R. v. Gooch, 2024 NSSC 4

SUPREME COURT OF Nova Scotia Citation: R. v. Gooch , 2024 NSSC 4 Date: 20240104 Docket: CRH 507413 Registry: Halifax Between: His Majesty the King v. Jeff Gooch Judge: The Honourable Justice D. Timothy Gabriel Heard: Oral Decision: Written Release: May 24 - 30, 2023 and June 28, 2023, in Halifax, Nova Scotia December 29, 2023 January 4, 2024 Counsel: Alex Keaveny, for the Provincial Crown Jack MacDonald, for the Defence By the Court: [ 1 ] A young man named Brandon Alcorn died on March 13, 2018. He died while working with Dana Munroe and the accused, Jeff Gooch.

The three were installing “blueskin” on the walls of the entrance tower of a new Kent Building Supply store (then) under construction on Cutler Avenue, in Dartmouth, Nova Scotia (“the worksite”). His death was tragic and need not have happened. The Crown says that Mr. Gooch, who was the foreman of the three-man subtrade installing blueskin to the tower of the structure, is responsible. He is charged with a single count, pursuant to Criminal Code ( CC ) s. 219(1) : criminal negligence causing the death of Mr.

Alcorn. [ 2 ] The Court expresses its gratitude to counsel for their courteous and professional conduct of the case, within the context of the anguish which Mr. Alcorn’s death has caused his family, friends, co-workers, and everyone else aware of what happened to him. Factual background [ 3 ] At all relevant times, Mr. Gooch acted in the capacity of Supervisor and foreman for a company called Insulated Panel Structures (“IPS”). He was working with Messrs. Munroe and Alcorn. The accused and Mr. Munroe had earlier completed the front of the entrance tower prior to Mr. Alcorn’s arrival for work on March 13, 2018.

He was late that day, not arriving at the worksite until approximately 10:00 a.m. After his arrival, as the three were working on the right-hand side of the tower, Mr. Alcorn fell off of the far right edge of the canopy, 18 feet to the ground. This occurred approximately ten minutes after his arrival. He was fatally injured and died later that afternoon. [ 4 ] Video footage of the worksite was obtained days later from the security cameras of another business in the vicinity. During the approximately ten-minute interval between his arrival and the fall, the accused and Mr.

Munroe had set up their tools, which included a paint tray containing primer, and had begun some work on the right-side of the tower. [ 5 ] Mr. Alcorn, for his part, was engaged in measuring and cutting the lengths of blueskin for application to the structure by his two co-workers. He appears to have cut two to three such lengths of blueskin. He was engaged in rolling out another such length,

walking backward doing so. He ultimately walked backward off of the far right edge of the canopy. [ 6 ] The accused and Mr. Munroe (who were intent on their task of installing the measured sheets of blueskin with which Mr. Alcorn had provided them) were not immediately aware of what had occurred. They were alerted by another worker on the ground, Danny Holloway. When so notified, they descended from the canopy to assist. The accused remained with Mr. Alcorn, while Mr. Munroe ran to the office of Maxim (the General Contractor) to alert them as to what had happened.

He then returned to the scene as well. [ 7 ] Both the accused and Mr. Munroe provided statements to the police, on March 13, 2018, and to Occupational Health & Safety (“OHS”) on March 15, 2018. Mr. Gooch, himself, also gave a written report to his employer on March 13, 2018. The Crown alleges that the accused, during the course of the statements said some things which were untrue. He said them while unaware that video footage subsequently obtained from a building in the vicinity, was available.

The Crown argues that the statements, which are conceded to have been voluntarily provided, constitute after-the-fact conduct (lying) which betrays a consciousness of guilt. [ 8 ] This matter proceeded as a blended voir dire . One of the issues with which the Court had to deal related to these statements. This gave rise to a procedural issue. Procedural Issue [ 9 ] The Crown has alleged that Mr. Gooch's supervision of the worksite, and specifically his supervision of the deceased, Mr. Alcorn, was criminally negligent on March 13, 2018. The Crown further contends that this led to Mr.

Alcorn’s death that day. [ 10 ] The after the fact conduct upon which the Crown relies arises out of statements made by Mr. Gooch to his employer, the police, and to Occupational Health & Safety (OHS). As noted, the first two were provided on March 13, 2018. The statement to OHS was rendered two days later. [ 11 ] The Crown argues that there were marked discrepancies in the statements between what had actually occurred, and what Mr. Gooch had said occurred. The Crown asks the Court to conclude that the accused was lying when he made the statements, and draw an inference of an "awareness of guilt" on his part.

Otherwise, the argument continues, why would Mr. Gooch have made these untrue statements in the first place? [ 12 ] The Defence contends that the statements and the video footage of work done the prior day is merely bad character evidence. Counsel contends that the Crown is trying to make the accused look like someone who is a liar, hence, someone likely to have to have committed the offence because they are of bad character. Alternatively, they submit that there are reasons why the statements were made as they were, other than because of a guilty mind.

This argument will be addressed further on in these reasons. [ 13 ] However, this was a blended voir dire . Both the trial and the evidentiary matter were heard as one. Mr. Gooch sought to testify, but argued that he should be permitted to testify strictly for the purposes of the voir dire aspect of the proceeding, without having been deemed to have waived his right to remain silent at the conclusion of the Crown's case.

Succinctly put, he wished to testify so as to provide an explanation for the contradictions in his statements, but not face any cross-examination with respect to anything else. [ 14 ] Defence counsel was aware from the outset that this evidence would be called, and what the Crown would be seeking to use it for. The agreement was nonetheless made to have this matter proceed in a blended fashion.

Having agreed to do so, the accused (in my view) should not be permitted to bifurcate what had been blended ( voir dire and trial) and choose to give testimony in the first but not the second. [ 15 ] The three statements of the accused will be considered later in these reasons.

I will return to them after discussion of the salient portions of the various witnesses' testimony, to determine their significance (if any) within the context of the evidence as a whole. [ 16 ] As to the evidence as a whole, I will not refer to each and every portion of it as provided by each and every witness, or even (necessarily) to each and every witness. I have nonetheless considered all of it, as well as the documentary and video taped evidence.

Witness Testimony Scott Andrews [ 17 ] The general contractor hired to provide supervision for the construction of the Kent store (henceforth the "Kent project" or “project”) was Maxim Construction ("Maxim"). Scott Andrews was Maxim's site superintendent. In that capacity, he was responsible for ongoing daily operations, which included the coordination and supervision of compliance with Maxim's safety requirements by all sub- contractors. [ 18 ] He testified that IPS had been hired to install metal siding panels. Part of its job required the application of blueskin from heights.

While so doing, IPS, and indeed all sub-trades working on the project, were required to follow both Maxim's and their own safety policies. Like all other sub-trades, IPS employees were required to attend Maxim's orientation and to provide proof of fall protection training. They did so. [ 19 ] As befits his duties with respect to monitoring compliance with safety regulations, Mr. Andrews was especially concerned with the more dangerous safety issues, including situations where workers were working from heights, or were too close to the edge and not tied off.

He mentioned that he had observed IPS at times using harnesses and lanyards as fall protection on the Kent site. He also said that Maxim required the use of fall protection measures if work was to be done within 10 feet of a roof edge. [ 20 ] When the suggestion was put to him in cross-examination that staying 6 feet back from the edge constituted an appropriate fall protection safeguard on March 13, 2018, he disagreed somewhat.

He stated that staying back from a leading edge would constitute a form of fall protection and also, that he was aware that some contractors do use that "6 feet from the edge" rule of thumb. However, he emphasized that he goes by Maxim's 10-foot requirement.

[ 21 ] Pursuant to his key duties, Mr. Andrews testified that he inspected the work being conducted by the many sub- trades and their employees and work crews at the worksite (generally) on a near daily basis. [ 22 ] He estimated that he has been in charge of workers’ safety on over 100 job sites, often having up to 50 tradespeople employed per site at any given time.

When monitoring for safety issues on the construction site, he indicated that he is specifically looking for "anybody not following our [Maxim's] safety policies.” [ 23 ] When asked what action he would take if somebody was not following the proper policy, he responded to the effect that it would depend on the nature of the transgression. For something like not wearing a hard hat, perhaps a verbal warning would suffice. If it was something more dangerous, it would have to be rectified right away.

The dangerous examples to which he specifically made reference included "not tied off while too close to the edge" and " working without safety glasses". In a few instances, over the years, where individuals or specific sub- trades repeatedly would not adhere, he had been required to take action to remove them from the site. Mr. Andrews was referred to a Maxim orientation form with respect to Brandon Alcorn (Exhibit 1, Tab 20). It indicates that Mr. Alcorn's first day on site was January 2, 2018. The form was filled out on March 5, 2018. The document bears both the signature of Mr. Alcorn and Mr.

