2010 QCCQ 12364, 2010 QCCQ 12364

Unofficial English Translation R. c. Gagné 2010 QCCQ 12364 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MINGAN "Criminal and Penal Division" No.: 652-01-007629-088 DATE: Sept-Îles, November 29, 2010 PRESIDED BY: THE HONOURABLE MICHEL DIONNE, J.C.Q. THE QUEEN Complainant v. SIMON GAGNÉ STEEVE LEMIEUX Accused JUDGMENT PER CURIAM Verdict in case number 7629-088 concerning Steeve Lemieux and Simon Gagné.

The defendants stand trial on four (4) counts, to wit: [ translation ] On or about October thirteenth (13th), two thousand and six (2006), at Port-Cartier, District of Mingan, did, through criminal negligence, cause the death of Denis Leclerc; Second count, on the same date [ translation ] At Port-Cartier, District of Mingan, did, through criminal negligence, cause bodily harm to D. L. ; Third count: [ translation ] Did cause bodily harm to G. B.; Fourth count: [ translation ] Did cause bodily harm to P. M.; Background.

In the morning of October thirteenth (13th), two thousand and six (2006), a railroad maintenance team was parked at Fox station. The maintenance team had work to do at Milepost 88. The team, which consisted of seven (7) workers, was divided between track unit of three (3) maintenance vehicles, the first of which was pushing eight (8) trailers or cars known as lorries. This maintenance group included Steeve Lemieux, Mathieu Côté, and Mario Lemieux, all three (3) of whom were equipment operators and repairmen.

The team also included Simon Gagné, the relief foreman, Denis Leclerc, the mobile equipment maintenance technician, and D. L., the electrodynamics technician. Four (4) of these individuals held a certificate of proficiency issued by the Québec Cartier Mining Company. To apply its railway operating rules, they were empowered to obtain all track occupancy permits and clearances required for their rail operation. In addition to the maintenance team, a team of two (2) patrol officers occupied a hi-rail vehicle that was also stopped at Fox with the intention of continuing its inspection north to Love station.

In addition to these two teams, the U-198 train coupled to cars loaded with logs was stopped at Howe, waiting to return to Port-Cartier.

The morning of October thirteenth (13th), two thousand and six (2006), Simon Gagné, the relief foreman, went to the Fox camp kitchen to meet with Alain Véronneau, patrolman, to determine which of the two (2) teams would head north first. After a discussion, they agreed that Alain Véronneau would leave first because his vehicle was lighter and could move more quickly. After this conversation, Mr. Véronneau continued to attend to his business.

At seven-fourteen in the morning (7:14 a.m.), Steeve Lemieux, the operator responsible for obtaining the permits for the track unit, obtained T.O.P. number 702 for Fox Siding. Steeve Lemieux took this opportunity to discuss the projected traffic on the track with the rail traffic controller, Éric Karl Douillard. He asked until what time he would be able to travel on the main track. The rail traffic controller answered, [ translation ] "I can give you till about eight-forty-five (8:45 a.m.) or nine o'clock (9:00 a.m.).

Steeve Lemieux answered that he would inform himself [ translation ] "and I'll get back to you, Éric. Thanks, buddy". At this very moment, Simon Gagné was exiting the camp with a few members of the maintenance team after his discussion with Alain Verronneau. He then proceeded with the preparation of the machines, a task that kept him busy for approximately one (1) hour. Noting that Mr. Véronneau had still not left the Fox camp, he went to see him again to remind him that they had agreed that Véronneau would leave first and that they would enter the track afterwards.

On his way to see Alain Véronneau, Simon Gagné took the opportunity to speak with Steeve Lemieux, saying, [ translation ] "I'm going to go see him at the camp", referring to Véronneau. When he came back to see Steeve Lemieux, he said, [ translation ] "Véronneau is going to leave first, and we'll follow him on the way up". He saw that Lemieux had taken his permit for the Fox siding. Simon Gagné went back to his vehicle, which happened to be the dining car. At that moment, Steeve Lemieux took his permit for the siding at the Fox station and the track unit pulled into the siding.

At seven forty-three (7:43 a.m.), Alain Véronneau obtained a permit for the main track from Fox station to the northern switch of the station, known as Fox North. At that moment, the maintenance team was on the Fox Siding, waiting for Alain Véronneau to begin heading north before entering the main track behind him. Once at the Fox North switch, Simon Gagné exited his car and dropped his portable radio to get to the switch... before getting to the switch. He waited there for Steeve Lemieux to confirm that he had obtained his permit and been authorized to throw open the Fox North switch.

Simon Gagné tired to contact Steeve Lemieux a few times, but his radio was no longer working. At a certain point, Steeve Lemieux signalled him to throw open the Fox North switch and that is when Simon Gagné assumed that Steeve Lemieux had his permit and had received authorization from the rail traffic controller Éric Karl Douillard, whom I will hereinafter refer to as EKD, to throw open the switch to enter the main track. After throwing the switch open, Simon Gagné returned to his car and asked Steeve Lemieux if everything was all right. Lemieux answered in the affirmative.

The unit pulled onto the main track at seven fifty-eight (7:58 a.m.). Mathieu Côté and Rénald Proulx, a trainer for the railway teams, were in the last car of the unit and were the ones to close the switch at eight o'clock (8:00 a.m.). As for Véronneau, at seven forty-eight (7:48 a.m.), he obtained a permit from the north switch of Fox station to Georges station and, at seven fifty-one (7:51 a.m.), cancelled the previous permit and headed north.

Véronneau arrived at Georges station, got... once at Georges station, he got a permit for the siding at eight fifteen (8:15 a.m.) and cancelled his permit to travel on the main track at eight sixteen (8:16 a.m.). During that period, at seven fifty-five (7:55 a.m.), P. M., conductor of locomotive 886, received authorization (Form

C) from the rail traffic controller to leave Howe Station and, at eight-fifteen (8:15 a.m.), he obtained the signal that the track was clear heading south. At the same time, the inspection patrol, headed by Alain Véronneau, arrived at Georges and obtained T.O.P. number 800 for Georges siding at eight fifteen (8:15 a.m.), thus freeing the main track for train 886. During the trip north, a few discussions took place between the maintenance team and the inspection patrol headed by Alain Véronneau, so that they could inform each other of their respective locations and thereby avoid any possible collision.

Also during this trip, Mathieu Côté asked Steeve Lemieux if the team had an occupancy permit for the main track. Lemieux answered in the affirmative. When they reached Milepost 88, Mario Lemieux asked Simon Gagné, the relief foreman, if the team would have the time to work. The question was referred to Steeve Lemieux, the operator to whom the permit had been issued. Just then, Alain Véronneau was at Georges station and overheard their radio conversation. He intervened to say that there were two (2) trains: one heading south and another waiting at Howe station.

