R. v. McCarthy’s Roofing Limited, 2016 NSPC 21

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. McCarthy’s Roofing Limited , 2016 NSPC 21 Date: March 31, 2016 Docket: 2854099, 2854100, 2854101, 2854102 Registry: Halifax Between: Her Majesty the Queen v. McCarthy’s Roofing Limited Decision on Application for Particulars Judge: The Honourable Judge Anne S. Derrick Heard: March 10, 2016 Decision: March 31, 2016 Charges: Section 74(1)(

a) of the Occupational Health and Safety Act, R.S.N.S. 1996, C. 7 x 4 Counsel: Alex Keaveny, for the Crown Brad Proctor, for the Defendant By the Court: Introduction [ 1 ] This decision deals with an application for particulars in a prosecution against McCarthy’s Roofing (“McCarthy’s”) for offences under the Occupational Health and Safety Act, R.S.N.S. 1996, C.7 (“ OHSA ”). McCarthy’s was charged following a Department of Labour investigation into a very serious accident at a construction site on September 9, 2013. [ 2 ] McCarthy’s seeks an order for particulars pursuant to section 587(1) (

f) of the Criminal Code in relation to two of the four charges it faces, Counts 1 and 2 of the Information. McCarthy’s argues that particulars are essential for it to make a full answer and defence to these “general duty” charges. [ 3 ] The Crown says everything McCarthy’s needs for full answer and defence is in the disclosure. The Crown also says there is a vein of coherence that runs through all four charges in the Information: Counts 3 and 4 talk about the same hazards that are targeted by the “general duty” charges.

The “General Duty” Charges [ 4 ] The two “general duty” offences with which McCarthy’s has been charged state that between September 6 and September 9, 2013, McCarthy’s Count 1 Did as a Constructor, fail to take every reasonable precaution to ensure the health and safety of a person at a workplace pursuant to

section 15(

a) of the Occupational Health and Safety Act , thereby committing an offence contrary to subsection 74(1)(

a) of the Occupational Health and Safety Act, R.S.N.S. 1996 C.7 as amended; And furthermore,

Count 2 Did as a Constructor, fail to ensure communication between the employers and self-employed persons at the project of informationnecessary to the health and safety of persons at the project pursuant to

section 15 (

c) of the Occupational Health and Safety Act, therebycommitting an offence contrary to section 74(1)(

a) of the Occupational Health and Safety Act, R.S.N.S. 1996 C.7 as amended. [5] Counts 1 and 2 track the language of the legislation: subsection 15(

a) of the OHSA provides that “Every constructor shall takeevery precaution that is reasonable in the circumstances to ensure the health and safety of persons at or near a project” and subsection15(

c) mandates that constructors take every reasonable precaution in the circumstances “to ensure communication between employersand self-employed persons at the project of information necessary to the health and safety of persons at the project…” [6] McCarthy’s describes Counts 1 and 2 as a “rearranged cut and paste” of the legislative provisions. McCarthy’s submits that inorder for it to understand the case it must meet, the charges in relation to

section 15 of the OHSA need to be particularized beyond thegeneric language of the statute. Particulars – An Overview [7] The 1974 decision of the Ontario High Court of Justice in R. v. Canadian General Electric Co. is often referred to for itsdescription of the two-fold function of particulars: ensuring the ability to make full answer and defence and facilitating the administrationof justice. (R. v. Canadian General Electric Co., [1974] O.J.

No. 13 (H.C.J.), paragraph 35) The Court held that: “Particulars are duewhenever justice would be imperiled if particulars are withheld.” (paragraph 33) [8] Ordering particulars has implications for the prosecution of the case. Particulars form part of the indictment and like the otherelements of the indictment, must be proven beyond a reasonable doubt. (R. v. Saunders, (SCC), [1990] S.C.J. No. 22,paragraphs 5 and 6; R. v. Dalton, (NL SC), [1999] N.J. No. 388, paragraph 11 (Nfld. S.C.)) An order for particularsnecessarily leads to constraints on the Crown’s conduct of its case.