Andrews at the bottom. The latter is indicated to have been the person delivering the orientation. It is reproduced below: [ 24 ] Mr. Andrews was next referred to Maxim "NS Safety Manual" (Exhibit 1, tab 21). This document begins, at page 1, with a notification to the user that "the safety information in this manual does not take precedence over the Occupational Health & Safety Act, regulations and codes of practice". It is a voluminous document, some 470 pages in length.

It covers topics such as "policies/responsibilities", hazard assessment, safe work practices, job procedures, rules, personal protective equipment ("PPE"), maintenance program, training and safety measures, inspections, investigations, environmental policy, emergency preparedness, records and statistics, and a harassment policy. [ 25 ] Maxim’s inspection policy (Exhibit 1, Tab 21, page 209) includes the following: To determine the extent of hazards in the work place and assign controls to them, a system of formal inspections will be conducted on a regular basis by this company on all work sites.

The project supervisor/foreman will be responsible to do weekly job operations formal inspections on his/her work site/s. The requirement to do this inspection weekly is a minimum frequency . More than one inspection a week may be required as site conditions change. The Corporate Safety Advisor or his delegate will conduct a minimum of monthly formal inspections of the work sites. A written report will be required for each work site and a copy will be posted at the site and reviewed with site supervisor and senior management.

The Maxim Construction Inc. office will also be inspected by one person of management and one employee quarterly using the new office inspection checklist .

Corrective action on those items identified as serious, through a system of priorities, will be completed as soon as possible with the workers made aware of any potential danger to their health and safety arising from any inspection.

Priorities are the same as posted on the hazard assessment forms. [Emphasis added] [ 26 ] The form requiring completion by the site supervisor on a weekly basis is reproduced below: [ 27 ] Maxim's "monthly formal jobsite inspection guidelines" (Exhibit 1, tab 21, pages 219 – 220) include admonitions to "always refer to the Occupational Health & Safety Act and the general occupational safety regulations when conducting an inspection"; "During an investigation always check for compliance to the use of PPE" (personal protection equipment); "Before starting an inspection notify the person in charge of the site … where you are and what you are doing." [ 28 ] The document also references, among its job procedures, "the use of guardrails/handrails at elevated slab perimeter” (Exhibit 1, tab 21, page 132).

This is also reproduced below:

[ 29 ] Next, the company's "corporate personnel protective equipment policy" is reproduced:

[ 30 ] Finally, reference is made to the corporate rules (Exhibit 1 tab 21, page 162, the disciplinary guidelines (page 163) and an information sheet (Exhibit 1, tab 21, page 184):

[ 31 ] Returning to Mr. Andrews' testimony, before March 13, 2018, he recalled no safety infractions by IPS. This was consistent with his recollection that he had observed no work being done unsafely by the company. He did not observe Mr. Alcorn’s death himself. As to the written hazard assessments which IPS was required to file as part of Maxim's requirements, Mr. Andrews did not recall seeing any of them, but felt that they were probably "at our office". [ 32 ] Mr. Andrews agreed that the document found at Exhibit 1, tab 2C was an example of a field level hazard assessment, completed by IPS.

It was dated March 12, 2018 (the day before Mr. Alcorn’s death) and was signed by Jeff Gooch, Dana Munroe, and Brandon Alcorn. The document lists one of the work tasks to be performed that day as "blue skinning". The specific hazards listed include slips/trips/falls; working at heights; other trades; garbage; weather; sharp edges; bending/twisting. In the adjacent column is found IPS’s "plans to eliminate/control" the hazard.

Listed sequentially, the control measures noted are: “keep area clean, stay back 6 ft. or 100% tie off , clean as you go, dress for conditions, 100% PPE, stretch before walking.” (Emphasis added) [ 33 ] As earlier mentioned, Mr. Andrews agreed in cross-examination that he was aware that some contractors may use 6 feet from the edge as a safe distance to work without fall protection. He added, however, that he "goes by" Maxim's 10' requirement".

He also agreed that, in the final analysis, for a worker to completely stay back from a leading edge is the best form of fall protection. [ 34 ] Finally, he agreed (in cross-examination) that Maxim's policy would forbid a worker from coming to work while intoxicated. He said it was not allowed because it is not safe. Somebody could get hurt and/or cause an accident. Barry Oxner [ 35 ] Mr. Oxner is a proprietor of "Total Fall Protection", a business operating in Dartmouth Nova Scotia. He was qualified to offer opinion evidence on the inspection and use of fall protection equipment.

He said that fall protection was required while working on the canopy upon which Mr. Alcorn had been engaged. The height of the canopy was 18 feet above ground. He said that the implementation of fall protection measures and/or use of fall protection equipment, when working at or over 3 m (10 feet), is a legislative requirement. He provided a written

summary of his opinions dated April 17, 2019, insofar as they relate to the present case. This included the following observations:

[ 36 ] Mr. Oxner continues in the following manner:

[ 37 ] During his evidence, Mr. Oxner made reference to the Occupational Health & Safety Act, and in particular to the Fall Protection Regulations passed under the auspices of s. 82 of that Act. These included Regulations 21.19 (1) and 21.20 which provide as follows: Fall-protection training required 21.19

(1) An employer must ensure that a person takes and successfully completes training on fall protection at all of the following times: (

a) before they do any of the following: (

i) use fall protection, (ii) work in, supervise or plan the work for a work area where fall protection is required; and (

b) once at least every 3 years. 21.20 Training on fall protection must include all of the following, as applicable to the nature of the work: (

a) a review of all applicable health and safety legislation, regulations and standards; (

b) identification of fall hazards; (

c) a review of the hierarchy of controls that may be used to eliminate or minimize risk of injury from a fall;

(

d) the different methods of fall protection and the most suitable application of the methods; (

e) fall-protection and safe-work procedures; (

f) instruction on assessing and selecting specific anchors that may be used for various applications; (

g) instruction on selecting and correctly using fall-protection components, including connecting hardware; (

h) information about the effect of a fall on the human body, including all of the following: (

i) free fall, (ii) swing fall, (iii) maximum arresting force, and (iv) the purpose of energy absorbers, (

i) pre-use inspections of equipment and systems; (

j) emergency response procedures to be used if a fall occurs; (

k) practice in all of the following: (

i) inspecting, fitting, adjusting and connecting fall-protection systems and components, (ii) the emergency response procedures required by clause (j). [ 38 ] Mr. Oxner said that he was not consulted (beforehand) with respect to appropriate fall protection measures on this project. However, on those occasions when he does consult with respect to such measures, his first objective is to figure out a way to do the job without the need for a harness.

His last choice is the use of harnesses. [ 39 ] Some alternative measures may include the use of guardrails, staging, and use of other methods with which to keep workers away from an edge. Sometimes the scissor/boom lift itself may be used, if the tops of the rails are lifted beyond the edge of the roof, depending on the size of the work area involved. [ 40 ] His expressed preference was, accordingly, for "travel restraint" rather than "fall arrest". Mr. Oxner explained that travel restraint was best because, with such a method there is no need for forces to act upon the body to arrest a fall.

This is because, if proper travel restraint is used, a person is warned or stopped well before they get to a point where they might fall off. [ 41 ] Within this context, he discussed the implementation of a control zone/warning line. He defined it as the area between the edge and a specified distance therefrom. He said sometimes a guardrail, or warning line is used, but the objective remains the same: to warn the worker to stay away from the other side of the line i.e., the "control zone".

He also discussed the varying requirements between the provinces, in their legislation, as to the minimum distance from the edge within which to implement a control zone. [ 42 ] Mr. Oxner discussed (in his direct examination) the types of fall protection equipment with which Mr. Alcorn had been provided. He described it as a harness, a shock absorbing lanyard, and an anchor. The harness, when Mr. Oxner examined it, had been cut by the paramedics on the scene when they arrived to assist Mr. Alcorn, so he had pieced it back together.

He opined that the harness, even allowing for the fact that it had been pieced together, would have failed inspection anyway, because the position of the "D ring" made it appear as though an earlier fall had already occurred in this harness. It appeared that the earlier fall had pulled it out of position, thereby breaking it. It was not up to CSA specifications, as a result. [ 43 ] The lanyard did not measure up either. What he described as "the gate" on the snaplock was not working properly.