He also stated that his own permit from the Fox North switch to Georges station was valid until eight thirty (8:30 a.m.) and that they did not have the time to do work on the track. Steeve Lemieux then spoke. He answered that he knew all this, adding that he had until eight forty-five (8:45 a.m.) to free the track. At that moment it was eight twenty-eight (8:28 a.m.) during the conversation between the maintenance ... between the track unit team and Alain Véronneau.

Train 886 passed Georges station at eight forty-two (8:42 a.m.), when Alain Véronneau and Jean Marie Poirier performed a visual and auditory inspection of the train, as required by the regulations. The conductor, P. M., receiving no indication from the patrol officers to the contrary, continued to head south with all of his lights on. After the train was inspected, Véronneau got a permit for between the north switch of Georges Station to Howe Station – at this point, it was eight forty-two (8:42 a.m.) – to go verify the north switch of Georges station, as required by the rail traffic controller.

At eight forty-four (8:44 a.m.), train 886 took the curve at Milepost 91, and that was when the conductor, P. M., saw the cars and lorries on the track. He applied the emergency brakes and hit the track unit head on. The locomotive derailed, crashing into the rock face. In the minutes that followed, emergency assistance was dispatched to the area. Four (4) persons sustained major injuries, and a fifth died of his injuries. The issue in dispute in this case.

It must be determined whether the breaches of the regulation, guideline number 12, when the accident took place on October thirteenth (13th), two thousand six (2006), arose from the breach of a duty or an obligation on the part of the defendants. And, if so, whether such breaches constitute criminal negligence as defined by

section 219 of the Criminal Code . The defendants do not contest the facts in this case in any way, having made more than thirty-six (36) admissions in this case, which are filed in the record under P-1. Among their admissions, the defendants acknowledge the impact of the accident on the victims. They admit the conclusions of the collision report prepared by Christian Tremblay, accident reconstructionist for the Sûreté du Québec, filed under ... it is admission 22 filed under P-31.

They recognize that the weather conditions – admissions 8, 9, 10 and 11 – the state of the track, the mechanical state of the cars involved, and the railroad signalling system in the area where the accident took place are not at issue. The defendants also admit that train 886 was conducted by P. M., who had all of the authorizations required to occupy the main track between Fox station and Georges station; that is admission 12. The defendants also admit having breached over twenty (20) rules and regulations of the Quebec Cartier Mining Company, as detailed in exhibit P-34.

The defendants also admit, according to a statement made by Steeve Lemieux to Sergeant Michel Comeau at Parthenais on July eighth (8th), two thousand and eight (2008), admitted as free and voluntary, that he entered the main track without having obtained the necessary permits: admission number 19, filed under P-24. As for Simon Gagné, in a statement given at Parthenais on July eighth (8th), two thousand and eight (2008), to Sergeant Patrick Gravel, which was admitted to be free and voluntary, he recognized that he entered the main track without having obtained the required permit: admission number 21.

The defendants, however, dispute the legal effects of the facts as established, arguing that, applied contextually, they do not lead to a finding of criminal negligence within the meaning of

section 219 of the Criminal Code with respect to the events that took place on October thirteenth (13th), two thousand and six (2006). The facts relevant to this case and especially the situation of the employees of QCM. The first witness heard by the Court was Jean Gauthier, rail traffic control foreman at the time of the incident, who was qualified as an expert witness with respect to the operation and regulations in place on the Quebec Cartier Railway at the time of the event. He testified that he has been working for the company for over thirty (30) years.

At the time of the events, he was the rail traffic control foreman in charge of statistics and training under Book A and Book D. Book A applies to the train team and is not relevant here. Book D applies to car repairmen and operators, which is relevant. On the morning of the thirteenth (13th), he was not at Port-Cartier. He was in Quebec City. He was called back to the company to listen to the audio recordings with Officer Blanchette and Officer Brochu of the Sûreté du Québec. He stated that he was involved in the internal investigation with the MTQ and the CSST to produce the relevant documents.

In his testimony, he described the radio system used on the track, stating that there was a base at each station, that each of the operators had a portable radio, and that each of the cars had a more powerful radio. The radio system comprises eight (8) channels and, on the track at issue here, the radio operated on channels 1, 2, 3 and 4. He stated that channel 1 is used between Mileposts 1 and 170, and channel 2 is used from 170 to the end of the track, which has a total length of two hundred and sixty (260) miles.

In the case before us, we are concerned with channel 1, since the accident occurred at Milepost 91.15. He adds that, generally speaking, permits are received through channel 1 and afterwards they are received on channel 4, and that communication on the track is generally good. He explains that the main track of the Quebec Cartier Railway contains two (2) ... eighteen (18) sidings, named alphabetically.

In the exhibit filed as P-16, he drew a sketch to describe the operations that were planned for the track unit involved in the accident of October thirteenth (13th), two thousand six (2006), at Fox station, which is the siding involved in this case. He states that it is equipped like all the other stations.

At the south end there is a power switch with double controls, activated by the rail traffic controller in Port- Cartier, and at the north end there is a spring switch, which is activated by one of the members of the track unit upon authorization from the rail traffic controller after the necessary permits have been issued. Regarding the necessary permits, he states that anyone wanting to enter a siding, at Fox South for example, has to stop and request a permit. Once the permit is granted, the track unit starts up and enters the siding.

When it wishes to leave, it must obtain a permit to leave the siding, at Fox North in this example. At that point, the rail traffic controller authorizes the opening of the north switch; another permit is issued and the Fox North permit is cancelled. He states that there can be no movement on the track without prior authorization through the issuing of a permit. He adds that, on October thirteenth (13th), two thousand and six (2006), Éric Karl Douillard was the rail traffic controller who was present and in charge of the traffic between Milepost 0 and Milepost 171.

Gauthier also testified about the training of the operators, describing it as follows. The training lasts three (3) days. Two and a half (2½) days are devoted to studying the operating rules and guideline number 12, which are filed as exhibit P-9. Gauthier states that both of these documents are given to each operator and, after the two and half (2½) days spent in class, they go to Able station for half a day to familiarize themselves with the issuing of permits and with the switches.

He notes that every three (3) years, permanent operators have to take a test consisting of sixty (60) questions about the application of the operating rules and guideline number 12. Temporary or seasonal operators are required to take the test on the operating rules and guideline number 12 if they have been away for over three (3) months. As for Simon Gagné and Steeve Lemieux, they had received the required training. Once operators pass the tests, they receive a card of proficiency that remains valid for three (3) years.

He adds that all on-duty operators must keep at hand a copy of the operating rules and guideline number 12, referring to general rule A, which reads as follows: [ translation ] Employees whose duties are set out in this regulation must have a copy of said regulation at hand while on duty. Employees required to take the guideline into consideration in the course of their work must have at hand a copy of the current guideline and its supplements, if any, when on duty. In his testimony, Gauthier also took some time to describe a T.O.P. It is a track occupancy permit, and it is referred to in

section 1007 of guideline number 12. [ translation ] No one is authorized to occupy the track without a track occupancy permit. He emphasizes that, where an occupancy permit exists, an automatic block appears on the rail traffic controller's computer system, thereby protecting the people with the track occupancy permit. He adds that, at seven fifty-seven (7:57 a.m.) in the morning of October thirteenth (13th), two thousand and six (2006), the Fox North switch was opened and no audio recording was traced because no permit was requested.

