R. v. Farnham (C.)

• Jurisdiction: Saskatchewan
• Court: Court of Appeal (Saskatchewan)
• Judge: Jackson, Whitmore and Ryan-Froslie, JJ.A.
• Citation: (2016), 485 Sask.R. 44 (CA),2016 SKCA 111
• Date: 30 August 2016

R. v. Farnham (C.) (2016), 485 Sask.R. 44 (CA);

    676 W.A.C. 44

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. SE.023

Her Majesty the Queen (appellant) v. Clint Farnham (respondent)

(CACR2476)

Clint Farnham (appellant) v. Her Majesty the Queen (respondent)

(CACR2478; 2016 SKCA 111)

Indexed As: R. v. Farnham (C.)

Saskatchewan Court of Appeal

Jackson, Whitmore and Ryan-Froslie, JJ.A.

August 30, 2016.

Summary:

The accused was charged with five offences under the Occupational Health and Safety Act and Regulations after one of his employees, a construction worker, suffered a cardiac arrest and died while hand trowelling a newly poured concrete floor. The trial judge found that the employee had been electrocuted by an electrified gas construction heater. The accused was acquitted on four of the charges but convicted on the fifth, which alleged that he caused the employee's death by failing to sufficiently and competently supervise the employee's work. The accused was fined $12,000 plus a $3,600 surcharge. The accused appealed his conviction and sentence.

The Saskatchewan Court of Queen's Bench, in a judgment reported (2014), 449 Sask.R. 163, allowed the conviction appeal and ordered a new trial. The Crown appealed. The accused cross-appealed, arguing that the Queen's Bench judgment could have been sustained on other grounds and that the Crown's application should have been dismissed rather than ordering a new trial.

The Saskatchewan Court of Appeal allowed the appeal, restored the trial conviction and remitted the matter to the Court of Queen's Bench to adjudicate the sentence appeal. The cross-appeal was dismissed.

Evidence - Topic 7000.1

Opinion evidence - Expert evidence - General - Expert witness - Disqualification - Conflict of interest - A worked died in a workplace accident - Two possible causes were carbon monoxide poisoning or electrocution (both from a gas heater) - Anthony was the assistant manager for Safety Services with the Occupational Health and Safety Branch of the Saskatchewan government who attended the job site to "investigate" the cause of death - At trial for offences under the Occupational Health and Safety Act and its Regulations, the trial judge qualified Anthony as an expert for the purpose of providing opinion evidence of the existence of an electrical hazard at the job site - The accused argued that Anthony should not have been qualified as an expert because he was poorly qualified, biased and not impartial because of his position - The Saskatchewan Court of Appeal held that there was no error in qualifying Anthony as an expert - There was no basis, other than his "role in the case", that he was not impartial, independent or biased - The court rejected the argument that Anthony's opinion was "unnecessary" because the pathologist testified to electrocution being the cause of death - The court stated that "whether expert evidence is 'necessary' is not determined by whether another witness might give similar testimony" - Anthony's testimony as to how and why an electrified gas hose was a hazard was within the scope of his expertise - The court stated that "whether a person can be seriously injured or killed by means of low-voltage electrocution speaks directly to the hazard that was alleged to have existed in this case. The mechanics of how that hazard would operate were thus within the scope of his delineated expertise" - See paragraphs 75 to 87.

Evidence - Topic 7000.2

Opinion evidence - Expert evidence - General - Expert witness - Disqualification - Bias - [See Evidence - Topic 7000.1 ].

Evidence - Topic 7000.5

Opinion evidence - Expert evidence - General - Nature and scope of - [See Evidence - Topic 7000.1 ].

Trade Regulation - Topic 7889

Industrial safety - Particular offences - Failure to provide information, instruction, training or supervision - [See Trials - Topic 1226 ].

Trade Regulation - Topic 7931

Industrial safety - Enforcement - Appeals (incl. standard of review) - [See Trials - Topic 1226 ].

Trials - Topic 1226

Summary convictions - Appeals - New trials - Grounds - General - A construction worker (Parker) suffered a cardiac arrest and died while hand trowelling a newly poured concrete floor - His employer (Farnham) was charged with offences under the Occupational Health and Safety Act and Regulations - There was evidence that Parker could have died from carbon monoxide poisoning, but a pathologist opined that Parker's death was consistent with electrocution - Both causes were linked to a gas heater located in the work area - The trial judge concluded that Parker died from electrocution, not carbon monoxide poisoning - Farnham was found guilty of failing to sufficiently and competently supervise Parker's work, thereby causing his death - The appeal court judge allowed Farnham's appeal and ordered a new trial - The appeal court judge held that the trial judge's verdict was unreasonable where (1) she failed to find that carbon monoxide poisoning was a second workplace hazard that could reasonably have caused Parker's death and (2) she failed to consider whether Farnham had sufficiently and competently supervised Parker's work with respect to the carbon monoxide hazard - The appeal court judge held that inferences or findings of fact were (1) plainly contradicted by the evidence from which they were drawn, and (2) demonstrably incompatible with evidence that was neither contradicted by other evidence nor rejected by the trial judge - The Saskatchewan Court of Appeal allowed the Crown's appeal and restored the conviction - The appeal court judge applied the wrong standard of review and erred in finding that the verdict was unreasonable - He merely substituted his view of the evidence for that of the trial judge - The trial judge made no palpable or overriding errors respecting fact findings - On the whole of the evidence, the trial judge's verdict was one which a properly instructed jury, acting judicially, could reasonably have rendered - See paragraphs 33 to 71.

Counsel:

W. Dean Sinclair, Q.C., for the appellant;

John Williams, for the respondent.

This appeal and cross-appeal were heard on December 16, 2015, before Jackson, Whitmore and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal.

On August 30, 2016, Ryan-Froslie, J.A., delivered the following judgment for the Court of Appeal.