In his view, the device which he examined should not have been used by a person weighing less than 250 pounds because, in such a circumstance, it would not deploy. The problem was that the hook would not open/close properly. He further said that the safety mechanism on the right side of the device was jamming and holding the "gate", on the left, open. He said this was usually the result of it (also) having been previously exposed to, or used, during a substantial fall, causing it to bend. [ 44 ] Finally, he stated that the anchor used would not pass muster either.

He opined that it appeared as though somebody had pried it off of a previous roof and bent it all up in the process. He said the device which he examined was more fit for a one-time use, and it could not be reused safely. He also said that the anchor was of a type that could not be safely used on a "Q deck", such as a one upon which Mr. Alcorn was working. It was designed to work on a peaked roof instead. [ 45 ] Upon cross-examination, when asked about whether an individual's danger of workplace accident would increase if impaired by drugs and alcohol, Mr.

Oxner initially replied that he had no experience with respect to drugs or alcohol. When pressed, he agreed that it was unsafe to work from heights while impaired. [ 46 ] He was asked whether, with respect to the anchor, if a worker attached it to the Q deck with 30 screws, it would hold if someone fell. His response was he could not answer that question because he had not read the manufacturer's specifications, and he was not an engineer.

He also agreed that the defects in the D ring (to which he had earlier adverted on direct), as well as those with respect to the rebar hook on the lanyard, could have sustained the damage to which he had referred if Mr. Alcorn had worn that equipment when he fell. In other words, the equipment could have been working fine when Mr. Alcorn put it on.

[ 47 ] Mr. Oxner acknowledged that he had no idea how much Mr. Alcorn weighed. He also eventually agreed that the particular lanyard could , in fact, be appropriate for individuals weighing between 200 – 386 pounds, and that it was "up to the individual using the lanyard to ensure they are within the proper weight range." [ 48 ] Finally, when referred to the USB footage captured on March 12 and 13 th , 2018 (Exhibit 2), he agreed that the footage showed people working on another canopy (to the right of one the one from which Mr. Alcorn fell), one that appeared to be an identical height from the ground.

This was work being done by a different subcontractor, and Mr. Oxner agreed that there were no pylons, guardrails, or any of the other types of safety measures or travel restraint measures which he testified that IMP/Mr. Gooch, ought to have implemented as work was done on their canopy. He also agreed that the workers on the other canopy did not appear to be wearing harnesses, either. Dana Munroe [ 49 ] The Crown called Dana Munroe, who had been working with Messrs. Gooch and Alcorn at the time of the latter's fall, as one of its witnesses. Mr.

Munroe is presently employed by the Canadian Coast Guard as a deckhand but, previous to that, had been employed in the construction industry for about 12 years. The entirety of his work in that field had involved the installation of panels on the exterior of buildings. This type of work necessarily involves working with blueskin. He testified that he has worked on sites in Alberta, Iqaluit, Ontario, New Brunswick, Nova Scotia and Newfoundland and Labrador. He had received fall protection training in all of those provinces except Newfoundland and Labrador.

In the latter Province, he had been provided with what had been called a "refresher course" in fall protection. [ 50 ] On March 13, 2018, Mr. Munroe had been working as an installer, at the Kent worksite, for approximately 2 to 3 months. He confirmed that his employer was IPS, and he was one of a crew of three, consisting of himself, Jeff Gooch, and Brandon Alcorn. Mr. Gooch was the supervisor of the crew. [ 51 ] He described Mr. Alcorn's job as a labourer, and said that the duties associated with that position were similar to those of an installer, but that an installer has more independence.

The labourer's job is to get things that are needed. IPS’s job, at the time, was to install blueskin, which was the weatherproofing membrane applied to the plywood over the tower’s frame. [ 52 ] The sequential steps involved first, the priming of the plywood, then the application of the membrane as a sealant. Necessarily, the blueskin had to be peeled off of large rolls, cut to a specified length, and then applied to the (primed) plywood. At the time of his fall, Mr.

Alcorn's job was to cut the blue skin and then hand it, when cut to specifications, to Munroe and the accused for application to the structure. [ 53 ] Mr. Munroe explained that it was his understanding that fall protection was not required if the work was being done more than 10 feet from an edge of the roof. He explained that if work was happening between 6 feet and 10 feet of the edge, fall protection was required unless a "bump line" was in place. He confirmed no bump lines were used by IPS at the Kent project. Mr.

Munroe's understanding was this 10-foot rule was the industry standard and enforced in all the worksites in which he had been involved. Parenthetically, I note that Mr. Oxner had testified that "control zones" or bump/warning lines are not permitted in Nova Scotia, but are permitted in some provinces. [ 54 ] Mr. Munroe was emphatic, both on direct and cross that this was the generally accepted work safe work practice (when working from heights) in all of jurisdictions in which he had worked throughout Canada.

He added that he had been taught this both in classroom settings during fall protection courses, and on numerous worksites in multiple provinces over the course of his involvement in the industry. [ 55 ] During his testimony, Mr. Munroe identified the butterfly anchor (Exhibit 6) and testified that on the Kent project it would be installed to the Q decking with screws using power tools. [ 56 ] He stated that on March 13, 2018, Mr. Alcorn had arrived late. By the time of his arrival, he (Mr. Munroe) and Mr. Gooch had completed blue skinning the front of the tower on which they were working.

The day previous, all three of them had done the left side. [ 57 ] He further indicated that he did not notice any signs of impairment on Mr. Alcorn's part, although he added that he had did not have a chance to make many observations of the latter while they were on the canopy. [ 58 ] Mr. Munroe added that IPS provided its workers with fall arrest and travel restraint equipment, in the form of harnesses, rope grabs, and anchors. He explained that Exhibit 6 was an example of the type of roof anchor that IPS provided.

He testified that he was involved in the installation of a roof anchor countless times, including many times on the Kent project. [ 59 ] The anchor in question contains a series of holes, thirty in total. It is installed by putting a screw through every hole, using a power tool. The entire installation takes about two minutes per anchor. If the crew was working on an area one day, and had to come back to the same area the next, their practice would simply be to leave the anchor in at the end of the first day. He said he always installs such anchors to Q decking (when they are needed).

Q decking is the surface under the roof itself. [ 60 ] On March 13, 2018, the day of the fall, Mr. Munroe's recollection was that he and the accused had just finished some preliminary work on the tower when Mr. Alcorn arrived (late) for work. They had come down from the canopy just before Mr. Alcorn arrived. Munroe thought that the latter's girlfriend had dropped him off, but he was not certain. They spent some time with Mr. Alcorn before they went back up to the canopy (perhaps 10 – 15 minutes). [ 61 ] Mr. Munroe, himself, did not witness Mr.

Alcorn's fall, but the latter had only been on the canopy for about 5 to 10 minutes before it happened. He rather thought they were just getting set up on the canopy, which is to say, had begun the process of getting the blueskin and primer out of the scissor lift platform. Some membrane had been installed on the tower the previous day by all three of them, but only Munroe and the accused would have been involved in the priming and the application of the membrane aspects of the job. [ 62 ] The USB film footage (Exhibit 2) at the time, however, showed that Messrs. Munroe and Gooch had actually begun priming,

and had applied one or two sheets of membrane (cut by Mr. Alcorn) to the tower before the accident occurred. Mr. Alcorn's fall appeared to have been occasioned while he was walking backward on the canopy unrolling the sheet of blueskin to be cut. He appeared to have kept walking (backwards) right off of the opposite end of the roof to that upon which his two co-workers were situate. [ 63 ] Mr. Munroe explained that on March 13, 2018 he was using the handrail on the scissor lift, while going up to, and coming down from, the roof. He was not planning on using any fall protection while actually on the roof.

He added that he was not required to be tied off because the work plan did not involve any of them going any nearer to an edge of the roof than 10 feet. Moreover, the scissor lift, itself, had an extra 6 feet of railing extending upward from the platform itself, and the platform was approximately at the level of the roof edge in the area where the work was to take place. It was his understanding that anchors and the rope were in the scissor lift, but they were not needed because of the height to which the scissor lift rails extended. There was no plan for anybody to be tied off. [ 64 ] Mr.

Munroe did not recall whether there had been any discussion between the three IPS crewmembers about fall protection on March 12, 2018. He did point out that they had just done their hazard assessment (previously discussed) which indicated the measures that they were going to take to cope with the perceived hazards. He rather thought that there had been some discussion of the (same) hazards the next day, on March 13, 2018, but was not certain and could not recall any specifics. He did not recall that a roof anchor had been installed on either date.

