Criminal Law and Penal

On August 11, 2023, the Court of Appeal of Quebec handed down a decision in CFG Construction inc. c. R.,1 dismissing the appeal of the guilty verdict against an employer, CFG Construction inc. (“CFG”), for criminal negligence having caused the death of one of its employees. This decision serves as a reminder of the potential criminal liability of an employer, depending on its legal form, for the death or bodily injury of its employees in the workplace. More specifically, the case provides unique insight into the sanctioning of an “organization,” a term that includes a body corporate or an association of persons,2 for faults committed by a “senior officer” under the Criminal Code (“Cr.C.”). The facts The decision stems from a fatal accident that occurred on September 11, 2012, on the site of a wind farm in Saint-Ferréol-les-Neiges, involving a heavy container truck owned by CFG. The truck flipped over on a downhill curve, killing the driver, a CFG employee with 25 years of experience as a truck driver. At the trial, emphasis was placed on the maintenance of the truck and its braking system. The case A number of decisions were rendered in this case. Regarding criminal liability, the Court of Québec handed down two judgments, one finding CFG guilty and the other establishing the sentence. On February 14, 2019, CFG was found guilty of criminal negligence causing the death of the aforementioned truck driver. Essentially, the Court found that CFG’s failure to perform maintenance on the truck, which it had a legal obligation to do, constituted a [translation] “marked and significant departure from the conduct expected of a reasonable person, given the nature and circumstances of the activity in question”.3 For instance, the truck involved in the accident had 14 major pre-existing defects, all of which related to its braking system.4 The Court was decisive in establishing CFG’s liability through its foreman-mechanic, whom it considered to be a “senior officer” within the meaning of the Cr.C., and whose faults could be ascribed to CFG in this case,5 as explained below. On December 3, 2019, CFG was fined $300,000, plus a victim surcharge of 15% of the fine, and placed on a three-year probation with many conditions. This decision brings to light the factors to consider in sentencing an organization, as well as the only penalty that may be imposed, namely a fine of any amount in the case of a criminal act.6 Among these factors, the court must consider “any advantage realized by the organization as a result of the offence”.7 In this regard, failure to incur the necessary expenses to perform maintenance on a vehicle driven by an employee may be construed as an “advantage” for the employer-owner and is considered an aggravating factor in sentencing.8 Case law on this subject is “tenuous”, but fines ranging from $100,000 to $750,000 have been given in various situations.9 The notion of “senior officer” set out in the Criminal Code In its decision, the Court of Appeal provides the historical context that led to the inclusion of a legal mechanism in the Cr.C. governing the liability of organizations for death and bodily injury in the workplace. In 2003, Parliament passed Bill C-45, An Act to amend the Criminal Code (criminal liability of organizations) further to the 1992 tragedy at the Westray mine in Nova Scotia, where 26 miners were killed after methane detectors were disconnected with mine supervisors’ knowledge.10 Among the key amendments central to the CFG case, sections 217.1 and 22.1 of the Cr.C. provide not only for the legal obligation of any person who directs or has the authority to direct how another person does work or performs a task to take reasonable steps to prevent bodily harm to that person, but also for the possibility of holding an organization “liable” for an offence of negligence by reason of the actions of certain persons working for it, either a “representative” or a “senior officer,” as these terms are defined in section 2 of the Cr.C. The CFG case as a whole is an example of how the aforementioned legal mechanism applies where an employee considered to be a “senior officer” departs from the reasonable standard of care expected in the circumstances. As mentioned above, CFG was found guilty because of the important role that the head mechanic played, in that he had the authority to carry out the maintenance required on vehicles, including on the defective truck.11 As a result, CFG was legally obliged to ensure that the mechanic had the skills to do the work and provide him with the necessary instructions and equipment, as well as an adequate work environment.12 In short, it is important to remember that: The term “senior officer” refers to “a representative who plays an important role in the establishment of an organization’s policies or is responsible for managing an important aspect of the organization’s activities and, in the case of a body corporate, includes a director, its chief executive officer and its chief financial officer”.13 This definition [translation] “does not only include senior executives and a company’s board of directors”.14 Ultimately, an employee will be considered as a “senior officer” according to the functions s/he performs and the responsibilities s/he assumes in a given organization.15 Finally, the Court of Appeal points out that failure to fulfill the legal obligation set out in section 217.1 of the Cr.C. does not, in and of itself, constitute an offence.16 In the circumstances of this case, failure to comply with the aforementioned section along with the provisions on criminal negligence causing death provide the basis for CFG’s guilt, which constitutes the defining characteristic of this “positive” obligation in criminal law. In this regard, section 22.1 of the Cr.C. serves as the basis for CFG’s liability insofar as the organization was a “party to the offence” given the role that its mechanic played in the