R. v. McPhee (D.J.), 2013 NSPC 77

• Judge: MacQuarrie, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: February 22, 2013
• Jurisdiction: Nova Scotia
• Citations: 2013 NSPC 77;(2013), 334 N.S.R.(2d) 31 (PC)

R. v. McPhee (D.J.) (2013), 334 N.S.R.(2d) 31 (PC);

    1059 A.P.R. 31

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. SE.020

Her Majesty the Queen v. Darren Joseph McPhee

(2418449; 2013 NSPC 77)

Indexed As: R. v. McPhee (D.J.)

Nova Scotia Provincial Court

MacQuarrie, P.C.J.

February 22, 2013.

Summary:

The accused was the project supervisor at a congested construction site adjacent to a highway. There was vehicular traffic, pedestrians and bicyclists present. A boom truck, entering the site's driveway, ran over and killed a 12 year old boy on a bicycle on the sidewalk. The driver did not see the boy because his sight line was blocked by a dump truck illegally parked on the wrong side of the road, half on the road and half on the sidewalk. The accused admitted that there was no designated traffic control at the site and no discussion or procedure to address hazard assessment or pedestrian traffic. This was the first project the accused supervised and he had no formal safety training. The accused was charged with failing to take reasonable precautions to ensure the health and safety of persons at or near the construction site (Occupational Health and Safety Act, ss. 15(a), 74(1)(a)).

The Nova Scotia Provincial Court found the accused guilty of the strict liability offence.

Trade Regulation - Topic 7874

Industrial safety - Offences - Defences - Due diligence - [See Trade Regulation - Topic 7883.1 ].

Trade Regulation - Topic 7883.1

Industrial safety - Particular offences - Failure to take adequate precautions to ensure safety of pedestrian or other person at or near workplace - The accused was the project supervisor at a congested construction site adjacent to a highway - There was vehicular traffic, pedestrians and bicyclists present - A boom truck, entering the site's driveway, ran over and killed a 12 year old boy on a bicycle on the sidewalk - The driver did not see the boy because his sight line was blocked by a dump truck illegally parked on the wrong side of the road, half on the road and half on the sidewalk - The accused admitted that there was no designated traffic control at the site and no discussion or procedure to address hazard assessment or pedestrian traffic - This was the first project the accused supervised and he had no formal safety training - The Nova Scotia Provincial Court found the accused guilty of the strict liability offence of failing to take reasonable precautions to ensure the health and safety of persons at or near the construction site (Occupational Health and Safety Act, ss. 15(a), 74(1)(a)) - The illegal or negligent act of the dump truck driver did not remove the accused's legislated obligation - The risk to pedestrians was reasonably foreseeable - The defence of due diligence failed where no steps, let alone all reasonable steps, were taken to protect pedestrian traffic on the sidewalk.

Cases Noticed:

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 94].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 101].

R. v. Della Valle (J.E.) (2011), 308 N.S.R.(2d) 105; 976 A.P.R. 105; 2011 NSPC 67, refd to. [para. 118].

R. v. Eagles (E.) (2009), 284 N.S.R.(2d) 256; 901 A.P.R. 256; 2009 NSPC 49, refd to. [para. 121].

Authors and Works Noticed:

Keith, Norm, Canadian Health and Safety Law (2012), p. 1-29 [para. 125].

Counsel:

Peter Craig, for the Crown;

Kevin Patriquin, for the accused.

This matter was heard on November 19-21, 2012, at Port Hood, N.S., before MacQuarrie, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment on February 22, 2013.