This was because, (to repeat) the work plan had been to stay more than 10 feet away from the canopy edge, so they did not need to be tied off. [ 65 ] When shown the hazard assessment sheet dated March 12, 2018 (Exhibit 1, Tab 20), he had no recollection of having signed it but did acknowledge that his signature was on the document, and that it would be standard procedure for him to sign such assessments. Typically, there would be discussion between the 3 signators and a review of the form (in the work trailer) before they signed.

The measures would have been the same on March 13, 2018 as are specified in that hazard assessment sheet, because they were continuing with the exact same work as the previous day. [ 66 ] Mr. Munroe acknowledged that there were aspects of their work on the project which did require 100% tie off. Specifically, he referenced a document in Exhibit 1 (tab 2A), which was a field level hazard assessment with respect to the work that had been performed on January 3, 2018. It involved the installation of panel where they were expected to work much closer to an edge than 10 feet. His testimony was that Mr.

Gooch enforced that. [ 67 ] In fact, he said that Mr. Gooch's conduct with respect to safety compared favourably to any supervisor under whom he had ever worked during his construction career. The descriptors which he applied to the safety standards which Mr. Gooch enforced were "on par" and "good". He added that he always felt that if he had a concern about safety he could talk to “Jeff” about it. He cited one earlier occasion, while the two were working on a project in Ottawa, when he had come to the accused with respect to such a concern and Mr.

Gooch had immediately acted on the concern and dealt with it. [ 68 ] Mr. Munroe went on to describe the accused as a careful foreman, one who did not take unnecessary risks, one who impressed him with his level of understanding of the dangers of working from heights, and the fact that he always ensured that fall protection in the form of ropes and harnesses, and any others that might possibly be required due to the nature of the work being performed, were available. He said that he is unaware of any other death or injury related incidents on any other sites which had occurred under Mr.

Gooch's supervision. [ 69 ] Mr. Munroe referenced the film footage on the USB (Exhibit 2). He stated that the work which they were doing on March 13, 2018, had them on the right side of the structure (the tower) to which blueskin was being applied. They were back from the edge, a distance greater than 10 feet. If he or Mr.

Gooch were to have inadvertently gotten close enough to the edge to have fallen off, they would have come in contact with the rails extending from the platform of the scissor lift, which was stationed immediately adjacent to the roof. [ 70 ] Moreover, the canopy to the right of the tower was 41 feet in length. Mr. Alcorn's task involved cutting membrane 15 feet in length, and he was tasked with unrolling it in a line roughly perpendicular to the positions of himself and the accused. Once unrolled, the membrane would be cut by him to proper length, then be picked up and carried by Mr.

Alcorn straight to Munroe and Gooch. Given those requirements, and the dimensions of the roof, it should never have been possible for Mr. Alcorn to be any closer than 20 feet from a leading edge of the roof. In fact, he had no job related need to unroll the membrane any more than 15 feet from where his two coworkers were standing. [ 71 ] Mr. Munroe added that, in fact, the day before when the three had been working on the left side of the tower, Mr. Alcorn had been doing exactly the same job. Never once had Mr.

Munroe noticed him walking back any further than was necessary while unrolling the blueskin. [ 72 ] When asked why he told the police “we were just getting set up for the day" when Mr. Alcorn fell, when in fact they had been working already for about 10 minutes on the roof before the fall, he explained that he based his statement on the way he remembered the morning.

He also added that he was fairly worked up and had "never before experienced something like this." [ 73 ] He reiterated that there was an anchor and a lifeline in the scissor lift, which would have been available to any member of the crew on March 13, 2018, had they been needed. The roof was a Q deck, entirely amenable to the installation of the anchor which was available to them. He felt that, weatherwise, it was "breezy" that day, nothing extreme, although the wind did get worse after Mr. Alcorn’s fall.

Sergeant Trish Kennedy [ 74 ] Sergeant Trish Kennedy was one of the HRMPD officers called to the worksite on March 13, 2018. She was asked to assist the Department of Labor and had arrived around 11:30 a.m. that day. She estimated that she spent approximately one hour at the site. She described the weather as dry, but overcast and gusty at times. Her colleague, Constable McCrum, was in charge. She took photos of the scene and confirmed that they were to be found in Exhibit 3. At one point, she got on the scissor lift and it lifted her to the level of the roof.

[ 75 ] Sergeant Kennedy recalled that there were some pieces of equipment in the lift, although she was unaware of the proper names for the items that she saw. She said that her police belt was clipped to the rail of the scissor lift platform, but she could not recall being asked by any of the OHS officers on site to put on a fall arrest harness while using the lift. She did not recall exiting the platform and going on the roof, however she did take photos of the scene at the direction of OHS.

Constables McCrum and Penfound [ 76 ] Constables McCrum and Penfound also testified, the former provided testimony as to the timing when various officers arrived in relation to the fire service and OHS officers, and the latter as to his having been involved in obtaining the statements from Messrs. Gooch, Munroe, and Holloway. [ 77 ] Constable Penfound testified that the statements were taken on March 13, 2018, and he brought each into the worksite mobile office individually in order to take down what they had to say.

He explained to each of them beforehand what was involved and asked each to tell him anything relevant to the incident involving Mr. Alcorn's death. Mr. Gooch provided his statement first, followed by Mr. Holloway and, lastly, Mr. Munroe. Mr. Gooch's statement appeared at Exhibit 1, Tab 10. Whereas page 1 was written by Mr. Gooch personally, the officer himself wrote down the subsequent "Q and A". [ 78 ] Before taking the statements, Constable Penfound had been advised by Staff Sergeant Willett that they were investigating an industrial accident. He was unaware at the time that criminal charges were pending.

He described Mr. Gooch (indeed, all three interviewees) as being "quite upset". Moreover, Mr. Alcorn's condition, indeed whether he would live or die, was still unknown at that time. The officer began taking the statements at 10:39 a.m., which he understood to be less than 1/2 hour after the fall. As noted, he started with Mr. Gooch. OHS Officer Terry Duggan [ 79 ] Mr. Duggan testified that he had been employed by the Province as an Occupational Health & Safety officer for approximately 18 years.

His involvement on March 13, 2018 began when his department received notification from Emergency Services of an accident in the area. As he was senior officer (and one of two investigators) for the area, he attended along with OHS officer Trevor Rutledge. He arrived at the site at 10:44 AM, as his office was approximately five minutes away. He and Officer Rutledge attended in separate vehicles. [ 80 ] He was shown photo 4 in Exhibit 3, and confirmed that he was one of the individuals in that photograph. He identified his colleague, Mr.

Rutledge, as another such person, and said that the person above them in the photograph on the scissor lift was Mr. Gooch. Duggan had given him permission to go up in the scissor lift and retrieve articles that the crew had earlier left on the roof. Mr. Gooch had gone up with Sergeant Kennedy and OHS Officer Rutledge, around noon that day, so what was captured in the photograph would likely have been Mr. Gooch's third trip in the scissor lift, he recollected. [ 81 ] In addition to speaking with Messrs.

Gooch, Munroe, and Holloway, he also spoke with the superintendent of the contractor, Scott Andrews, and took a statement from him. Once he had determined that the site was secure and that there was no further possibility of safety hazards, he proceeded to take photographs with the assistance of Officer Rutledge and Sergeant Kennedy. He then issued a verbal stop work order to Mr. Gooch and Mr. Andrews, and the order was subsequently put in writing. [ 82 ] He identified some of the photographs taken of the area of Mr. Alcorn's fall, as well as the hard hat and harness found proximate to where he lay on the ground.

He explained that he had pointed out to Sergeant Kennedy the items that he wanted seized, which included the harness and lanyard and butterfly anchor. Mr. Duggan subsequently engaged a company to identify the three items seized. Mr. Oxner was its proprietor, and it was called "Total Fall Protection". The weather was overcast, cool, and he recalled that a "wind event" was expected that day. [ 83 ] Officer Duggan recalled that Mr. Gooch was wearing a harness, and that he saw additional rope and anchors in the trailer.

In his view, OHS regulations would have required, where work was taking place at the height of the canopy, three anchors. [ 84 ] He recollected that the only discussion had with Mr. Gooch prior to obtaining his statement was with respect to his address, and what the interview would be about. He did not receive any documentation, or review film footage before he spoke with the accused.

After the last interview of the day, as he was heading home, Officer Rutledge mentioned that he could go to another business in the area (IKEA) to see if they had film footage of the incident, and Officer Duggan agreed that this was appropriate. [ 85 ] On cross, Mr. Duggan confirmed that there was an additional lifeline present on the scissor lift platform, which was not seized, that Mr. Gooch wore a harness, and he could not recall if Mr. Munro was wearing one as well. He agreed that Mr. Alcorn had been wearing one but his understanding was that the fire department had cut it off.