He points out that this opening of the switch triggered an alarm at the dispatcher's office in Port-Cartier, which he refers to as an "occupancy", and that the rail traffic controller did not take it into account because Alain Véronneau had entered the main track and had a valid permit until eight-thirty (8:30 a.m.). He maintains that this alarm was triggered when the track unit entered the track between the Fox North switch and Alain Véronneau's car, which was on the track.

Alain Véronneau's permit book, which establishes that he obtained a permit at Fox, Fox siding, Fox North, and Fox-Georges, is filed under P-7. It is interesting to note that Mr. Véronneau's book is not signed anywhere, but it appears that the company tolerates this way of doing things. Also filed under P-8 is the permit book of Steeve Lemieux, who was the track unit operator responsible for obtaining the permits on October thirteenth (13th), two thousand and six (2006). It indicates that he obtained a permit for the Fox siding – permit 702 – between seven fourteen (7:14 a.m.) and nine o'clock (9:00 a.m.). Mr.

Gauthier also states that, at the time of the events, the track unit was not properly built and that it was northbound. When cross- examined by counsel for Simon Gagné, however, Gauthier explained that there was no regulation governing the configuration of the track unit and that operators are not taught how to configure a unit. According to the evidence heard, the configuration of the track unit is based on the work that is planned. Mr. Gauthier also refers to

section 1019 of guideline number 12, which specifies the maximum speed of the vehicle operated by Véronneau – a hi-rail vehicle – to be forty (40) miles an hour and the maximum speed of the track unit to be fifteen (15) miles an hour. The following question therefore arises: How could the track unit have been travelling on Véronneau's permit? Cross-examined about the training, Mr.

Gauthier states that the follow-up for the practical training was performed by Gilles Duguay, adding that, after people were trained, they have...they had to do a follow-up but that he did not have the time...that he did not have the time and that he did not do it often enough. He adds that once a relief foreman is trained, he receives no subsequent training aside from refresher classes on guideline number 12 and the operating rules.

In his testimony, he adds that following the accident on October thirteenth (13th), two thousand and six (2006), the CSST [Quebec workmen's compensation commission] and the MTQ [Quebec ministry of transport] required them to modify some of their ways of operating, that a briefing form has been added (filed as D-1), which indicates that henceforth the person in charge of the permits must be determined, the procedures have all been followed, and that every person in the working group must sign the document entitled [ translation ] "briefing session".

The group is also required to name a lookout, and this must be recorded in the document. This person must ensure that the track is free and that the permits were properly obtained. The lookout must also sign the form. Mr. Gauthier adds that this has been made mandatory to improve safety. Cross-examined about what he was able to observe in exhibit P-8, Steeve Lemieux's permit book, he explains that Lemieux did not obtain a permit to enter the main track but that he entered it in his permit book; he supposes that he wrote it in advance, adding that perhaps Lemieux intended to request the permit.

When examined about the practices tolerated by the company, he confirms that it tolerates unsigned permit books like those of Alain Véronneau, Lemieux, and others. He also confirms that sometimes the guys forget to inform the rail traffic controller. For example, they leave the siding without closing their permit. He also confirms that employees sometimes travel on permits belonging to other people. In response to a question he was asked about the dearth of qualified personnel because of retirements, he stated that the company should

have foreseen the situation and that the training period should be extended. The second witness heard by the Court was Gilles Duguay, who was in charge of training in October of two thousand and six (2006). He maintains that he gave in-class training about the operating rules and guideline number 12. Once the in-class training was complete, the relief foreman in training was teamed up with an experienced foreman, whom he was required to shadow for eight (8) days to learn railway terminology and understand railway operation.

Once the apprenticeship was completed, the foreman in charge filled out a form and sent it to Mr. Duguay, who analyzed it to determine whether the candidate should return to class or whether, pursuant to the recommendations, he was fit to become a relief foreman. He states that before two thousand and six (2006), the process was less rigorous than they are now. Regarding the individuals involved in this case, he notes that Steeve Lemieux had already been on other work teams. Simon Gagné had been hired more recently.

He states that on the track, it is the "pike" operator who obtains the permit, adding that seniority usually prevails on the track. In the case before us, Steeve Lemieux was the most experienced and was therefore the one in charge of the track unit and of obtaining permits. As for Simon Gagné, his role was to verify whether the permits had been issued. He was responsible for ensuring that conditions were safe before they left the siding. Under cross-examination by counsel for Simon Gagné, Duguay confirms that there had been a lot of retirements in two thousand and six (2006). Mr.

Gagné did not receive any specific training before being appointed as a relief foreman but now, since the incident, relief foremen receive special training. Mr. Duguay also reports that the configuration of the track unit is determined by the tools used. The Court heard Rodrigue St-Julien, who was in charge of operator training in October of two thousand and six (2006).

He testified and confirmed what had already been stated to the effect that the operators receive three (3) days of training: two (2) in class studying the regulations and taking the theoretical exam, and a third on the track learning about how to obtain permits. St-Julien also points out that candidates for a position as relief foreman had to work for eighty (80) hours with a team and another eighty (80) hours under the supervision of a more experienced foreman. He stated that he received the apprenticeship reports so that he could analyze the comments.

He also had to listen to radio conversations, especially those involving new relief foremen, to determine whether they were making any mistakes. Regarding Gagné and Lemieux, he says that he has no particular comments. Regarding communication on the track, he points out that communication was generally good since they use fibre optics and that the track...and that repeaters have been installed on the track . He states that, on October thirteenth (13th), when the accident occurred, Éric Karl Douillard was the rail traffic controller. And, in accordance with procedure, he replaced...he replaced him immediately.

He adds that Simon Gagné and Steeve Lemieux never spoke on the radio and he did not know who was involved because they never identified themselves. During Mr. Duguay's testimony, exhibit P-34 was filed. It refers to more than twenty (20) rules that were breached by the defendants on October thirteenth (13th), two thousand and six (2006). Under cross-examination by counsel for Simon Gagné, Mr. Duguay confirms that the track unit used by Simon Gagné and Steeve Lemieux was an electrically isolated vehicle and therefore produced no signal on the track – in other words, no "occupancy".

He also states that the company was having personnel problems in two thousand and six (2006) and that individuals were being promoted more quickly than usual. To a question posed by counsel for Simon Gagné: [ translation ] "Had Simon Gagné received any special training?" he answered: [ translation ] "No." Question: [ translation ] "Did he know what his duties were?" Answer: [ translation ] "Obviously not." When asked whether Simon Gagné had asked him for special training to become a relief foreman, he first answered "no" only to answer "I don't know" subsequently.