matter. Conclusion The CFG case shows how criminal negligence in the workplace is condemned outside of the penal provisions applicable under Quebec’s labour laws. Incidentally, the notion of “senior officer” within the meaning of these laws should not be confused with that codified in the Cr.C. While the former is limited in scope, the term “senior officer” in the Cr.C. is defined more broadly to include, in addition to directors and senior executives, other persons who play a significant role in leading or managing a given area of activity within an organization. Note that in this case, CFG’s guilt could have resulted from the conduct of more than one representative or senior officer.17 It is also important to remember that the extent to which proceedings in such matters involve natural persons rather than organizations, or extend to every person who may be held liable, is a matter of prosecutorial discretion. 2023 QCCA 1032. “organization,” section 2 of the Cr.C. Supra note 1 at para. 10 (as the Court of Appeal pointed out, the analytical framework for determining criminal negligence was updated further to the decision of the Supreme Court of Canada in R. v. Javanmardi, 2019 SCC 54). R. c. CFG Construction inc., 2019 QCCQ 1244, para. 141. Ibid, paras. 255 and 285. R. c. CFG Construction inc., 2019 QCCQ 7449, paras. 84 and 149. Section 718.21a) of the Cr.C. Supra note 6, para. 91. Ibid, paras. 163 to 167. Supra note 1, paras. 60 and 62. Supra note 4, para. 35. Ibid, para. 381. “senior officer”, section 2 of the Cr.C. Supra note 4, para. 256. Ibid. Supra, note 1, para. 73. Ibid, para. 72; see also supra note 6, para. 14.

The March 22, 2017 Budget of the Government of Canada, through its “Innovation and Skills Plan” (http://www.budget.gc.ca/2017/docs/plan/budget-2017-en.pdf) mentions that Canadian academic and research leadership in artificial intelligence will be translated into a more innovative economy and increased economic growth. The 2017 Budget proposes to provide renewed and enhanced funding of $35 million over five years, beginning in 2017–2018 to the Canadian Institute for Advanced Research (CIFAR) which connects Canadian researchers with collaborative research networks led by eminent Canadian and international researchers on topics including artificial intelligence and deep learning. These measures are in addition to a number of interesting tax measures that support the artificial intelligence sector at both the federal and provincial levels. In Canada and in Québec, the Scientific Research and Experimental Development (SR&ED) Program provides a twofold benefit: SR&ED expenses are deductible from income for tax purposes and a SR&ED investment tax credit (ITC) for SR&ED is available to reduce income tax. In some cases, the remaining ITC can be refunded. In Québec, a refundable tax credit is also available for the development of e-business, where a corporation mainly operates in the field of computer system design or that of software edition and its activities are carried out in an establishment located in Québec. This 2017 Budget aims to improve the competitive and strategic advantage of Canada in the field of artificial intelligence, and, therefore, that of Montréal, a city already enjoying an international reputation in this field. It recognises that artificial intelligence, despite the debates over ethical issues that currently stir up passions within the international community, could help generate strong economic growth, by improving the way in which we produce goods, deliver services and tackle all kinds of social challenges. The Budget also adds that artificial intelligence “opens up possibilities across many sectors, from agriculture to financial services, creating opportunities for companies of all sizes, whether technology start-ups or Canada’s largest financial institutions”. This influence of Canada on the international scene cannot be achieved without government supporting research programs and our universities contributing their expertise. This Budget is therefore a step in the right direction to ensure that all the activities related to artificial intelligence, from R&D to marketing, as well as design and distributions, remain here in Canada. The 2017 budget provides $125 million to launch a Pan-Canadian Artificial Intelligence Strategy for research and talent to promote collaboration between Canada’s main centres of expertise and reinforce Canada’s position as a leading destination for companies seeking to invest in artificial intelligence and innovation. Lavery Legal Lab on Artificial Intelligence (L3AI) We anticipate that within a few years, all companies, businesses and organizations, in every sector and industry, will use some form of artificial intelligence in their day-to-day operations to improve productivity or efficiency, ensure better quality control, conquer new markets and customers, implement new marketing strategies, as well as improve processes, automation and marketing or the profitability of operations. For this reason, Lavery created the Lavery Legal Lab on Artificial Intelligence (L3AI) to analyze and monitor recent and anticipated developments in artificial intelligence from a legal perspective. Our Lab is interested in all projects pertaining to artificial intelligence (AI) and their legal peculiarities, particularly the various branches and applications of artificial intelligence which will rapidly appear in companies and industries. The development of artificial intelligence, through a broad spectrum of branches and applications, will also have an impact on many legal sectors and practices, from intellectual property to protection of personal information, including corporate and business integrity and all fields of business law. In our following publications, the members of our Lavery Legal Lab on Artificial Intelligence (L3AI) will more specifically analyze certain applications of artificial intelligence in various sectors and industries.