He also agreed that, from 10:44 a.m. onward on March 13, 2018, the weather got progressively worse, with the wind blowing quite hard, and significant gusts lasting into the afternoon. [ 86 ] Mr. Duggan also agreed that, with respect to the anchor seized, it could be appropriate for the roof canopy upon which the work was performed, but he would need to see what was behind the wooden layer on the roof, to confirm that it was long enough to safely enclose the screws to the anchor.

He would have needed to physically examine the roof to say for sure. [ 87 ] Officer Duggan confirmed that any time work was being done above 10 feet in height, the OHSA required that fall protection be implemented. He mentioned that there had to be a risk assessment done, and was shown Exhibit 1, Tab 2C, which was the hazard assessment done on March 12, 2018. He was referred specifically to the plan to "stay back 6 feet or 100% tie off".

Duggan indicated that Nova Scotia Regulations do not prescribe the required minimum distance for the workers to remain back from an unguarded edge while not tied off, but an assessment still has to be done, one that is based upon the type(

s) of hazard(

s) being faced, and all of the surrounding circumstances. [ 88 ] Duggan was asked about his testimony at the preliminary inquiry. He agreed that he had testified at the preliminary inquiry that he had been at hundreds of job sites where workers had not, in his opinion, been using proper protection. He also said that a worker

should never come to work while impaired, especially while working from heights. He agreed that when planned work stipulates that a worker not be within a certain distance of a leading edge, and the distance is reasonable having regard to all circumstances, then the worker will not be required to "tie off". [ 89 ] IPS owner Cameron Smith, also testified for the Crown, and provided his understanding that there was no requirement for workers to be tied off at all times while working from heights. [ 90 ] Finally, Mr.

Duggan mentioned, in a general sense, that there are different types of fall protection mentioned in the regulations. These include fall protection harnesses, guardrails, safety nets, and scaffolding among others. OHS Officer Trevor Rutledge [ 91 ] Officer Trevor Rutledge also testified. Much of his direct was taken up with commentary upon the video footage that he recovered from IKEA showing work being performed March 12 and 13, 2018 (Exhibit 2). This included footage captured of the very top roof, well above the canopy upon which Mr. Alcorn was working.

He agreed that, at one point, it appeared to depict a person walking to the far right of that upper roof and bending to look over each side of the corner. The individual had come from the left while on the upper roof and travelled to the extreme right.

He also agreed that there is no way that this individual was wearing any type of fall protection equipment, nor did there appear to be any other type of restraint that was apparent. [ 92 ] Officer Rutledge also agreed that this individual is definitely bending to peer over the side of the very upper roof, that it looked like he was a worker for another sub trade at the site, and not part of the IPS crew, because the IPS crew were all working on the tower, on the left canopy below him.

On another occasion, he agreed that there appeared to be two people on that "top roof" (Exhibit 2, March 12, 2018 at 3:24 p.m.) who appeared to go very close to the edge. Officer Rutledge agreed that they similarly did not appear to be wearing any fall restraint or protection, however he did say that he was unsure whether there was an inner parapet wall at the edge, which could be a form of fall protection, if it was there. [ 93 ] The defence elected to call some evidence. Toxicologist Jennifer Swatek [ 94 ] Ms. Swatek was qualified by agreement to provide opinion evidence in the area of toxicology.

She testified that both Delta- Carboxy THC and Delta-9 THC were found in the samples of Mr. Alcorn's blood taken before his death. Her report, dated May 23, 2023, was entered as Exhibit 13. [ 95 ] At trial, Ms. Swatek characterized Delta-9 THC as the principal psychoactive material deposited in the body after the ingestion of cannabis. At page 2 of the report, she describes it as the active ingredient found in marijuana. She describes the drug as a "DEA

schedule one hallucinogen. Pharmacologically, it has depressant and reality distorting effects". [ 96 ] The blood sample to which she referred was drawn from Mr. Alcorn's body at 3:20 p.m. on March 13, 2018, almost 5 ½ hours after he had fallen off of the canopy. Even if there was no brain activity at that time, she explained, his body was still alive when the sample was taken.

Therefore, it would have continued to actively eliminate the Delta-9 THC from his system from the time that he had ingested it, until the blood sample was taken. [ 97 ] Unlike the situation with respect to alcohol, there is no algorithm with which to mathematically determine what the blood Delta-9 THC level of Mr. Alcorn would have been (earlier, at 10 a.m.) when he ascended to the canopy. There is no generally recognized method of calculating the rate of elimination of Delta-9 THC from one's body, because the elimination rate varies from individual to individual. Ms.

Swatek was able to say, however, that the THC levels in the blood of the deceased would almost certainly have been higher, and indeed may have been much higher, at 10 a.m. than the 0.93ng/ml reading garnered at 3:20 p.m. that day. In her report, she noted (page 2) that Delta-9THC generally rapidly leaves the body of a user, but may be present longer in chronic users. [ 98 ] In her view, for a person to walk off the end of a roof, seemingly paying no attention to their surroundings, would be consistent with that individual’s impairment, since this type of behaviour is generally not displayed by sober people.

The amount of the substance found Mr. Alcorn's blood "could" be consistent with him having consumed marijuana between 8-10 a.m. on March 13, 2018. Dr. Neal Sutton [ 99 ] With the consent of the Crown, Dr. Sutton was qualified to provide opinion evidence in occupational health and medicine, including the effects of drugs and alcohol on the human body and in the workplace. Since 1998, Dr. Sutton has been a medical consultant to a number of large employers. For example, he is the medical director at Bombardier Aerospace, and associated similarly with some other well-established organizations.

Among his many roles within that genre, he testified that he often drafts and consults with respect to health and safety policies in the workplace. His qualifications included experience in many positions dealing with requirements relating to working safely from heights, and he has extensive expertise with respect to the impairing effects of drugs and alcohol within that milieu. [ 100 ] In Dr. Sutton's view, there is no acceptable level of Delta-9 THC in a worker’s blood when performing tasks such as working from heights. He said that is the industry standard.

He said this is because the drug has impairing effects which can negatively impact the user’s balance, field of vision, and awareness of their surroundings. [ 101 ] Having previously reviewed the PI transcript, Mr. Alcorn's toxicology report, and the video (Exhibit 2) depicting Mr. Alcorn's fall, Dr. Sutton reiterated that it was impossible to work backward from the Delta-9 THC reading obtained at 3:20 p.m. that day to calculate the exact time of Mr.

Alcorn's last drug use, but it was likely that he had either consumed marijuana very late into the night before his fall, or had consumed it after waking up on the morning of March 13, 2018, before arriving at work. [ 102 ] In cross-examination, Dr. Sutton was questioned further with respect to his expressed opinion that Mr. Alcorn was likely impaired

when he fell. He testified that although it was impossible to say for certain, his opinion was that Mr. Alcorn, "on a balance ofprobabilities", was indeed impaired. This was based upon the combination of Delta-9 THC still remaining in his blood at 3:20 p.m. thatday, combined with the observations of Mr. Alcorn's behavior that day. Like Ms. Swatek, he observed that ordinarily, a sober person,familiar with their surroundings, would not walk backward off of a canopy. [103] Moreover, he indicated that, despite his likely impairment, the fact that Mr.

Alcorn was in that state would not necessarily havebeen apparent during his short interactions with Mr. Gooch and/or Mr. Munroe after his late arrival at work on March 13, 2018.Specifically, Dr. Sutton indicated that a person need not have red eyes, or be exhibiting any other overt indicia of impairment, in order tobe experiencing the negative cognitive effects of marijuana consumption.

Analysis [104] The three most pertinent sections of the Criminal Code follow: Duty of persons directing work 217.1 Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty totake reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task. Criminal negligence 219

(1) Everyone 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. Definition of duty

(2) For the purposes of this section, duty means a duty imposed by law. Causing death by criminal negligence 220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable (

a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment fora term of four years; and (

b) in any other case, to imprisonment for life. [105] These provisions were explored in some detail in cases such as R v. M.R., 2011 ONCA 190, where O'Connor, JA, explained: [28] The test for criminal negligence as set out in s. 219 requires the Crown to show that an accused’s conduct or omissionrepresented a “marked and substantial departure” from the conduct of a reasonably prudent person in the circumstances. See forexample, R. v.

