R. v. McGuire (A.N.), (1994) 147 N.B.R.(2d) 341 (PC)

• Judge: Brien, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: Monday January 10, 1994
• Jurisdiction: New Brunswick
• Citations: (1994), 147 N.B.R.(2d) 341 (PC)

R. v. McGuire (A.N.) (1994), 147 N.B.R.(2d) 341 (PC);

    147 R.N.-B.(2e) 341; 375 A.P.R. 341

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Her Majesty The Queen v. Anthony Neil McGuire

(22333-03)

Indexed As: R. v. McGuire (A.N.)

New Brunswick Provincial Court

Brien, P.C.J.

January 10, 1994.

Summary:

The accused employer pleaded guilty to violating s. 181(1) of Regulation 91-191 under the Occupational Health and Safety Act by failing to properly support the walls of a trench, thereby committing an offence under s. 9(1)(b) of the Act. A trench col­lapsed, trapping and killing the accused's nephew.

The New Brunswick Provincial Court fined the accused $2,000 and imposed six months' probation, with a condition that the accused personally communicate with other similar contractors to alert them of the dangers of noncompliance with the Regulations respect­ing trenches.

Trade Regulation - Topic 7903

Industrial safety - Particular offences - Sentences - Probation - [See Trade Regulation - Topic 7915].

Trade Regulation - Topic 7915

Industrial safety - Particular offences - Sentences - Failure to support or slope trenches - The accused employer operated a small business with limited income - An employee (accused's nephew) died when a trench collapsed - The trench was not supported as required by the Occupational Health and Safety Act and Regulations - The accused pleaded guilty - Positive pre-sentence report - No previous convictions - Accused remorseful - Specific deter­rence was unnecessary, but general deter­rence was paramount - It was a competi­tive business and profits got in the way of safety - The accused was not familiar with the safety requirements of the Regulations - The danger of trench collapses was known and tragedy usually resulted from a collapse - The New Brunswick Provincial Court fined the accused $2,000 and im­posed six months' probation, with the condition that the accused take all reason­able efforts by personal communication to alert other contractors in a similar business of the danger of failing to comply with the Regulations respecting trenches.

Cases Noticed:

R. v. Cotton Felts Ltd. (1982), 2 C.C.C.(3d) 287 (Ont. C.A.), consd. [para. 29].

R. v. Ramdass (1982), 2 C.C.C.(3d) 247 (Ont. C.A.), refd to. [para. 31].

R. v. Roussy (1977), 2 W.C.B. 72 (Ont. C.A.), refd to. [para. 31].

R. v. Case Enterprises Ltd. et al. (1994), 147 N.B.R.(2d) 180; 375 A.P.R. 180 (Prov. Ct.), refd to. [para. 81].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, generally [para. 62].

Occupational Health and Safety Act, S.N.B. 1983, c. O-0.2, sect. 47(1) [para. 1].

Provincial Offences Procedure Act, S.N.B. 1987, c. P-22.1, sect. 46(1)(c) [para. 87].

Counsel:

David Lutz, for the accused;

Keith McCormick, for the Crown.

This case was heard before Brien, P.C.J., of the New Brunswick Provincial Court, who delivered the following judgment orally on January 10, 1994.