R. v. Rosin (S.), (2005) 273 Sask.R. 114 (QB)

• Judge: Ball, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: December 21, 2005
• Jurisdiction: Saskatchewan
• Citations: (2005), 273 Sask.R. 114 (QB);2005 SKQB 537

R. v. Rosin (S.) (2005), 273 Sask.R. 114 (QB)

MLB headnote and full text

Temp. Cite: [2006] Sask.R. TBEd. JA.013

Sye Rosin (appellant) v. Her Majesty the Queen (respondent)

(2005 Q.B.G. No. 1434; 2005 SKQB 537)

Indexed As: R. v. Rosin (S.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Ball, J.

December 21, 2005.

Summary:

An accident at the accused's workplace resulted in the death of an 18 year old employee. The employee was crushed between the bucket lever arms and the body of a loader.

The Saskatchewan Provincial Court, in a decision reported at [2005] Sask.R. Uned. 64, convicted the accused of failing to ensure the health, safety and welfare of his workers as required by s. 3(a) of the Occupational Health and Safety Act. The accused was also found guilty of two other counts under the Act, but a judicial stay was entered with respect to those counts by operation of the Kienapple principle.

The Saskatchewan Provincial Court, in a decision reported at 267 Sask.R. 154, sentenced the accused to a $30,000 fine plus a 15% surcharge, for a total of $34,500. The accused appealed from the conviction and sentence.

The Saskatchewan Court of Queen's Bench dismissed the conviction appeal, but allowed the sentence appeal. The court imposed a $15,000 fine plus a 15% victim fine surcharge, for a total penalty of $17,250.

Evidence - Topic 4713

Witnesses - Examination - Cross-examination - Right to - Denial of - The accused's employee was killed when he was crushed between the bucket lever arms and the body of a loader - The accused was convicted of an offence under the Occupational Health and Safety Act - The accused appealed, arguing that the trial judge's interference with defence counsel's cross-examination of a Crown witness justified a new trial - The witness was an experienced heavy duty mechanic who examined the loader after the accident - Defence counsel had sought to question the witness with respect to the defence theory that a second person must have been present for the accident to have occurred - The trial judge refused to allow the questions, expressing concern that the Crown was not relying on the witness's opinion as an expert and that the matter had not been raised by the Crown - The Saskatchewan Court of Queen's Bench dismissed the appeal - Defence counsel's questions were within the witness's area of expertise to testify and the defence should have been permitted to ask further questions - However, the trial judge's intervention could not reasonably have affected the outcome of the trial - See paragraphs 6 to 24.

Evidence - Topic 7005

Opinion evidence - Expert evidence - General - Range of cross-examination - [See Evidence - Topic 4713 ].

Practice - Topic 9229

Appeals - New trials - Grounds - Interference by trial judge - [See Evidence - Topic 4713 ].

Trade Regulation - Topic 7902

Industrial safety - Particular offences - Sentences - Considerations on imposing sentence - [See Trade Regulation - Topic 7905 ].

Trade Regulation - Topic 7905

Industrial safety - Particular offences - Sentences - Failure to ensure health and safety of workers - An accident at the accused's workplace killed an 18 year old employee - The employee was crushed between the bucket lever arms and the body of the accused's loader - The accused was convicted of failing to ensure the health, safety and welfare of his workers as required by s. 3(a) of the Occupational Health and Safety Act - He was sentenced to a $30,000 fine plus a 15% surcharge, for a total of $34,500 - The Saskatchewan Court of Queen's Bench allowed an appeal from the sentence and imposed a $15,000 fine plus a 15% victim fine surcharge, for a total of $17,250 - The court considered that: the accused was elderly, in poor health, and of modest means; he earned relatively little from his small snow removal business; he stopped using the loader after the accident and had discontinued the snow removal business; he was remorseful; he had never been convicted of an offence under the Act; and the evidence did not support a conclusion that he knew the full extent of the risk and danger created by the loader - See paragraphs 34 to 45.

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, refd to. [para. 4].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43, refd to. [para. 12].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 12].

R. v. Andres, [1982] 2 W.W.R. 249; 1 Sask.R. 96 (C.A.), refd to. [para. 28].

Lensen v. Lensen, [1987] 2 S.C.R. 672; 79 N.R. 334; 64 Sask.R. 6, refd to. [para. 28].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417, refd to. [para. 28].

R. v. Westfair Foods Ltd. (2005), 263 Sask.R. 162; 2005 SKPC 26, refd to. [para. 35].

R. v. Cotton Felts Ltd. (1982), 2 C.C.C.(3d) 287, refd to. [para. 35].

R. v. Pederson (K.) (2000), 194 Sask. R. 102; 2000 SKQB 255, refd to. [para. 36].

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. 39].

Counsel:

David G. MacKay, for the appellant, Sye Rosin;

Chris Sabat, for the respondent Crown.

This appeal was heard before Ball, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on December 21, 2005.