J.F., 2008 SCC 60 , [2008] 3 S.C.R. 215, at para. 9. [29] The high standard of a “marked and substantial departure” from the conduct of a reasonably prudent person applies to both thephysical and mental elements of the offence: R. v. J.L. (2006), (ON CA), 204 C.C.C. (3d) 324 (Ont. C.A.), at para. 16. In addressing the offence of criminal negligence causing death, a court should first look to the actus reus of the offence and determine ifthe conduct or omission involved meets the marked and substantial departure standard.

If it does, the court should then consider thequestion of whether the mens rea is established. [30] The mental element for criminal negligence is described as a modified objective test: R. v. Hundal, (SCC),[1993] 1 S.C.R. 867, at p. 887, Cory J.; R. v. Tutton, (SCC), [1989] 1 S.C.R. 1392, at p. 1413, McIntyre J. A courtmust consider the facts existing at the time in light of the accused’s perception of those facts and assess whether the accused’s conduct,in view of his or her perception of the facts, constituted a marked and substantial departure from what would be reasonable in thecircumstances: see R. v.

Tutton, at p. 1432. In considering this issue, the court should consider whether the accused either adverted tothe risk involved and disregarded it, or failed to direct his or her mind to the risk and the need to take care at all. In most cases, themental element can be inferred from the accused’s conduct or omission: see R. v. Creighton, (SCC), [1993] 3 S.C.R. 3,at pp. 73-74, McLachlin J. (as she then was); R. v. Hundal, at p. 872, McLachlin J., concurring; R. v. Tutton, at p. 1432, McIntyre J. [106] In R v.

Javanmardi, 2019 SCC 54, the court observed that: [19] The actus reus of criminal negligence causing death requires that the accused undertook

an act — or omitted to doanything that it was his or her legal duty to do — and that the act or omission caused someone’s death. [20] The fault element is that the accused’s act or omission “shows wanton or reckless disregard for the lives or safety of

other persons”. Neither “wanton” nor “reckless” is defined in the Criminal Code, but in R. v. J.F., 2008 SCC 60 , [2008] 3S.C.R. 215, this Court confirmed that the offence of criminal negligence causing death imposes a modified objective standard of fault —the objective “reasonable person” standard (paras. 7-9; see also R. v. Tutton, (SCC), [1989] 1 S.C.R. 1392, at pp. 1429-31; R. v. Morrisey, 2000 SCC 39 , [2000] 2 S.C.R. 90, at para. 19; R. v.

Beatty, 2008 SCC 5 , [2008] 1 S.C.R. 49, atpara. 7). [21] As with other negligence-based criminal offences, the fault element of criminal negligence causing death is assessedby measuring the degree to which the accused’s conduct departed from that of a reasonable person in the circumstances. For somenegligence-based offences, such as dangerous driving, a “marked” departure satisfies the fault element (J.F., at para. 10; see also: Beatty,at para. 33; R. v. Roy, 2012 SCC 26 , [2012] 2 S.C.R. 60, at para. 30; R. v. L. (J.) (2006), (ON CA), 204C.C.C. (3d) 324 (Ont. C.A.), at para. 15; R. v.

Al-Kassem, 2015 ONCA 320, 78 M.V.R. (6th) 183, at para. 6). In the context of criminalnegligence causing death, however, the requisite degree of departure has been described as an elevated one — marked and substantial(J.F., at para. 9, applying Tutton, at pp. 1430-31, and R. v. Sharp (1984), (ON CA), 12 C.C.C. (3d) 428 (Ont. C.A.)). [22] These standards have much in common. They both ask whether the accused’s actions created a risk to others, andwhether “a reasonable person would have foreseen the risk and taken steps to avoid it if possible” (see Roy, at para. 36; Stewart, at p.248).

The distinction between them has been described as a matter of degree (see R. v. Fontaine (2017), 2017 QCCA 1730 , 41C.R. (7th) 330, at para. 27; R. v. Blostein (2014), 2014 MBCA 39 , 306 Man. R. (2d) 15, at para. 14). As Healy J.A. explainedin Fontaine: These differences of degree cannot be measured by a ruler, a thermometer or any other instrument of calibrated scale. The words“marked and substantial” departure are adjectives used to paraphrase or interpret “wanton or reckless disregard” in

section 219 of theCode but they do not, and cannot, indicate any objective and fixed order of magnitude that would have prescriptive value from one caseto another. As with the assessment of conduct in cases of criminal negligence, the assessment of fault by the trier of fact is entirelycontextual. [para. 27] [23] In J.F., Fish J. did not fully explain how to distinguish between a “marked” and a “marked and substantial” departure,as the case did not “turn on the nature or extent of the difference between the two standards” (paras. 10-11).

In this appeal, as well, thedifferences in etymology are not dispositive and need not be resolved. In any event, the parties argued on the basis that the properthreshold for criminal negligence causing death is a “marked and substantial” departure, and that is the basis on which these reasonsapproach the issue. A conviction for criminal negligence causing death therefore requires the Crown to prove that the accused undertookan act, or omitted to do anything that it was her legal duty to do, and that the act or omission caused the death of another person(the actus reus).

Based on J.F., the Crown must also establish that the accused’s conduct constituted a marked and substantial departurefrom the conduct of a reasonable person in the accused’s circumstances (the fault element). [Emphasis added] [107] The authorities appear to require a court to conduct a tripartite analysis before entering a conviction for criminal negligencecausing death. Specifically, I must be satisfied beyond a reasonable doubt that the accused undertook

an act, or omitted to do anythingthat it was his legal duty to do; that the act or omission caused the death of another person; and that the accused's conduct constituted amarked and substantial departure from the conduct of a reasonable person in the accused’s circumstances. If I have been left in doubtwith respect to any of these criteria, I must acquit. [108] First, although Mr. Gooch did not testify, I must consider the statements he provided to the police, his employer, and OHS.

Ibegin that consideration with a discussion of the law pertinent to how (if at all) they may be relevant as “after the fact” conduct. A. The Statements [109] Generally speaking, this type of conduct (which used to be referred to as "post-offence conduct") is, now, as referenced above,known as after-the-fact conduct. Many of the types of situations in which it may arise involve incriminating conduct (R v. White, 2011SCC 13 , [2011] 1 SCR 433; R v.

Monteleone, [1987] 2 SCR 54), but sometimes it can involve allegedly incriminatingstatements. [110] In order to attenuate the risk that speculative inferences may be drawn as a result of conduct exhibited after-the-fact, lacking thecontext of the event itself, the trier of fact must be cautious as to the manner in which it is assessed, and its inferential value, if any. [111] The Court in R v. Calnen, 2019 SCC 6 , [2019] 1 SCR 301, reminds us that: [116] Even if admitted for a particular purpose, after-the-fact conduct may pose some unique reasoning risks: see D.

M.Paciocco, “Simply Complex: Applying the Law of ‘Post-Offence Conduct’ Evidence” (2016), 63 Crim. L.Q. 275. Conduct that is “after-the-fact”, and therefore removed in time from the events giving rise to the charge, carries with it a temporal element that may make itmore difficult to draw an appropriate inference. This evidence may also appear more probative than it is, it may be inaccurate, and itmay encourage speculation.

After-the-fact conduct evidence may thus give rise to imprecise reasoning and may encourage decisionmakers to jump to questionable conclusions. … [119] Contrary to certain suggestions made in the courts below, there is no legal impediment to using after-the-fact conductevidence in determining the accused’s intent. The jurisprudence of this Court is clear: after-the-fact conduct evidence may be relevant tothe issue of intent and may be used to distinguish between different levels of culpability (see White (1998), at para. 32; White (2011), atpara. 42; Rodgerson, at para. 20).

Specifically, this Court has said that “[w]hether or not a given instance of post-offence conduct hasprobative value with respect to the accused’s level of culpability depends entirely on the specific nature of the conduct, its relationship tothe record as a whole, and the issues raised at trial”: White (2011), at para. 42. There is therefore “no per se rule declaring post-offenceconduct irrelevant to the perpetrator’s state of mind”: R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at para. 20, per Doherty J.A. As

there are also no automatic labels which make certain kinds of after-the-fact conduct always or never relevant to a particular issue, “wemust consider all the circumstances of a case to determine whether the post-offence conduct is probative and, if so, what use the jurymay properly make of it”: see R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 55. [Emphasis added] [112] If there are any inferences to be drawn from such evidence, they are not to result merely from the application of "common sense"to the impugned conduct or statement.

