R. v. Eagles (E.), (2010) 290 N.S.R.(2d) 63 (PC)

• Judge: Tax, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: February 12, 2010
• Jurisdiction: Nova Scotia
• Citations: (2010), 290 N.S.R.(2d) 63 (PC);2010 NSPC 18

R. v. Eagles (E.) (2010), 290 N.S.R.(2d) 63 (PC);

    920 A.P.R. 63

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. AP.064

Her Majesty the Queen v. Eric Eagles

(1715571; 1715572; 1715573; 2010 NSPC 18)

Indexed As: R. v. Eagles (E.)

Nova Scotia Provincial Court

Tax, P.C.J.

February 24, 2010.

Summary:

An employee fell off scaffolding. He died from his injuries. Eagles, the supervisor and foreman of the job site, was charged with three offences under sections of the Fall Protection and Scaffolding Regulations, contrary to s. 17(1) and s. 74(1)(a) of the Occupational Health and Safety Act. He was charged with: (1) failing to ensure that a guardrail was installed at the perimeter or open side of the work area where a person was exposed to the hazard of falling (Regulations, s. 7(1)), (2) failing to ensure that a guardrail was constructed or installed (Regulations, s. 9(2)(d)), and (3) failing to ensure that a work platform was securely fastened in place so as to prevent movement (Regulations, s. 20(1)).

The Nova Scotia Provincial Court, in a decision reported at 284 N.S.R.(2d) 256; 901 A.P.R. 256, convicted Eagles of the first and second offences but acquitted him of the third offence. The matter proceeded to sentencing.

The Nova Scotia Provincial Court ordered Eagles to donate $2,000 to the Public Education Trust Fund and make 18 presentations at various venues.

Trade Regulation - Topic 7902

Industrial safety - Particular offences - Sentences - Considerations on imposing sentence - The Nova Scotia Provincial Court stated that there were usually three primary sentencing principles for the court to consider in health and safety prosecutions: (1) deterrence, both specific and general; (2) retribution; and (3) rehabilitation/reform - The court discussed each of these principles - See paragraphs 20 to 37.

Trade Regulation - Topic 7902

Industrial safety - Particular offences - Sentences - Considerations on imposing sentence - An employee fell off scaffolding - He died from his injuries - Eagles, the supervisor and foreman of the job site, was convicted of two offences under sections of the Fall Protection and Scaffolding Regulations, contrary to s. 17(1) and s. 74(1)(a) of the Occupational Health and Safety Act - In sentencing Eagles, the Nova Scotia Provincial Court stated that contributory negligence was a factor that was open to the court to consider in the assessment of the penalty as it was relevant to the issue of the moral blameworthiness or criminality of the conduct of an individual accused person - It was appropriate for the sentencing judge to look at issues of contributory negligence or any intervening acts that played a significant role in the contravention of the Act or any injuries that occurred - See paragraphs 28 and 29.

Trade Regulation - Topic 7907

Industrial safety - Particular offences - Sentences - Failure to comply with Regulations under health and safety legislation - [See Trade Regulation - Topic 7908 ].

Trade Regulation - Topic 7908

Industrial safety - Particular offences - Sentences - Fines - An employee (Myles) fell 13 feet off scaffolding - He died from his injuries - Eagles, the supervisor and foreman of the job site, was convicted of failing to ensure that a guardrail was installed at the perimeter or open side of the work area where a person was exposed to the hazard of falling (Fall Protection and Scaffolding Regulations, s. 7(1) and contrary to s. 17(1) and s. 74(1)(a) of the Occupational Health and Safety Act) - He was also convicted of failing to ensure that an intermediate guardrail was constructed or installed (Regulations, s. 9(2)(d) and contrary to s. 17(1) and s. 74(1)(a) of the Act) - He was negligent in his inspection of the work area and for failing to properly supervise the labourer, who he had instructed to install the intermediate guardrail - Eagles was 47 years old - Married with two children - Long-term employee who his employer described as an ethical and excellent worker - Moderate income - Genuinely expressed regret and remorse and accepted responsibility - No prior health and safety convictions - Myles' family asked the court to consider measures that would make workplaces safer and healthier - Myles' own actions contributed to his fall off the platform - The Nova Scotia Provincial Court ordered Eagles to donate $2,000 to the Public Education Trust Fund and make 18 presentations at various venues - The degree of Eagles' moral blameworthiness was at the lower end of a continuum - He should not be required to shoulder the burden exclusively for all of the other acts which contributed to Myles' fall from the work platform - The focus on general deterrence and rehabilitation or reform, through creative sentencing, would have an educative effect to shift the attitude of people in the workplace and in the public generally.

Trade Regulation - Topic 7909

Industrial safety - Particular offences - Sentences - Failure to provide and maintain work platform - [See Trade Regulation - Topic 7908 ].

Cases Noticed:

R. v. Cotton Felts Ltd. (1982), 2 C.C.C.(3d) 287 (Ont. C.A.), refd to. [para. 9].

R. v. Nova Scotia Power Inc. (2008), 271 N.S.R.(2d) 341; 867 A.P.R. 341; 2008 CarswellNS 667 (Prov. Ct.), refd to. [para. 16].

R. v. Giant Yellowknife Mines Ltd., 1991 CarswellNWT 33 (Terr. Ct.), refd to. [para. 28].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 31].

R. v. Meridian Construction Inc. et al. (2005), 237 N.S.R.(2d) 58; 754 A.P.R. 58; 2005 NSPC 40, dist. [para. 53]; refd to. [para. 36].

R. v. London (D.) - see R. v. Meridian Construction Inc. et al.

R. v. Delgant 2000 Ltd. (2005), W.C.B.(2d) 61 (Ont. C.J.), dist. [para. 56].

R. v. DiFranco (P.) - see R. v. Delgant 2000 Ltd.

R. v. FKP Tool Manufacturing Ltd., 2003 CarswellOnt 6815 (C.J.), refd to. [para. 59].

R. v. Bradsil 1967 Ltd., 1994 CarswellOnt 4450 (C.J. Prov. Div.), refd to. [para. 59].

R. v. Ricklis Construction Ltd., 2003 CarswellOnt 1654 (C.J.), refd to. [para. 59].

Authors and Works Noticed:

Keith, Norman A., Canadian Health and Safety Law: A Comprehensive Guide to the Statutes, Policies and Case Law (2009) (Looseleaf), pp. 10-63, 10-76.1 to 10-76.4 [para. 20].

Counsel:

Peter Craig, for the Crown;

Donald Murray, Q.C., for the defence.

This sentencing was heard on January 22, February 5 and February 12, 2010, before Tax, P.C.J., of the Nova Scotia Provincial Court, who delivered the following decision orally on February 24, 2010.