On October 3 2016, Table Justice-Québec, a roundtable organization grouping the main actors of the law and justice community in Quebec, made public its action plan and proposed 22 measures relating to the administration of justice in Quebec. One of the subjects discussed by the participants to this roundtable was that of increasing the use of alternative dispute resolution measures, such as the non-judicial processing of several adult offences and alternative measures for teenagers. Is it not now time for applying similar measures to legal persons through the implementation of a deferred proceedings program for enterprises? The deferred proceedings agreement, already implemented in several countries such as the United States and England, is defined as a negotiation procedure used in the context of penal and administrative proceedings. When a person collaborates with the prosecuting authority, either by acknowledging the facts giving rise to matter, by paying compensation or a fine or performing rehabilitation, the prosecuting attorney abandons the proceedings pending against that person. As early as 1970, this type of diversion, better known in Quebec as alternative measures for minors or diversion program for adults was put to the test in the context of a pilot project. Moreover, since 1995, a diversion program applicable to some criminal offences applies at the DPCP (Direction des poursuites criminelles et pénales) and also municipal courts. This diversion program allows the prosecutor under the authority of the DPCP to deal with the matter on a non-judicial basis (DPCP directive NOJ-1). Hence, various factors are taken into consideration for the application of the diversion program, such as the specific circumstances in which the offence was committed (degree of premeditation, subjective seriousness, particularly as to the consequences of the offence from the victim’s point of view, degree of participation of the alleged perpetrator and the interest of justice, degree of collaboration, risk of recurrence). Sending a warning letter (or a formal notice only used in the case of breach of a probation order containing a repayment condition) is the mean used to apply this program. The application of this diversion measures program directly reduces congestion in the courts and allow them to process other types of matters more speedily. However, this program does not apply to matters involving legal persons. Enterprises (as well as individuals) who run afoul of penal justice currently cannot avail themselves of the opportunity to avoid judicial proceedings. In the wake of the Jordan case1, would it not be time to implement such a measure for enterprises? In this case, the Supreme Court of Canada reminded all participants in the criminal justice system that they had to make efforts and coordinate in order to make additional structural and procedural changes. The highest court of Canada ordered a stay of the proceedings against Mr. Jordan since he had had to wait for 49 months (between the charges being laid and him being found guilty) to know the outcome of his case. The Supreme Court created a new analysis framework to determine what is a reasonable period of time for undergoing trial within the meaning of section 11(b) of the Canadian Charter of Rights and Freedoms. According the Court, changes must be made. Accordingly, it is highly important for the judicial system to make substantial efficiency gains. In the light of these teachings, it seems to us that public authorities must now consider the implementation of alternative measures for enterprises. Moreover, concerning the advisability of instituting proceedings, it is important to note that DPCP directive ACC-3 currently requires the prosecutor to consider the existence of an alternative solution. Therefore, to the current requirement that prosecutors consider the application of the diversion program in the case of natural persons who committed criminal offences, should be added that of considering the application of a similar program to legal persons. The very efficiency of our judicial system, which, like any other public institution, has limited financial resources, is at stake. Why wait? R c. Jordan 2016 CSC 27 08-07-16.

This publication was authored by Luc Thibaudeau, former partner of Lavery and now judge in the Civil Division of the Court of Québec, District of Longueuil. The title of this newsletter gives a good summary of the explanatory notes that serve as an introduction to Bill 14, entitled An Act to amend the Charter of the French language, the Charter of human rights and freedoms and other legislative provisions (the “Bill”). The legislator is concerned that English is being used systematically in certain workplaces. The Bill was tabled on December 5, 2012 and the proposed amendments are designed to reaffirm the primacy of French as the official and common language of Quebec.