Cross-examined on the awareness that drugs and alcohol were consumed on the line, Duguay answers that the company does not intervene because consumption occurs in their rooms, which are private. Regarding the defective rail brooms, which were non-existent on the cars that made up the track unit, Duguay offers no denial but answers that it was up to the relief foreman to ensure the safety and maintenance of the machines, pursuant to

section 1002 of guideline number 12. The Court also heard rail traffic controller Éric Karl Douillard. He states that on October thirteenth (13th), two thousand and six (2006), he began his shift around six-fifteen (6:15 a.m.) by exchaning information with the preceding shift. He states that radio communication is usually clear. There is good reception and, on the day of the incident, he was immediately relieved of his functions by Rodrigue St-Julien, in accordance with procedure.

He confirms that on October thirteenth (13th), the track unit was issued a permit so that it could travel on Fox Siding and that the only permits issued subsequently were to Alain Véronneau for Fox North...for Fox, North Fox, Georges. Referring to Form C, he confirms that the Uniforêt 886 train involved in the accident and conducted by P. M. had all of the permits and authorizations it needed to travel on the main track.

He explains that when a track occupancy permit is requested, like the one requested by Alain Véronneau or the one that should have been requested by the track unit, it automatically creates a block on the track to ensure the safety of the people travelling or working on

it. He also confirms that, at seven fifty-seven (7:57 a.m.), an "occupancy" appeared on his computer a few minutes after he issued the permit to Alain Véronneau. At the time, he believed that Véronneau had created this "occupancy" and he did not consider it necessary to investigate any further. Under cross-examination by counsel for Gagné, Douillard confirms that, as appears in P-12, Steeve Lemieux generally obtained the permits that he needed. When examined about whether the permits obtained by the operators are not always cancelled, he answers that he is not certain but that it is possible.

Alain Véronneau also testified. He was the conductor of the patrol behind which the track unit positioned itself and on whose permit the track unit allegedly travelled. On October thirteenth (13th), two thousand and six (2006), Véronneau was railway maintenance inspection foreman. His work consisted of checking for wear and tear of the switches and, in particular, verifying that they were operational. That day, he was operating a hi-rail vehicle with a wheel mechanism that permitted him to travel on the railroad. Around six o'clock (6:00 a.m.), he had breakfast at Fox camp with the members of the track unit.

He stated that the shift began at seven o'clock (7:00 a.m.) and that this was when he met the people from the track unit, Mario Lemieux, with whom he chit-chatted about this and that. He learned that the track unit had work to do at Milepost 88. Around seven o'clock (7:00 a.m.)... around seven o'clock (7:00 a.m.), he confirmed that Simon Gagné came to see him, telling him about a job that needed to be done at 88 and adding that Véronneau should leave before him if they didn't want to get in each other's way. They therefore agreed that Véronneau would leave first and that the track unit would follow.

At that point, the track unit was performing some manoeuvres on the siding. Véronneau proceeded to obtain his Fox, Fox North permit and went in front of the track unit, which was on the siding. He arrived at the Fox North switch, obtained a Fox North, Georges permit, and his Fox permit... Fox North permit was cancelled. He points out that he had agreed that if he had to stop, he would inform the track unit. All the way along the trip, they updated each other about their Mileposts to avoid a collision. He confirmed that there was never an agreement that the track unit team would travel on his permit.

Throughout the trip, Véronneau and the track unit informed each other of their mileposts. At eight fifteen (8:15 a.m.), Véronneau obtained a new permit for the Georges Siding and cancelled his Fox-North, Georges permit at eight sixteen (8:16 a.m.). It was then that, he states, he heard [ translation ] "Hello Simon Gagné! Hello Simon Gagné!" two (2) or three (3) times over the radio.

He also heard the guys from the track unit talking to each other: [ translation ] "Do we have time to do the work?" He spoke over the radio, informing Simon Gagné that he had until eight thirty (8:30 a.m.) to travel to Georges and that they surely did not have the time to work. According to Mr. Véronneau, Simon Gagné replied: [ translation ] "Yes, yes, Alain, I have until eight-forty five (8:45 a.m.)". He then told him about the track occupancy, the Uniforêt train, the ore train south, adding that he was clearing out at Georges.

At eight forty-two (8:42 a.m.), train 886 passed Georges Station and Véronneau did the work he was required to do and carried out a visual and auditory inspection of the train, waving to the conductor, P. M. All of the lights on the track were on, indicating that the track was clear for train 886. At that time, Véronneau was at Georges North and did not see whether the track unit had entered Georges South. At eight forty-four (8:44 a.m.), the collision between train 886 and the track unit occurred.

There followed a conversation between Véronneau and the rail traffic controller so that Véronneau could go to the scene. Once he had arrived at the scene, he met with P. M., the conductor of the locomotive, who said, [ translation ] "What did you do?" and explained that he had met Steeve Lemieux, who told him that he had gone through the light. He then accused Alain Véronneau, saying that the track unit was travelling on his permit. Véronneau states that, observing these facts, he went to Unit 703, known as the "pike", to obtain Steeve Lemieux's permit book.

He says that he saw that permit 702 had been issued for Fox siding and that a permit from Fox to Georges was entered but had not been authorized, as though the permit had been entered before having been obtained, adding that this was against the rules. Véronneau adds that Mario Lemieux told him, [ translation ] "Simon Gagné said that he had a permit until eight forty-five (8:45 a.m.), nine o'clock (9:00 a.m.). He also notes that a verification showed that the Fox Siding permit itself was not cancelled.

Under cross-examination, Alain Véronneau states that, at eight twenty-eight (8:28 a.m.), after he had called the team, which confirmed that it had a permit until eight forty-five (8:45 a.m.) and repeated the broadcast to him, he was no longer concerned. He believed that when the train passed at eight forty-two (8:42 a.m.), they were safe at Georges South. The Court also heard Mario Lemieux, the operator-dispatcher responsible for materials handling. He was the operator of the tamper that was following the track unit. He did not link... he was not linked to the track unit, which was operated by Steeve Lemieux.

At the time, he was in training on the said vehicle, and he adds that, when they left, Steeve Lemiex came to see him and told him that he was the one who would obtain the permits, given that he had more seniority. He confirms that on the track things worked according to seniority. It was therefore Steeve Lemieux who was responsible for obtaining the permits. He confirms that he was the one who asked if they would have time to work.

He states that when Alain Véronneau insisted that he has until eight-thirty (8:30 a.m.)... that he had until eight thirty (8:30 a.m.) to get to Georges and that Simon Gagné said that they had until eight forty-five (8:45 a.m.), he saw that they had a serious problem. He also confirms that the Fox North switch was closed by Mathieu Côté. He states that, after the accident, Steeve Lemieux exited unit 703 by breaking one of the car's windows, adding that Steeve Lemieux was very nervous at the time.