The Crown’s Case according to the Disclosure [9] The Crown’s Brief dated February 11, 2016 provides a sampling of the disclosure which I reviewed with McCarthy’s consent toobtain an understanding of the intended prosecution. (This is how the particulars applications were proceeded with in R. v. Clarke,[2014] N.S.J. No. 242 (S.C.), paragraph 41 and R. v. R.D. Longard Services Limited, [2014] N.S.J. No. 646 (P.C.), paragraph 10) [10] The facts to be alleged were also referenced by Mr. Proctor in his oral submissions.

It is important to note at this stage of theproceedings that McCarthy’s is not admitting to any facts and no facts have been proven. [11] On September 9, 2013, Christopher Conrod was severely injured on a construction site at Dalhousie University (“Dalhousie”).When Mr. Conrod activated power to a swing stage suspended platform a metal outrigger fell on him. (Crown Brief, page 5) [12] Various companies were under contract with Dalhousie for the construction project, including the company Mr. Conrod workedfor, Economy Glass.

Aecon Construction was awarded the contract for Construction Management Services. (Crown brief, Tab 2, page 2) [13] McCarthy’s Roofing was contracted by Dalhousie to do the roofing. Northfield Glass Ltd., operating as Economy Glass, had thewindow installation contract. Flynn Canada Ltd. (“Flynn”) had the contract for installing the siding. To do its work, Flynn rented a swingstage. Economy Glass used the swing stage when Flynn was not using it. [14] The swing stage was suspended by wire ropes strung from metal out-riggers that extended out from a parapet wall on the roof ofthe building being constructed.

The outriggers were held in place by counter weights and wire ropes attached to tie-back safety anchorsmounted on the roof. (Crown Brief, page 4 and Tab 4A, Photographs 0664, 0665, 0668, 0673, 0676, 0677) [15] McCarthy’s roofing work required the swing stage to be dismantled.

They had requested through Aecon to have the swing stageand its related components disassembled so they could undertake roofing work on the building. (Crown Brief, page 4) Aecon askedFlynn to dismantle the stage and move it. [16] When McCarthy’s arrived at the site on September 7, they discovered that the disassembling of the swing stage had not been done.The swing stage and the outriggers were still in place. McCarthy’s went ahead and dismantled the equipment and proceeded with theroofing work.

Once finished, McCarthy’s did not re-assemble the swing stage and left it in a disconnected state. (Crown brief, page 5;Photographs 0664 and 0665) The Allegations relating to Counts 1 and 2 [17] The Crown alleges that McCarthy’s Roofing should not have disassembled the swing stage and that having done so, should havecommunicated that fact. These allegations are expressed as follows in the Crown’s Brief: None of the employees of McCarthy’s present on September 7 were trained or authorized to interfere with the work-platform.

McCarthy’s did not communicate to AECON or anyone else that they had disassembled the work-platform. McCarthy’s did not tag-out the work-platform, or otherwise inform anyone intending to use the work-platform of the fact the outriggerswere no longer secured by ties or counter-weights. (Crown Brief, page 5, paragraphs 19 – 21) Why the Defence says Particulars are Needed [18] McCarthy’s complains that neither Count 1 nor the disclosure tells it what the Crown will be seeking to establish it failed to do toensure the safety of Mr. Conrod. Mr.

Proctor says his review of the disclosure identified for him a broad range of possible allegations.

He enumerated these as being allegations that McCarthy’s failed to comply with the legislation by: • Dismantling devices when they weren’t qualified to do so; • Not leaving counter-weights on the parapet; • Not doing an end-of-day check; • Not doing a pre- or post-hazard inspection; • Not disconnecting the power and wire-ropes that should have been removed from the swing stage; • Not tagging-out the swing stage so that other parties would know it was not in use; • Not barricading the swing-stage; • Not inspecting the swing stage prior to someone starting it up; and • Not properly training or supervising its employees. [19] As for Count 2, it is Mr.