Because of this, a trier of fact generally considers such conduct after the evidence, as a whole, hasbeen adduced. It will then be examined within the context of that evidence, which necessarily includes consideration of any alternativeexplanations for the conduct in question. (See Calnen, para 119) [113] Rules governing the admissibility of after-the-fact conduct, and the manner of drawing inferences from it, have arisen, in part, todistinguish it from mere evidence of bad character.

As a general rule, evidence which is called by the Crown for the purpose only ofshowing that the accused is a bad person, therefore the type of person likely to have committed the acts in question, is inadmissible. [114] Misleading statements or lies do not qualify as after-the-fact conduct in a vacuum: there must be evidence that the evidence oralibi was intentionally concocted and/or that the accused attempted to mislead the investigative authorities. As the Court said in R v.O'Connor, (2002), (ON CA), 62 OR (3d) 263 and reiterated in R v.

Laliberté, [ 2016 SCC 17 , 2016] 1 SCR270: [31] In this case, it is my view that the circumstances in which the appellant made the allegedly false statements to the police and thedetailed nature of those statements constitute sufficient evidence upon which a jury could conclude that the appellant fabricated thestatements in order to mislead the police and divert suspicion from himself. His first statement was made the same day as the shootingand, importantly, was made to the police at a time when the police did not suspect the appellant and the appellant did not have reason tobelieve that he was a suspect.

The police, as a matter of routine, questioned witnesses who might have information about the deceased'swhereabouts prior to the shooting. The appellant's initial statement furnished a complete alibi and, if true, would lead the police toconclude that he was not involved in the offence. That statement and the next two statements were very precise, both as to the appellant'swhereabouts and the times he was in the various places. If the jury were to disbelieve the appellant's statements, they might fairly askwhy would the appellant tell such detailed and specific lies to the investigators. Why not tell the truth?

And how was it that the appellantwas so well prepared with a detailed and precise statement about his whereabouts when questioned by the police? In my view, it wouldbe open to a jury to use the evidence of the circumstances surrounding the making of those statements and the nature of the statementsthemselves to conclude that the appellant fabricated the statements to avoid suspicion. [115] There is a distinction to be drawn between out-of-court statements by an accused which are simply not believed and (therefore)rejected, and out-of-court statements by an accused to escape guilt. As the Court noted in R v.

Coutts, (ON CA),[1998] O.J. No. 2555 (Ont. CA): 13 This court has repeatedly drawn a distinction between statements made by an accused (or the testimony of an accused), which aredisbelieved and, therefore, rejected and those statements or testimony which can be found to be concocted in an effort to avoidculpability. The former have no evidentiary value; the latter can constitute circumstantial evidence of guilt: R. v. Davison (1974), (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.), leave to appeal to S.C.C. refused, [1974] S.C.R. viii (S.C.C.): R. v. Mahoney(1979), (ON CA), 50 C.C.C. (2d) 380 at 389 (Ont.

C.A.), aff'd without reference to this point (1982), (SCC), 67 C.C.C. (2d) 197 (S.C.C.); R. v. Sandhu (1989), (ON CA), 50 C.C.C. (3d) 492 (Ont. C.A.), at 499-501; R.v. Levy (1991), (ON CA), 62 C.C.C. (3d) 97 (Ont. C.A.), at 100-103; R. v. Witter (1996), (ONCA), 105 C.C.C. (3d) 44 (Ont. C.A.), at 52-53.

In an oft quoted passage from Mahoney, supra, Brooke J.A. said, at p. 389: If the jury accepted the evidence of the Crown witnesses that the appellant was the killer, disbelief of the appellant's denial wasinevitable, but that disbelief could not be treated as an additional item of circumstantial evidence to prove guilt.

In my view, the juryought not, routinely, to be instructed with respect to the inferences that may be drawn from the fabrication of a false alibi in the absenceof a proper basis for that instruction, as for example, where there is extrinsic evidence of fabrication, or where the appellant has givendifferent versions as to his whereabouts, one of which must be concocted. [Emphasis added] [116] So, too, in R v.

Oland, 2016 NBCA 58, where it was noted: [8] …Significantly, the trial judge did not explain to the jurors that, even if they found the appellant’s erroneous statement was a lie, ithad no probative value unless they concluded, on the basis of other evidence independent of that finding, that the lie was fabricated orconcocted to conceal his involvement in the murder of his father. [Emphasis added] [117] In this respect, the Crown points to the captured video footage of Mr. Gooch and Mr.

Munroe speaking together after Mr.Alcorn's death had occurred, but prior their respective provision of statements to the authorities. Counsel suggests that this is evidence ofthem collaborating with respect to what they would tell the police and/or OHS. [118] With respect, this is a fairly weak basis upon which to ground the inference which the Crown urges. The fact that Mr. Gooch andMr. Munroe were observed speaking to one another in the aftermath of such a tragic occurrence, without more, is unremarkable. Whatwould have been remarkable would be if they had not spoken at all in the aftermath of Mr.

Alcorn's death. There is absolutely noevidence that they took this opportunity to concoct an alibi. [119] Nor was there a basis upon which either could have expected that criminal charges would be forthcoming against anybody, at thetime their statements were provided. How could they? At the time he conducted the interview, Constable Penfound himself had no ideathat such charges were pending. He testified that he thought they were simply investigating an industrial accident.

[ 120 ] Dealing with the police statement of March 13, 2018, it is found at Exhibit 1, Tab 10, which is transcribed below: “I, Jeff, was setting up are [sic] work area with Brandon Alcorn. I was passing him material and equipment. I turned to get more stuff from my partner Dana when I heard a yell, looked back and saw Danny on the ground getting my attention that’s when I noted Brandon had fallen. I didn’t actually see him fall or how he had landed.

I came down as fast as I could from the roof to see Brandon on his side moving and breathing heavy.” [ 121 ] As pointed out earlier, the statement was given less than one half hour after Mr. Alcorn's fall, at a time when, as Constable Penfound noted, Mr. Gooch was visibly upset. [ 122 ] An "accident/incident investigation form" was provided by Mr. Gooch to his employer that same day. This is found at Exhibit 1, Tab 9, and is transcribed below as well: “Me and Dana started installing blueskin at 7:30 am on the front of the tower. We finished this by 9 am.

Me and Dana went to get a ladder we got back at 10 am at which this time Brandon was just showing up to work. We loaded the sissor [sic] lift with gear and went up to the canopy. I told Brandon to install the butterfly clip on the Q-Decking of the canopy. I started unloading the sissor [sic] lift, turned back and Brandon had fell off the canopy 42 ft away from we were working. There was no work at that end of the canopy. I had my back turned when he fell so I could not see how it happened.” [ 123 ] Next, I will set forth the more pertinent sections of the transcription of the 25-page interview provided by Mr.

Gooch to Occupational Health & Safety Officers Duggan and Rutledge on March 15, 2018. The transcription was prepared as an aide to the oral interview, recorded on the USB (Exhibit 2): Page 4 16 Q. Right, which kind of leads us to the 17 next question is, on Tuesday, March 13th, 2018 at the work 18 site known as the Kent new building construction located 19 off of Cutler Avenue, a workplace accident occurred. Can 20 you tell me what you know about this? 21 A. On Tuesday, we were setting up our work 22 station. It was ten o’clock in the morning. Brandon had 23 just showed up at ten o’clock this day.

He told me he had 24 slept in. He -- he donned on his harness, grabbed the 25 tools he usually needs to do his job. Shortly after ten Page 5 1o’clock, we got in our scissor lift, came up to the edge of 2 the roof where we were going to be working. Dana Munroe, 3 my other co-worker, he -- he jumped out, was inspecting the 4 wall that we were going to be blue skinning. Brandon had 5 jumped out of the lift. I turned around to pass up more 6 material and equipment.

I turned around, Brandon was 7 nowhere to be found. 8 At this point, a gentleman on the ground, I 9 believe his name was Danny, we both had heard a loud yell. 10 I seen Danny on the ground. We made eye contact. It hit 11 me hard there that something had happened. … Page 6 2 Q . Okay. And you said you saw Brandon 3 Alcorn get out of the scissor lift?

4 A . Yes. 5 Q . And you didn’t see which direction he 6 was going to walk towards? 7 A . At that time, I was passing up material, 8 I -- turning back and forth continuously, passing up gear. 9 Turned around for a brief second to grab more stuff and 10 turned around and he was nowhere to be seen. 11 Q . So, at the time of this unloading that 12 you were doing was there anything on the roof at that time, 13 a canopy? 14 A . There was a, I believe a tray, a paint 15 tray, that we use to put the primer product in to roll onto 16 the wall. The next -- that -- that actually was left up 17 there from the day before.