Steeve Lemieux then got on the train to find the other guys, while Mario Lemieux went to see the conductor, P. M, to whom he gave the names of the members of the track unit, giving him the name of Denis Leclerc last because he was P. M.'s brother-in-law. At that moment, Mario Lemieux was talking with Alain Véronneau about retrieving Steeve Lemieux's permit book. They broke the window of vehicle 703 to find Steeve Lemieux's book, which has been filed as P-8. Mario Lemieux remarked, [ translation ] "He entered his permit, but he never asked for it from the rail traffic controller". He then gave exhibit P-8 to Véronneau, and over the following weeks took

part in the MTQ and CSST investigations, as well as QCM’s internal investigation. After the incident of October thirteenth (13th), two thousand and six (2006), he was sanctioned by one (1) month’s suspension for failing to check whether Gagné and Lemieux had obtained their permits in compliance with the regulations. Under cross-examination by counsel for Simon Gagné, Mario Lemieux stated that he heard Simon Gagné say over the radio, [ translation ] "We'll go through on Véronneau's permit".

And to the following question, [ translation ] "Is it possible that he said we're going to follow Véronneau on our way up?" he answered, [ translation ] "Yes, we heard that we would clear at Georges on Véronneau's permit". But later in his testimony, Lemieux threw his own statement into doubt, saying, [ translation ] "then we would be four (4) machines if he was on Véronneau's permit. Mathieu Côté had to close his permit, which he never did”. P.

M., the conductor of locomotive 886, testifies that when he went to Georges South, the free track signal was visible and he continued on his way because the two (2) inspectors, Véronneau and Poirier, who were on the side of the track, indicated to him that no abnormality had been observed on the train. He states that when they arrived at Milepost 91.12, he saw two (2) push-cars on the track. He saw the dining car. He applied the emergency brake as he said to his colleague, [ translation ] "People are going to get killed".

As he got out after the impact, he saw the defendant Steeve Lemieux, who came over to him and said, [ translation ] "What are you doing here?" M. answered, [ translation ] "No you, what are you doing here?" A little later, he met Mario Lemieux and asked him, [ translation ] "Do you have a permit?" Lemieux answered, [ translation ] "Yes, we're on Véronneau's permit.” M. answered, [ translation ] "That can't be." That was when Alain Véronneau arrived. He seemed very distraught by the situation.

M. was not very happy and spoke to Véronneau. [ translation ] "They're on your permit.You killed my brother-in-law." Véronneau answered, [ translation ] "I have my permit. I didn't know they were there", adding, "P., they're not on my permit." The final witness for the prosecution is Jocelyn Bilodeau, who was the director of railway maintenance and operations in two thousand and six (2006). He testifies that, in the spring of two thousand and six (2006), he met with the foremen, the relief foremen, and the candidates for the position of relief foremen; Pascal Larouche and Simon Gagné, in particular, were present.

During this meeting, he discussed, among other things, the jobs that needed to be done and the schedules, while emphasizing health and safety, company values, and rigour. Every person was asked to provide their own definition of rigour. Simon Gagné was present and took

part in this meeting, which lasted two (2) days. When cross-examined by counsel for Steeve Lemieux regarding the fact that the company has raised its standards for the training of its relief foremen since the accident, Bilodeau did not answer directly, stating that they used an apprenticeship, while the two (2) preceding witnesses, Jean Gauthier and Gilles Duguay, who are in charge of training, stated the opposite. The defence called Simon Gagné, who explains that he began with QCM in nineteen ninety-seven (1997).

He became a unionized employee in ninety-eight ('98), and he never received any sort of reprimand whatsoever. In October of two thousand and six (2006), he was relief foreman and had received no special training. He testifies that before accepting the position of relief foreman, he asked for training, which he never received. He testifies that, before going out on the morning of October thirteenth (13th), he spoke with everyone and in particular with Alain Véronneau, and they decided that Véronneau would leave before him. And there was no discussion of a permit with Véronneau.

He testifies that the obligation to obtain the permit belonged to Steeve Lemieux, who was the operator, and that on the morning of October thirteenth (13th), there was no ambiguity about who was getting the permit. He therefore went to vehicle 703 so that Lemieux could obtain the permit. He then told Steeve Lemieux to wait, that he would go to see Alain Véronneau at the camp, adding, [ translation ] "after, we'll follow him".

Gagné confirms that he knew of the obligation to obtain a main track permit and authorization to throw open the Fox North switch (obtained at the same time as the permit), and that both authorizations and permit must be communicated to the others. He testifies that he was in the dining car throughout the trip. When he got out, he dropped his mobile radio, the mobile radio that he had, and he went to the north switch... Fox North, waiting for Steeve Lemieux to confirm that he had received authorization to throw open the switch.

After waiting for a few minutes, he tried to communicate with Steeve Lemieux, but noticed that his radio was neither receiving nor sending. Later, he saw Steeve Lemieux signalling to him. He then proceeded to throw open the Fox North switch, believing that Lemieux had the necessary permits and authorizations. Returning to his vehicle, the dining car, Gagné asked Steeve Lemieux if everything was all right, and Lemieux answered in the affirmative.

In the view of Simon Gagné, the track unit was leaving Fox and heading onto the Georges siding to let the train go by and then returning to the 88 and doing the work it was supposed to do. He states that it is the person obtaining the permit who reads the permit aloud to the others, that they had a permit, and that on October thirteenth (13th), two thousand and six (2006), Steeve Lemieux did not fulfil this obligation. The evidence reveals that it was not also required of the other three (3) qualified individuals in this track unit.

He testifies that the first time he heard Steeve Lemieux mention that he was travelling on Steeve’s permit... on Alain Véronneau's permit was after the accident. For his part, Simon Gagné had never come to an agreement with Véronneau to travel on his permit. Under cross-examination by Mtre Bérubé, he acknowledges that he participated in a two (2)-day information session in April of two thousand and six (2006), which was led by Bilodeau. He also acknowledges that during the performance of his work, he saw foremen working and carrying out various activities on the track.

He states, however, that he did not have the knowledge required to do the work of a relief foreman and that he had asked the company for specific training on several occasions, but that it never happened. He confirms that he underwent training for eight (8) days under the supervision of Pascal Larouche and that he was in his third eight (8)- day week as relief foreman. On October thirteenth (13th), he had familiarized himself with the train

schedule for the day and knew that they were short on time to get to Georges and that it would be impossible to do the work. Asked about his duties, he in no way denies those incumbent upon him. He also does not deny that he knew the rules, but he states that he felt that he did not have the training necessary to be relief foreman and that the week of October thirteenth (13th) was the last week that he would be acting in this capacity. He emphasizes that things worked according to seniority on the railway.

Steeve Lemieux had pulled seniority by relieving Mario Lemieux as the operator of equipment 703 and stating that he was the one who would obtain the permits because he had more seniority. During Gagné's interrogation at Parthenais on July eighth (8th), two thousand and eight (2008) by Officer...by Sergeant Patrick Hamel, filed as exhibit P-21, which has been acknowledged as being free and voluntary, Gagné provided the following explanations about seniority: [ translation ] You have the right to manage. I could say, “you, go here, you, go there, and you, you’re over there”, but see, it doesn't work like that.