Proctor’s submission that what communication was required and to whom needs to be particularized sothat McCarthy’s will know whether it is defending against a charge that it should have tagged-out the disabled swing stage or, morebroadly, was responsible for ensuring that there was communication about the swing stage with Dalhousie, Aecon and Flynn. [20] Mr. Proctor acknowledged that were McCarthy’s to be surprised by any evidence advanced by the Crown at trial it could seek anadjournment. However he submits an adjournment will not be an adequate or satisfactory remedy.

Fairness demands a particularizationof what McCarthy’s should or should not have done.

The Issues [21] I see three issues to be addressed in these reasons: 1) Whether the law requires that a count in an Information, standing alone and without more, must contain sufficient information forMcCarthy’s to know the case it must meet; 2) Whether the disclosure can be taken into account in determining an application for particulars; and 3) Whether, if disclosure can be taken into account, the disclosure in this case is sufficient to ensure that McCarthy’s is able to makefull answer and defence without the need for particularization of the “general duty” counts.

Issues #1 and #2 – Does a Count in an Information, Standing Alone, Have to Contain Sufficient Information or Can the Disclosure BeTaken into Account on an Application for Particulars? [22] McCarthy’s application for particulars relies on the “golden rule” that an accused is entitled to be reasonably informed of theoffence alleged against him, in order to make a full defence and have a fair trial. (R. v. Côté, (SCC), [1978] 1 S.C.R. 8,page 5 (Quicklaw version)) McCarthy’s has also referred me to section 581 (3) of the Criminal Code and

section 11(

a) of the Charter. [23] Section 581(3) of the Criminal Code states: A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information withrespect to the act or omission to be proved against him and to identify the transaction referred to… [24]

Section 11(

a) of the Charter states: Any person charged with an offence has the right to be informed without unreasonable delay of the specific offence. [25] As I will be discussing, in McCarthy’s submission, the “golden rule” requires that a count in an Information standing alone andwithout more must contain sufficient information for an accused to know the case it must meet. [26] The often-cited R. v.

Canadian General Electric Co., mentioned earlier in these reasons, appears to reflect this strict application ofthe “golden rule.” Canadian General Electric Co. was a pre-Stinchcombe, pre-Charter case where particulars were ordered in theabsence of any disclosure being before the court. The allegations under the Combines Investigation Act dated back 7 to 15 years.

All thecourt had was the indictment which did not “do much more by way of giving information than using the words of the statute.”(paragraph 37) [27] McCarthy’s provided some more recent cases that, ostensibly asserting a strict application of the “golden rule”, ordered particulars.I will be discussing R. v. Savanna Drilling Corp., [2011] A.J. No. 555 (P.C.), R. v. I.G.L. Canada (Western) Ltd., [2007] A.J. No. 1057(P.C.) and the Alberta Queen’s Bench decision in R. v. Rose’s Well Services Ltd. (c.o.b. as Dial Oilfield Services), 2009 ABQB 1, [2009] A.J. No. 7 (Q.B.) (“Dial”).

These cases have been offered by McCarthy’s in support of a strict count-standing-aloneapplication of the “golden rule.” However, I have concluded that the reasoning in these decisions reaches beyond a strict focus on thewording of the charges. [28] The Crown has referred me to cases where particulars were denied, including the Alberta Provincial Court decision in Dial that

went on appeal to the Queen’s Bench. The Crown also relies on several other decisions, R. v. Violette, [2008] B.C.J. No. 2776 (S.C.), R.v. Shalala, (NB CA), [2000] N.B. J. No. 14 (C.A.) (leave to appeal dismissed [2000] S.C.C.A. No. 133), R. v. Steve’sOilfield Services Ltd., [2006] A.J. No. 536 (P.C.), and one of my own - R. v. Atlantic Towing Ltd., [2010] N.S.J. No. 496. [29] The same Provincial Court judge who dismissed the application for particulars in Steve’s Oilfield Services denied particulars inDial.