Other than that, we didn’t have 18 any -- anything loaded on the roof yet. We were still just 19 sort of inspecting what we were coming up against. 20 Q . So, to your knowledge, the intent was to 21 work over by the -- where the blue skin --- 22 A . Yes, in the furthest inside away from 23 the leading edge. 24 Q. Okay. 25 A . I was going to have a man in the scissor Page 7 1 lift. Obviously, he’d be tied off in the lift. There’d be 2 a guy in the inside corner, helping hold the roll of blue 3 skin to apply it to the wall.

There was no reason or -- 4 there was no work or reason for Brandon to be over in the 5 area he was in at this time. We had finished everything 6 that needed to be done in that area and I have no, no, no 7 --- 8 Q. Sure. 9 A. --- understanding why he was that far 10 away from us. Page 9 2 Q . And you talked about safety 3 documentation that you had to fill out for Maxim. What 4 about your own company? Do you require any safety 5 documentation for working at the Kent’s building site?

6 A . Yes, I do a monthly field level hazard 7 assessment of upcoming work. You know, it does change 8 week-to-week sometimes. Some aspects take longer but that 9 and our Tool Box Talk, I fill out the Tool Box Talks and 10 every morning, the boys will inspect their lifts, look over 11 their harnesses, any type of safety gear or equipment that 12 we use that day such as, you know, power tools, manlifts, 13 safety equipment. 14 Q . So, did you have any type of Tool Box 15 Talk that morning? 16 A . It -- it happened, I believe, on the 17 12th, the Monday. 18 Q . And so, you don’t necessarily do one 19 every day?

You just do one right at the beginning of the 20 week or --- 21 A . You -- or as when the procedure changes. 22 You know, and when you have a different aspect of install. 23 Q . And so, let’s talk a little bit about 24 your safety training. Can you describe briefly what’s some 25 of the safety training is that you have? Page 12 5 Q . So, what type of Fall Protection were 6 you going to use -- be using that day? 7 A. That would’ve been lifeline and rope 8 grab. 9 Q. Okay. 10 A. We didn’t have any -- any work to do at 11 the edge of -- in this area.

My understanding of training 12 was that on a flat roof, you had to stay away six foot from 13 the leading edge where all of our work was, I believe, in 14 that -- in that confine of being -- being a certain 15 distance away from the edge. 16 Q. So, if I understand it correctly, all 17 three of you; yourself, Dana Munroe and Brandon Alcorn were 18 all wearing harnesses? 19 A. Yes. 20 Q. And if you’re not going to need the 21 harnesses, why were -- why did you have the harnesses on?

22 A. Well, to -- to go up on the scissor 23 lift, it’s mandatory to wear it in the lift itself. 24 Q. Okay. And the scissor lift itself, you 25 have training in that scissor lift? Page 13 9 Q . So, based on that, you’re indicating 10 that where they were going to work, they didn’t need to 11 have any type of Fall Protection because they’re beyond six 12 feet? 13 A . Yes. 14 Q. Without putting words in your mouth. 15 A . From the leading edge. That -- that was 16 my

interpretation, yes. The man in the lift would’ve been 17 constantly hooked off because he was -- he would be going 18 up the outside corner, where we would be on the inside, 19 furthest away from the leading edge. 20 Q . So, the day of the accident, was there a 21 Fall Protection Safe Work Procedure developed for the work 22 that was going to be done that day? 23 A . It -- I don’t -- it would’ve have been 24 made that day but it would’ve been the same procedure for 25 most of the other work we had -- we had done in that -- on Page 14 1 that jobsite. 2 Q. So, you’d use the same procedure 3 everywhere? 4 A.

Well, depending on your install. Like, 5 if you’re on the side of the building, you’re constantly in 6 the lift. On top of that canopy at times, we -- we were 7 using our rope grab and lifeline. Page 16 2 Q . Okay. So, I think I’ve already asked 3 this but I’ll ask you again. So, prior to starting work on 4 Tuesday, March the 13th, was there any safety meetings, 5 hazard assessments filled out? 6 A . There was the Tool Box Talk the day 7 before. On Tuesday, we were doing the same aspect, same 8 install, the blue skin and primer install. So, it didn’t

9 change. Our procedure or our work didn’t change. Page 19 16 Q. Right. Now, Brandon was wearing a 17 harness, obviously, at the time? 18 A. Yes. 19 Q. Who owned that harness, do you know? 20 A. That would’ve been supplied by the 21 company. 22 Q. Okay. 23 A. I believe we had just bought that 24 harness he was wearing. I want to say beginning of 25 September when I was doing the Nova Centre job. Page 20 Q. Okay. And was Brandon’s safety training 2 -- you confirmed that he had Fall Protection? 3 A. Yes.

He -- when he first showed up, one 4 of our things is like all of our work is done in the air. 5 We don’t usually do much ground work, so one of the main 6 things is you -- you have to have your Fall Arrest and 7 working from heights training. 8 Q. Right. 9 A. He had showed me his certificate when he 10 first came. I gave him our new hire forms and then it’s 11 their responsibility to fill those forms out and email them 12 to MacKenzie Smith, who’s in charge of all the 13 documentation. 14 Q. Okay. Couple of additional questions. 15 So, the safety equipment you say he -- the company owned 16 the harness.

What other safety equipment would he have had 17 to have? 18 A. Gloves, glasses. We deal with a lot of 19 cutting metal, so sparks are constantly flying where we 20 wear a face shield in that time. This day, like everything 21 was supplied for him. Everything was there. Like, the 22 rope and the butterfly clip. … 11 --- INTERVIEW BY MR. RUTLEDGE: 12 Q. ... Just to clarify which wall

13 you guys were planning to work from that day. There was 14 kind of two walls on the canopy. There was a wall that’s 15 about 15 feet and another wall was about 42 feet. 16 A. Yes. 17 Q. Which of those two walls were you guys 18 working on? 19 A. We were working on the smaller of the 20 two. 21 Q. Okay. 22 A. First thing in the morning, Brandon 23 hadn’t showed up to work. Me and Dana did the front, the 24 big wall that you were talking about. We did that by 25 ourselves out of the scissor lift. Page 23 1 Q. Okay. 2 A. We had finished that area up and moved 3 to the other side.

That’s when Brandon showed up around 4 ten o’clock in the morning. So, we were just gearing up to 5 switch stations. 6 Q. Okay. You mentioned lifeline and rope 7 grab. 8 A. Um-hmm. 9 Q. I didn’t see a rope grab. Where was 10 that located? 11 A. We usually have pails, steel pails, or 12 you know, plastic 5-gallon pails that we’ll put our tools 13 in. 14 Q. Umm. 15 A. Those were up in the front corner there 16 of the lift, on the cantilever. 17 Q. Was the rope grab there because I don’t 18 remember seeing it? 19 A. Inside the pail? 20 Q. Yeah. 21 A.

It should’ve been inside that pail 22 because we had grabbed it out that day. 23 Q. Okay. But hadn’t had -- you hadn’t -- 24 didn’t use it that day?

25 A. No. Like I said, we were just getting Page 24 up there just to set up. We hadn’t even started any work 2 up there. 3 Q. On the Monday Tool Box Talk, were both 4 Dana and Brandon present for that? 5 A. Yes. 6 Q. They were both there? 7 A. Yeah. 8 Q. Okay. 9 A. Monday, yes. Brandon had -- I gave him 10 a work -- a ride to work like I usually do that day, and 11 they were both present. 12 Q. Okay. Did they sign off on the Tool 13 Box? 14 A. Yes. 15 Q. You guys would’ve documented? 16 A. Yeah. 17 Q. Okay. The butterfly anchor, where was 18 that going to be attached? 19 A.

That would’ve been -- there’s a drain up 20 on that flat roof in the centre of our area of work, so it 21 would’ve been about 15 feet from the inside corner. 22 There’s a drain there. It would’ve been placed right 23 there, closest to the wall. 24 Q. And attached to the floor or wall? 25 A. To the Q-decking, yes. Page 25 Q. 1 To the Q-decking? 2 A. Yes. 3 Q. Okay. 4 MR. RUTLEDGE: That’s all I have, Terry. 5 MR. DUGGAN: Okay. I guess the only 6 question that we ask is, do you have anything you’d like to 7 add? 8 MR. GOUCHE [sic]: I -- I’m still just trying to 9 wrap my head around why and how this happened.

I -- I 10 still think of why was he over that far away from us? I --

11 I didn’t see him going over there. I wasn’t paying 12 attention to what he was doing but I just -- I have no 13 understanding why he was that far away from our work area. 14 I just -- I don’t know.

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