And with seniority they say: “ok, well I'm going here, and I'm going there’. Ultimately, I couldn't have said: go there, but even with the right to manage, I couldn't have said it. As for the powers of a relief foreman, Gagné stated the following during this interrogation. [ translation ] Q.: But you still do have that right? A.: I think so. From what I know, from what I've worked, as I told you, where my powers began and where they ended. Q.: It's a grey area? A.: Yeah!

During the same interrogation, Simon Gagné stated that he had confidence in his guys and that a climate of trust prevailed, but at eight minutes after eleven (11:08 a.m.) he added: [ translation ] Look, I was there too, I'm not going to start crying and say it's all their fault. Look, I was there, I could have asked the question. I didn't do it, goddammit! I thought it was okay. And then bang, goddammit, we got hit by a train. I took it for granted that we had a permit. Jesus, I would never, ever have entered the track without a permit.

Look, if I had been the operator that morning, I never would have... it never would have happened. It sucks, but that's the way it is. I wasn't the operator, and I trusted my guys. And that's what happened. And so I say: I trust my guys but look, me too, I could have used the CB to be sure, it's okay guys, make sure, I didn't do it. See, it's my responsibility too. At eleven thirteen (11:13 a.m.), Gagné added: [ translation ] That morning, if I had, look, like every goddamn morning, and asked them, I didn't do it, and it happened. Q.: That morning: do you know why you didn't do it? A.: I trusted my guys.

Look, he signalled me, throw the switch...if he signals me to throw the switch, I tell myself, look, everything's fine. Look, I had papers, okay, and I didn’t really know how it worked. Look, to me, permits, it was my guys who took care of that, 100% trust in them. We get a permit and let’s go, I have other things to think about.

Exactly, if I had had a bit more training, maybe I would have had something else in my head that morning. We took off, we were on our way, it was all good, throw the switch, let's go, and I was the one who threw the switch, nobody else did it. I threw the switch and we didn't have a permit. At twenty minutes after noon (12:20 p.m.), as Simon Gagné was being interrogated about his familiarity with the permits, he was asked the following question: [ translation ] Q.: You knew those rules, enough to manage a team? A.: Yes, I knew the rules.

At twelve fifty-five (12:55 p.m.), when asked another question, Simon Gagné answered: [ translation ] Q.: Exactly when did you find out that there was no permit? Did you find out before it happened or after? A.: I found out after. At twelve fifty-nine (12:59 p.m.), Simon Gagné was asked another question about his responsibility: [ translation ] Q.: You understand that you have some responsibility in all of this? A.: Yes. When interrogated on his alcohol and drug consumption on the night of October twelfth (12th) to the thirteenth (13th), two thousand and six (2006), Simon Gagné did not deny having consumed drugs.

His last consumption was at two o'clock (2:00 a.m.) or three o'clock (3:00) in the morning of October thirteenth (13th), when he got up during the night. He claims that he smoked a cannabis joint but maintains that he was fine the next day. This was confirmed by Alain Véronneau in his testimony, which appears on page 27 of 142 of the exhibit filed as D-7, where he confirmed that Simon Gagné was in fine form the morning of October thirteenth (13th), two thousand and six (2006).

As for Steeve Lemieux, he did not testify during his trial but was interrogated at length at Parthenais by Sergeant Michel Cerneau on July eighth (8th), two thousand and eight (2008). At three forty-seven (3:47 p.m.), he stated: [ translation ] About the permit story, it's hard to understand. In my heart of hearts, I know it and Simon knows it. I would never, ever have entered the track without a permit. I was on the other guy's permit, and I'm going to die knowing that. Even if I'm accused of fifty-six (56) things, that guy must find it hard to sleep at night. He's good for nothing.

At three forty-nine (3:49 p.m.), he stated: [ translation ] It was the second time in ten years that I got on someone else's permit. I'm the guy who’s really strict about that. I wanted nothing to do with it, and then see, that morning. In response to a question put by Michel Comeau: [ translation ] Q.: But you were the operator and that day it was established that you would be the one in charge of asking for the permits and you didn't ask for a permit? A. I couldn't, because we were just waiting for the guy who left with what we call the patrol. And I followed him after that.

At three fifty-five (3:55 p.m.): [ translation ] Q.: Who was responsible for that track unit? A.: Well me and Simon. Q.: Simon being the foreman and you on the permits? A.: That's right. Regarding his failure to cancel his permit for the siding, at four ten (4:10 p.m.) Lemieux stated:

[ translation ] Q: You have to be careful, Steeve. They're blaming you... you have to be careful, Steeve. They're blaming you for not closing your T.O.P.for the siding. Why didn't you close it? A.: Ah, no, that, that closes on its own, there's no problem there. It's just that I didn't cancel my siding, I just forgot. When you get on someone else's permit, you hurry up. We had about ten or fifteen miles to go.

They never made a big deal out of those things, you call a bit later, sorry, I forgot my siding, or the rail traffic controller calls you and asks you if you're still on the siding, yeah, sorry, let's cancel that. See, it's that simple. Regarding the consumption of drugs at Camp Fox, Steeve Lemieux confirms that he did indeed smoke cannabis the night before from eight (8)... the night before between nine o'clock (9:00 p.m.) and ten o'clock (10:00 p.m.) before going to bed.

Lemieux answered questions about the errors committed on the day of October thirteenth (13th) as follows: [ translation ] Q.: I don’t think I’m wrong in saying that on that day, because you're a perfectionist, you made a series of errors and you are taking the blame for Denis's death because of that. A.: It's a bunch of things, for sure, look, I will always have that on my conscience. I'm a guy who... Some people don't care about those kinds of things but I'm really aware that there was negligence... there was negligence and there were breaches.

Look, if there hadn't been, there wouldn't have been any deaths, and look, I'm really aware of that, man. Q.: You were a trainer, you were good. How come you let yourself make these mistakes, Steeve? A.: Because we had to haul ass. Because if we didn't, the work wouldn't get done again. We hadn't gone out for two days because the trains were going by and we couldn't work because our job is complicated, we have to block the railway for a couple of hours, you know what I mean. And Simon, for Chrissakes, he was just a relief foreman. Usually you have a real foreman with the relief foreman.

The company didn't do that. There are little things they didn't tell you. When Simon threw the fucking switch, I signalled him: it's good, let's go, we're on our way, you know. Simon thought that I had a permit, and I though that Simon had made an agreement with Véronneau at the restaurant to follow him. It's totally unbelievable. With respect to his belief that he was travelling on Véronneau's permit, Steeve Lemieux added: [ translation ] Q.: Where were you? What kilometre were you at when he said he had closed his permit? .