The Crown relies on these Provincial Court decisions in Dial and Steve’s Oilfield and McCarthy’s relies on what the Alberta Courtof Queen’s Bench had to say about the Dial case on appeal. R. v. Savanna and R. v. I.G.L. Canada (Western) Ltd. [30] An iteration of the “golden rule” that a count standing alone must provide sufficient information for an accused to understand whatit is alleged to have done or omitted to do is expressed in both the Savanna and I.G.L.

Canada decisions of the Alberta Provincial Court.The judges in both cases were dealing with “general duty” offences under the provincial occupational health and safety legislation. I.G.L.Canada is explicit at paragraph 44: …The rule does not state that a Count is sufficient if Crown disclosure contains certain statements of fact which if incorporated into orread with an articulated Count disclosed acts which might conflate with the words of the Count and thereby give an accused notice of the“transaction alleged against” the accused. [31] In I.G.L.

Canada particulars were ordered to prevent the Crown from being able “to fix on any event that might emerge in theevidence” to establish liability for the “general duty” offence. The Crown was ordered to “provide particulars of the specific failure orfailures which are alleged against I.G.L. in Count 1.” (paragraphs 45 and 46) [32] Despite the apparently clear statement at paragraph 44 of I.G.L.

Canada that the “golden rule” requires the charge itself to providesufficient information to an accused, at paragraph 34, the court held that particulars should be ordered if “particulars beyond Crowndisclosure are required to enable an accused to know the case to meet.” (emphasis added) This is not a strict count-standing-aloneapplication of the “golden rule”. [33] The later decision of Savanna notes the court’s discretion to order particulars if “it is necessary in order to ensure a fair trial…andthe [accused] is prejudiced in its defence by the lack of particulars.” (paragraph 2) The court seems to adopt a strict “golden rule”approach, although like I.G.L.

Canada, a full reading of the decision reveals that Crown disclosure was a relevant consideration. [34] Savanna took the same strong “golden rule” stance as I.G.L. Canada in its statement that “Count 1 standing alone does not containsufficient information to reasonably inform the Applicant of the transaction alleged against him.” (paragraph 6) Count 1 in Savanna wasa “general duty” offence. The Provincial Court in Savanna, finding support in the decisions in R. v. Ledcor Industries Ltd., [2004] A.J.No. 909 (P.C.) and I.G.L.

Canada, held that particulars were required to reasonably inform the accused “as to what failure…is allegedagainst it.” (paragraph 6) [35] The court in Savanna also drew support for its decision to order particulars from the Alberta Court of Queen’s Bench decision inDial where it was held that particulars should have been ordered by the court below.

In Dial, the Queen’s Bench identified various waysthat particulars could have been provided: “…by having the Crown adopt the failures in the other counts, or adopt the allegationscontained in the report, or provide particulars of the incident leading to the charge.” (Dial, paragraph 56, cited in R. v.

Savanna,paragraph 7) Although the Queen’s Bench found the denial of particulars had not prejudiced Dial, it took the position that an order forparticulars should have been made in the first instance, stating: “…the Crown should have been committed to a position.” (Dial,paragraph 56) [36] Savanna noted the Provincial Court decisions in Dial and R. v. Steve’s Oilfield Services where particulars were denied in thecontext of “general duty” offences.

Peterson, A.C.J. in Savanna commented on the reasoning of his colleague, Judge Pahl, in the twocases: …His decisions in those cases turned on his finding that Crown’s disclosure of the worker safety reports prepared as part of theinvestigation of the incidents provided sufficient detail of the specific failures alleged against the accused so as to render it unnecessaryto require the Crown to supply particulars in order to protect the fairness of the trial. (paragraph 8) [37] What follows in the next paragraph of the Savanna decision suggests to me that even in these cases that purport to espouse a strictapplication of the “golden rule”, Crown disclosure was an influential factor on the issue of whether particulars were required.

