R. v. Riemer (L.), 2012 SKPC 119

• Judge: Morgan, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: August 01, 2012
• Jurisdiction: Saskatchewan
• Citations: 2012 SKPC 119;(2012), 402 Sask.R. 214 (PC)

R. v. Riemer (L.) (2012), 402 Sask.R. 214 (PC)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. AU.019

Her Majesty the Queen v. Lorry Riemer

(Information No. 24200198; 2012 SKPC 119)

Indexed As: R. v. Riemer (L.)

Saskatchewan Provincial Court

Morgan, P.C.J.

August 1, 2012.

Summary:

Riemer snagged a gas riser with his backhoe while demolishing some buildings, causing the service line connected to the riser to pull free of the main gas line. An explosion and fire resulted. Two people were killed and five others were seriously injured. Three buildings were destroyed and others were damaged. Riemer was charged that he: (1) failed to ensure that where an operation was to be undertaken involving the disturbance of soil within 600 millimetres of an existing pipeline, cable or conduit, that the pipeline, cable or conduit was exposed by hand digging or other approved method before mechanical excavating was allowed to begin within that area "contrary to section 259(2) of The Occupational Health and Safety Regulations, 1996 and did thereby contravene section 57(b) of The Occupational Health and Safety Act, 1993."; and (2) failed to conduct his undertaking in such a way as to ensure, insofar as was reasonably practicable, that he and workers, employed on or about the same place of employment, who might be affected by the undertaking, were not thereby exposed to risks to their health and safety "as is required by section 5(a) of The Occupational Health and Safety Act, 1993 and did thereby contravene section 57(b) of The Occupational Health and Safety Act, 1993." Count 2 should have referred to s. 57(a) of the Act. At the hearing, the defence first raised the issue at the argument stage, bringing an application to quash after all the evidence was in. The Crown applied to amend count 2 to refer to s. 57(a) of the Act and delete the reference to s. 57(b).

The Saskatchewan Provincial Court, in a decision reported at 397 Sask.R. 105, granted the defence leave to bring the application to quash but dismissed it. The court allowed the Crown's amendment application and convicted Riemer of both counts.

The Saskatchewan Provincial Court imposed a total fine of $28,000, being a global fine of $10,000 plus a 40% surcharge ($4,000) on each count.

Criminal Law - Topic 80

General principles - Res judicata (multiple convictions for same subject matter precluded) - Circumstances when defence may be raised - Riemer snagged a gas riser with his backhoe while demolishing some buildings, causing the service line connected to the riser to pull free of the main gas line - An explosion and fire resulted - Two people were killed and five others were seriously injured - Three buildings were destroyed and others were damaged - Riemer was convicted of: (1) failing to ensure that where an operation was to be undertaken involving the disturbance of soil within 600 millimetres of an existing pipeline, cable or conduit, that the pipeline, cable or conduit was exposed by hand digging or other approved method before mechanical excavating was allowed to begin within that area contrary to s. 259(2) of the Occupational Health and Safety Regulations, 1996, thereby contravening s. 57(b) of the Occupational Health and Safety Act, 1993; and (2) failing to conduct his undertaking in such a way as to ensure, insofar as was reasonably practicable, that he and workers employed on or about the same place of employment, who might be affected by the undertaking, were not thereby exposed to risks to their health and safety, as required by s. 5(a) of the Act, thereby contravening s. 57(a) - The Saskatchewan Provincial Court held that the two offences were separate and distinct and therefore R. v. Kienapple did not apply - In the context of the facts, there was an additional and distinguishing element in one offence that was not contained in the other - Count 1 contemplated the lack of a physical act of hand digging to expose a riser, and count 2 dealt with doing the complete undertaking, including the digging of the gas line, in an inappropriate fashion - See paragraphs 3 to 12.

Trade Regulation - Topic 7905

Industrial safety - Particular offences - Sentences - Failure to ensure health and safety of workers - Riemer snagged a gas riser with his backhoe while demolishing some buildings, causing the service line connected to the riser to pull free of the main gas line - An explosion and fire resulted - Riemer was convicted of: (1) failing to ensure that where an operation was to be undertaken involving the disturbance of soil within 600 millimetres of an existing pipeline, cable or conduit, that the pipeline, cable or conduit was exposed by hand digging or other approved method before mechanical excavating was allowed to begin within that area contrary to s. 259(2) of the Occupational Health and Safety Regulations, 1996, thereby contravening s. 57(b) of the Occupational Health and Safety Act, 1993; and (2) failing to conduct his undertaking in such a way as to ensure, insofar as was reasonably practicable, that he and workers employed on or about the same place of employment, who might be affected by the undertaking, were not thereby exposed to risks to their health and safety, as required by s. 5(a) of the Act, thereby contravening s. 57(a) - The Saskatchewan Provincial Court held that the two counts for which Riemer was convicted caused the death of two people and the serious injury of five others - Thus, the proper penalty section was s. 58(7) of the Act (maximum fine of $300,000) - The court imposed a total fine of $28,000, being a global fine of $10,000 plus a 40% surcharge ($4,000) on each count - The court considered, inter alia, that Riemer had a small operation; his primary occupation was as a farmer; and there was no indication that what he did was driven by a need or desire to increase his profit, beyond the normal desire to get a job done quickly - See paragraphs 13 to 50.

Trade Regulation - Topic 7907

Industrial safety - Particular offences - Sentences - Failure to comply with Regulations under health and safety legislation - [See Trade Regulation - Topic 7905 ].

Trade Regulation - Topic 7908

Industrial safety - Particular offences - Sentences - Fines - [See Trade Regulation - Topic 7905 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, appld. [para. 3].

R. v. J.C. (2008), 332 Sask.R. 45; 2008 SKPC 166, appld. [para. 4].

R. v. Galloway (R.) (2004), 249 Sask.R. 262; 325 W.A.C. 262 (C.A.), appld. [para. 4].

R. v. Westfair Foods Ltd., [2005] 10 W.W.R. 752; 263 Sask.R. 162; 2005 SKPC 26, appld. [para. 24].

R. v. Pederson (K.) (2000), 194 Sask.R. 102; 2000 SKQB 255, refd to. [para. 35].

Counsel:

M. Miller, for the Crown;

I. Carson, for the defendant.

This sentencing matter was heard at Nipawin, Saskatchewan, by Morgan, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on August 1, 2012.