R.: God, eighty, it's hard to say, maybe 89-88, but don't quote me on that, look, it's complicated. Q.: And what happened in your mind at that moment? That you had to get in as fast as possible!!! A.: Well, you take off, that's all. What happened in my head is nothing happened. Only when he told me he was at the switches, I said I hope he kept his permit because we know that he's good for nothing, that's when I had a doubt. And goddammit, two minutes later, it went bang.

Regarding the breach of the Quebec Cartier Mining Company rules, on October thirteenth (13th), two thousand and six (2006), the evidence heard reveals that the defendants Gagné and Lemieux breached over twenty (20) rules in the operating rules and guideline number 12. Without reproducing them all, I will refer to the most important ones.

Section 1007 states, and this is not contested by the defendants, that: [ translation ] Any vehicle operation will be carried out under the protection of a track occupancy permit.

Section 1012 states: [ translation ] It is prohibited to push lorries carrying rails, dangerous material, or explosives, as well as lorries with cargo hampering the operator's visibility, unless these lorries are preceded by a push car with rail brooms and there is an employee on board qualified to guide the

operator with a radio. The evidence has shown that in the track unit, two (2) lorries preceded the push car in which the victim, Mr. Leclerc, and another member of the team, Daniel D. L., were riding, that Mr Leclerc was sleeping, and that at no time did D. L. use his radio to communicate with or guide the operator .

Section 1013 states: [ translation ] Push-cars should not be pushed with a vehicle unless they have rail broom devices and there is an employee on board who is qualified to guide the operator over the radio. The evidence has revealed, however, that the vehicle had a damaged rail broom and, as I noted earlier, with respect to

section 1012, no qualified employee was guiding the operator over the radio. As for

section 1071: [ translation] Every movement of the vehicle must be protected by the rail traffic controller by issuing a track occupancy permit authorizing the operator to proceed from one designated location to another for a defined period of time. This T.O.P. must be entered into the A.T.D.S. system to block the district signals at stop and the rail traffic controller must verify that the signal blocking is operational before the T.O.P. is approved. In this case, no T.O.P. was requested by the defendants.

The same provision states: [ translation ] The information received concerning a track unit's T.O.P. must be written on the T.O.P. form at the very moment the rail traffic controller issues them. The evidence adduced through Alain Véronneau's testimony reveals that the QCM tolerated that permits were completed while travelling on the track. As for

section 1074, which requires the reading out of the T.O.P., which is perhaps the most significant breach in this case, because if it had been respected by both the operator, Steeve Lemieux, and by Simon Gagné and the other occupants of the vehicle, the accident would have been avoided.

Section 1074 reads as follows: [ translation ] Track unit operators shall read aloud, to all the other occupants of the track unit, the content of all TOPs received, and they must understand the track and time limits granted. If necessary, the occupants of the track unit shall remind the vehicle operators of the TOPs, their track limits, and their time limits. There was also a breach of

section 1080, which requires the cancellation of permits when the vehicle leaves the area regarding which the permit was issued. In particular, in this case, Steeve Lemieux never cancelled the TOP for Fox Siding.

Section 1080 states that when a vehicle operator has a TOP for a siding and obtains a new TOP for the main track, the TOP for the siding must be cancelled immediately, as soon as he enters the main track. There was also a breach of

section 1081, since Steeve Lemieux believed that he was travelling on Alain Véronneau's permit. This situation meant that their team consisted of more than three (3) vehicles and, consequently, a TOP on the front unit and on the rear unit had to be obtained, which was obviously not done in this case. These breaches all appear in exhibit P-34, over twenty (20) breaches of the rules and regulations that led to the accident that occurred on October thirteenth (13th), two thousand and six (2006). Analysis of this case.

Section 219 Criminal Code states the following: 219.

(1) Every one is criminally negligent who (

a) in doing anything, or (

b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, "duty" means a duty imposed by law. Without ruling out that there was negligence, at least in terms of civil liability, the defendants maintain that it has not been proved that there was negligence... that there was wanton or reckless disregard for the lives or safety of other persons. They do not contest the numerous breaches of the rules and regulations. They argue, however, that in light of all of the circumstances their conduct is devoid of the mental element required by the offence of criminal negligence.

The prosecution refers the Court to [should read: R. v. Beatty, 2008 SCC 5 and R. v. Tutton, (SCC), [1989] 1 S.C.R.1392 at 1430] regarding the constituent elements of criminal negligence. It points out that, on October thirteenth (13th), two thousand and six (2006), the defendants took no reasonable measures to obtain thenecessary permits and communicate them to the other participants and entered the track with wanton or reckless disregard.

It argues thatthe many rules known to the defendants had one objective only, the safe... to ensure the safety of all those working on Q.C.M.'s maintrack and that, on October thirteenth (13th), two thousand and six (2006), the defendants did not conduct themselves as reasonablepersons in the circumstances. In the Criminal Code, each offence contains a material element known as the actus reus, that is, an action or an omission of an action,and a mental element referred to as the mens rea, which can take one of two (2) forms, either intent or recklessness.

Criminal negligenceis an offence based on the fault of recklessness as opposed to an intent to commit an offence. A person intends to commit an offencewhen he or she acts deliberately, for the conscious purpose of causing an event or with foresight that an event will certainly or nearlycertainly occur as a result of his or her action or omission of an action. In this case, it cannot be argued that the defendants acted knowingly so that train 886 would crash into the track unit or that they hopedfor the tragic results that occurred in the circumstances. The defendants’ fault is of another order.

The defendants' intent, what they knew or did not know, does not come into consideration. In criminal negligence matters, criminal faultis based on the failure to direct the mind to a risk which the reasonable person would have appreciated.

Section 219 of the Criminal Code sanctions a particular type of behaviour. Negligence is the opposite of a considered action and,therefore, excludes any positive intent to achieve a given result. In Beatty, the Supreme Court of Canada was asked to consider this issue and reformulate the test, previously set out in Hundal, regardingthe two (2) constituent elements of the offence of criminal negligence. Charron J. stated the following, at para. 43. (

a) The Actus Reus The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section,driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use ofthe place at which teh motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to beat that place". (

b) The Mens Rea The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied bythe required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, includingevidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care thata reasonable person would observe in the accused’s circumstances.

Moreover, if an explanation is offered by the accused, then in orderto convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and ofthe danger involved in the conduct manifested by the accused. Later on, at paragraph 45, regarding the determination of the actus reus, Charron J. elaborates: The offence is defined by the words of the legislative provision, not by the common law standard for civil negligence. In order todetermine the actus reus, the conduct must therefore be measured as against the wording of s. 249.

Although the offence is negligence-based, this is an important distinction. As we have seen, conduct that constitutes dangerous operation of a motor vehicle as defined unders. 249 will necessarily fall below the standard expected of a reasonably prudent driver. The converse however is not necessarily true –not all negligent driving will constitute dangerous operation of a motor vehicle.