Peterson,A.C.J. went on to say: It appears to me that a common thread in all of those decisions is the notion that something more than the bare allegation of the generalduty offence is necessary in order for the accused to be reasonably informed of the transaction alleged against him. Sometimes that“something more” is in the cumulative effect of the further counts alleging specific regulatory offences.

Sometimes the “somethingmore” is in the adequacy of the disclosure material as per [the decisions of Judge Pahl in Dial and Steve’s Oilfield Services]” (paragraph9, emphasis added) Conclusion on Issues #1 and #2 [38] My examination of the cases I have just discussed leads me to conclude that an iteration of the “golden rule” requiring that a countstanding alone and without more must provide sufficient information to an accused has not been applied in an absolute fashion. [39] It is clear that courts take disclosure into account in assessing whether the accused can make a full answer and defence and have afair trial.

This was explicitly the case in R. v. Violette and R. v. Shalala, two cases provided to me by the Crown. [40] I am also satisfied that neither section 581(3) of the Criminal Code nor

section 11(

a) of the Charter require me to ignore, inassessing McCarthy’s application for particulars, the disclosure that has been provided by the Crown. I find it appropriate here to

consider whether, taking the Crown disclosure into account, McCarthy’s has what it needs to make a full answer and defence and have a fair trial. I reject any suggestion that the “general duty” charges on their own have to supply the defendant with everything it requires.

Issue #3 – Is the disclosure in this case sufficient to ensure that McCarthy’s is able to make full answer and defence without the need for particularization of the “general duty” counts? [ 41 ] My analysis of this third issue has led me to reach different conclusions in relation to Count 1 and Count 2. [ 42 ] The Crown is prosecuting McCarthy’s under Count 1 for failing “to take every precaution to ensure the health and safety” of Christopher Conrod. In the Crown’s submission the case is straight-forward and can be easily discerned from the disclosure. In oral submissions Mr.

Keaveny articulated the Crown’s focus: McCarthy’s should never have disassembled the swing stage and having done so, they should have taken reasonable precautions to ensure that no worker at the site would be hurt as a result of the swing stage being dismantled. [ 43 ] I am not persuaded that McCarthy’s risks being broad-sided by an infinite range of allegations, such as suggested by Mr. Proctor from his review of the disclosure as described in paragraph 18 of these reasons. The disclosure indicates to me a focused prosecution that will seek to draw a direct line between the dismantling of the swing stage and Mr.

Conrod’s accident. [ 44 ] I agree with the Crown that the disclosure explicitly reveals for the purposes of Count 1 what McCarthy’s is alleged to have done or failed to do. In addition to the disclosure, Counts 3 and 4 serve as useful signposts. There is nothing obscure about the case McCarthy’s is facing in relation to Count 1. The legal issues associated with Count 1 and the evidentiary basis for this “general duty” charge are not complex, confusing or vague.

I am satisfied that McCarthy’s fair trial rights are not in jeopardy and it will be able to make a full answer and defence on the basis of the information it has without any particularization of Count 1. [ 45 ] I have come to a different conclusion in my assessment of the request for particulars in relation to Count 2.

Count 2 is very broadly stated, alleging that McCarthy’s failed “to ensure communication between the employers and self-employed persons at the project of information necessary to the health and safety of persons at the project…” I do not see in the disclosure a specific enough characterization of the communications that the Crown is alleging McCarthy’s was responsible for making. Particulars would clarify to whom the Crown says McCarthy’s should have communicated, and how and what it should have communicated.

Clarifying this will better position McCarthy’s to respond to the case alleged against it and make a full answer and defence. The prosecution of the Crown’s case will not be unreasonably restricted. An order for particulars in relation to Count 2 will however ensure that McCarthy’s fair trial rights are protected. Conclusion [ 46 ] On the basis of these reasons I am making no order for particulars in relation to Count 1. I am ordering the Crown to provide McCarthy’s with particulars for Count 2.