a translator for translation.

Moreover, the exact terms of the document are important. The Defendant points out that theopening entry for the adjustment relied upon by the Plaintiff, that is $144,942 Canadian, is the Plaintiff’s initial investment rests on theevidence as part of Exhibit C. In these circumstances, in my view the trial judge erred in admitting the statement of the translator assecondary evidence authenticating the alleged agreement and explaining the contents. Exhibit C is the sole foundation for thejudgement and Exhibit C should have been admitted into evidence.

The judgement is not sound, I would therefore allow the appeal andset aside the Plaintiff’s Judgment and direct a new trial.” As its core, the issues related to the exceptions to the hearsay are grounded in necessity and circumstantial guarantees or trustworthy. Having considered this argument, I agree with Mr. Wilson’s counsel that Exhibit 12, as a blasting log used by Mr. Wilson. The nature ofthe charge is to determine the adequacy of the blasting log. It is the onus on the Crown to produce a true copy of the original. TheCrown has failed to that in this case. [91] Similar to R. v.

ARCP above, the blast logs here require the Crown to prove the documents as being admissible under anexception to the hearsay rule. [92] The assurance needed for admission under the Nova Scotia Evidence Act, best document rule or any other possible avenues ofadmission are wanting. As indicated above the logs retrieved by Craig MacPherson could not be identified as copies or originals. Thereis no evidence of where the originals exist or, if in fact they existed at the time of trial.

They were not identified as being accurate and infact were clearly missing highlighting that would have been on the original. [93] The evidence by the Crown fails to comply with any rules relating to the admission of the blast logs under any hearsayprovisions.

They are not admissible here. [94] Even allowing them in, but examining what weight might attach to them, the evidentiary problems provides that no weightshould be given to these logs. [95] If I am wrong regarding the admissibility of the logs, I still find that the Actus Reus of the charge has not been met by theCrown. [96] Section 13(1) states a blaster must make a blast log for a blast. Section 13(5) lists the information that must be included in ablast log. [97] Blast logs were completed for two blasts. Together they show a complete blast log for the two blasts.

The argument of theCrown, basically, is that the two blasts must be viewed as one blast and that the first blast, as it was a misfire, should contain theinformation that reflects it. This court has accepted that what occurred was not what BSR’s define as a misfire.

[ 98 ] The two blast records taken together factually comply with

section 13 of the BSR’s . This can be seen through Appendix “C” of the Defence brief. Consequently charge 15 fails. Conclusion [ 99 ] As I have found that the Crown has failed to prove the factual foundation of each count to the level of beyond a reasonable doubt, the charges against this corporate accused fails. Accordingly, I therefore acquit the accused. Paul B. Scovil, JPC