If the court is satisfied beyond a reasonable doubt thatthe manner of driving was dangerous to the public within the meaning of s. 249, the actus reus of the offence has been made out.Nothing is gained by adding to the words of s. 249 at this stage of the analysis. » Again in Beatty, a case dealing with dangerous driving, Charron J. adds the following at paragraph [should read: 47] regarding thedetermination of the mens rea: In determining the question of mens rea, the court should consider the totality of the evidence, including evidence, if any, about theaccused's actual state of mind.

As discussed at length above, the mens rea requirement for the offence of dangerous driving will besatisfied by applying a modified objective test. This means that, unlike offences that can only be committed if the accused possesses asubjective form of mens rea, it is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent,recklessness or wilful blindness. Of course, this does not mean that the actual state of mind of the accused is irrelevant.

For example, if proof is made that a driver purposely drove into the path of an oncoming vehicle in an intentionally dangerous mannerfor the purpose of scaring the passengers of that vehicle or impressing someone in his own vehicle with his bravado the requirement ofmens rea will easily be met. One way of looking at it is to say that the subjective mens rea of intentionally creating a danger for otherusers of the highway within the meaning of s. 249 of the Criminal Code constitutes a "marked departure" from the standard expectedfrom a reasonably prudent driver.

At paragraph 49, she adds: If the conduct does not constitute a marked departure from the standard expected of a reasonably prudent driver, there is no need topursue the analysis. The offence will not have been made out. If, on the other hand, the trier of fact is convinced beyond a reasonable

doubt that the objectively dangerous conduct constitutes a marked departure from the norm, the trier of fact must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the accused's position would have been aware of the risk created by this conduct. If there is no such evidence, the court may convict the accused. In addition, in paragraph 8 of Beatty , Charron J. states that the analysis is therefore contextual and allowances are made for the defences such as incapacity and error of fact.

Also in Beatty , at paragraph 48 , Charron J. notes the followng elements with respect to subjective mens rea : In the case of negligence-based offences such as this one, doing the proscribed act with the absence of the appropriate mental state of care may instead suffice to constitute the requisite fault. The presence of objective mens rea is determined by assessing the dangerous conduct as against the standard expected of a reasonably prudent driver. If the dangerous conduct constitutes a "marked departure" from that norm, the offence will be made out.

As stated earlier, what constitutes a "marked departure" from the standard expected of a reasonably prudent driver is a matter of degree. Therefore, we must consider the context created by the offence of criminal negligence, which requires that wanton or reckless disregard for the lives or sa... which requires wanton or reckless disregard for the lives or safety of other people. In this respect, abundant case law reviewed by the Supreme Court of Canada in R. v.

J.F ., [should read: 2008 SCC 60 ], states that criminal negligence constitutes a more serious offence than dangerous driving, signifying more blameworthy conduct. Therefore, the marked departure from the norm must be even more significant. Application to this case in respect to the material element, the actus reus . In Beatty , Charron J. indicated that we must consider first the wording of the legislative provision invoked in support of the charge and then assess the cha...the alleged action or omission in light of this provision. Did Steeve Lemieux and Simon Gagné commit the actus reus of the offence?

Did they show wanton or reckless disregard for the lives or safety of other people by doing or omitting to do something that it was their duty to do, in light of the circumstances, including the reasonably foreseeable nature and state of the area in this location?

The evidence shows that Simon Gagné and Steeve Lemieux had been working for QCM for nearly eleven (11) years; that they were familiar with the rail operating rules governing the railway on which they were working on the morning of October thirteenth (13th), two thousand and six (2006); that they had always obtained their permits; and that they had never been reprimanded.

The evidence also establishes that, on the morning of October thirteenth (13th), two thousand and six (2006), they were aware of the traffic on this track, but they failed to obtain the necessary permits and they failed to communicate with the other members of the team, who did the same thing, which meant that the rail traffic controller Éric Karl Douillard gave the green light to train 886 at eight forty-two (8:42 a.m.). The collision took place at eight forty-four (8:44 a.m.).

Considered objectively, this situation, in light of the circumstances, created an excessively dangerous situation for themselves and for the other persons travelling on the railway on October thirteenth (13th), two thousand and six (2006). We must now move on to the second stage of the analysis and determine whether the mental element, or mens rea , as set out in

section 219 Cr. C . has been made out. The provision requires that they showed wanton or reckless disregard for the lives or safety of other people. Regarding the mens rea , it must first be determined whether the conduct of the defendants in the circumstances constituted a marked and significant departure from the norm that a reasonably prudent person in the same circumstances would have respected. Is there any evidence here of a deliberate intent to create a danger for other users of the railway that would justify answering that question in the affirmative? The Court does not think so.

Rather, the evidence has shown that the event on October thirteenth (13th), two thousand and six (2006), can be attributed to an error of fact, which itself arose due to the corporate culture of tolerance in two thousand and six (2006), which included insufficient training, uncancelled permits, travelling on a track under another's permit, permits completed while travelling on the track, control of the track on the basis of seniority, drug consumption, and uninvestigated occupancy.

In fact, and this is not contested, Steeve Lemieux believed that Simon Gagné had come to an agreement with Alain Véronneau that he would travel on the latter’s permit. As for Simon Gagné, he believed that Steeve Lemieux obtained his permit to travel on the main track. This belief was reinforced by the fact that he had noticed that Steeve Lemieux had obtained his permit for the Fox Siding.

Moreover, he believed that, when a problem with the radi...when he had a problem with the radio, while he was waiting at the switch, Steeve Lemieux obtained permission to throw open the switch; when he yelled out to him signalling him to open it. In Gagné’s view, this is also reinforced by the fact that, when he asked Steeve Lemieux if everything was all right, Lemieux answered in the affirmative. At that moment, Lemieux believed was that he was travelling on Véronneau’s permit, and Gagné believed that they had a permit and that it created a block on the track.

The evidence reveals that they became aware of their mistake at Milepost 88, when they received the call from Alain Véronneau. But by that point, it was too late; the train was already upon them. And as Charron J. noted in Beatty : However, because the accused’s mental state is relevant in a criminal setting, the objective test must be modified to give the accused the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger.

On these occasions, even when the manner of driving viewed objectively will clearly be dangerous, the accused cannot be convicted. Consequently, the evidence as a whole that was... consequently, based on the evidence as a whole that was brought before it, the Court concludes that it is justified in having a reasonable doubt that a person placed in the same... in the same situation as the accused would

have been aware of the risk caused by the conduct. And consequently, the Court finds that all of the elements of criminal negligence within the meaning of

section 219 of the Criminal Code have not been made out beyond a reasonable doubt. And consequently, Steeve Lemieux and Simon Gagné are acquitted of all charges against them in this case. MICHEL DIONNE, J.C.Q. Mtre MARC BÉRUBÉ For the complainant Mtre HUBERT BESNIER Mtre CH-HENRY DESROSIERS For the accused Date of hearing: November 29, 2010