In the Provincial Court of British Columbia
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File No: 29612-1 Registry: Fort St. John In the Provincial Court of British Columbia REGINA v. CANADIAN NATIONAL RAILWAY COMPANY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. A. DALEY COPY Crown Counsel: C. Hough Defence Counsel: M. Rowan Place of Hearing: Fort St. John, B.C. Date of Judgment: June 2, 2016 Gutah-Tria-Decision-EN.docx J.C. WordAssist Ltd. (Prince George) 188 Corless Crescent, Prince George, B.C. V2M 6B1 Phone 250-564-7970 R. v. Canadian National Railway Company 1 ______________________________________________________________ [1] THE COURT: These are my reasons for judgment in R. v. Canadian National Railway Company, British Columbia Provincial Court file number 29612, Fort St. John Registry. [2] These decisions are being delivered orally. Accordingly, I reserve the right to make editorial corrections and changes as such to any formal transcript that might be ordered. I will, for example, paraphrase the counts in the Information and in addition I will not in my oral reasons be giving full case citations. The transcript, of course, would include the full formal reference to the wording of the counts and the case citations. I have also used caption headings to assist the transcriber. BACKGROUND [3] The trial of this matter commenced on April 27, 2015. Following the closing of the Crown's case, the defendant made a no-evidence motion whereby it sought a directed verdict of acquittal with respects to Counts 2, 3 and 4. [4] The Information as laid charges the defendant as follows: Count 1: Canadian National Railway Company, on or about November 28, 2012, at or near Gutah Camp on the CN Fort Nelson Subdivision Line, approximately 160 kilometres north of Fort St. John, British Columbia, being an employer, did fail to ensure the health and safety of every person employed by it, namely: Bryan Johannes Giesbrecht, was protected, in violation of section 124 of the Canada Labour Code, and did thereby commit and offence contrary to subsection 148(1) of the Canada Labour Code. R. v. Canadian National Railway Company 2 ______________________________________________________________ Count 2: Canadian National Railway Company, on or about November 28, 2012, at or near Gutah Camp on the CN Fort Nelson Subdivision Line, approximately 160 kilometres north of Fort St. John, British Columbia, being an employer, did fail to ensure the health and safety of every person employed by it, namely: Bryan Johannes Giesbrecht, was protected, in violation of section 124 of the Canada Labour Code, which directly resulted in the death of Bryan Johannes Giesbrecht, and did thereby commit an offence contrary to subsection 148(2) of the Canada Labour Code. Count 3: Canadian National Railway Company, on or about November 28, 2012, at or near Gutah Camp on the CN Fort Nelson Subdivision Line, approximately 160 kilometres north of Fort St. John, British Columbia, being an employer, did fail to ensure that its employee Bryan Johannes Giesbrecht was made aware of every known or foreseeable health or safety hazard in the area where the employee works, in violation of paragraph 125(1)(s) of the Canada Labour Code, to wit: the existence on the north end of the siding at Gutah Camp of a second derail device approximately 734 feet south of the switch to the mainline, and did thereby commit an offence contrary to subsection 148(1) of the Canada Labour Code. Count 4: Canadian National Railway Company, on or about November 28, 2012, at or near Gutah Camp on the CN Fort Nelson Subdivision Line, approximately 160 kilometres north of Fort St. John, British Columbia, being an employer, did fail to ensure that its employee Bryan Johannes Giesbrecht was made aware of every known or foreseeable health or safety hazard in the area where the employee works, in violation of paragraph 125(1)(s) of the Canada Labour Code, to wit: the existence on the north end of the siding at Gutah Camp of a second derail device approximately 734 feet south of the switch to the mainline, which directly resulted in the death of Bryan Johannes Giesbrecht, and did thereby commit an offence contrary to subsection 148(2) of the Canada Labour Code. R. v. Canadian National Railway Company 3 ______________________________________________________________ [5] The court's ruling on the no-evidence motion was delivered orally on June 8, 2015. The court ruled in favour of the no-evidence motion with respect to Count 2 and the court directed a verdict of acquittal be entered on Count 2. [6] The trial resumed and the defendant presented its case. The last day of trial was August 4, 2015. The court received lengthy written submissions, complemented by oral submissions. The last oral submissions were entertained on December 29, 2015. [7] The court heard 17 days of trial, 77 exhibits were submitted to the court, and the court reserved its decision to today's date. OVERVIEW [8] The defendant is a large corporate entity whose operations include a rail line between Fort St. John and Fort Nelson in the northeastern corner of British Columbia. The rail line proceeds north from Fort St. John, and approximately 160 kilometres north of Fort St. John there is a siding called Gutah. [9] The train owned and operated by the defendant stopped at Gutah to execute a specified task. The train had two employees on board, Joseph Michael Lucas, the locomotive engineer, and Bryan Johannes Giesbrecht, the conductor. R. v. Canadian National Railway Company 4 ______________________________________________________________ [10] The train crew, Mr. Lucas and Mr. Giesbrecht, were tasked with setting off a fully loaded fuel car to replace an empty fuel car. The fuel was required to supply the work camp which is at Gutah. The workers live in railcars which are located on the track siding. The siding is a length of track well in excess of fifteen hundred feet that runs parallel to the main track and joins the main track at either end of the siding. [11] In the course of doing their job, the train stopped on the main track and Mr. Giesbrecht separated the rail cars. The fuel car was in the front group of rail cars which were attached to the engine car operated by Mr. Lucas. [12] Mr. Lucas and Mr. Giesbrecht were operating in conditions of darkness. Mr. Lucas was in the engine car at the front end and Mr. Giesbrecht was at the rear of the line of rail cars. They could not see each other but were in constant radio communication. [13] In order to accomplish the task, Mr. Lucas, as locomotive engineer, would shove the front group of rail cars onto the siding. Mr. Lucas, as per established job protocol, relied on Mr. Giesbrecht's radio-transmitted instructions prior to setting the train in motion. Mr. Giesbrecht informed Mr. Lucas, inter alia, that the railway -- that the derail device located close to the clearance point was off. R. v. Canadian National Railway Company 5 ______________________________________________________________ [14] The clearance point refers to where the siding joins the main track and is located on the siding just before it curves to join the main track. [15] A derail device is a safety feature to prevent the rail car or engine located on the siding from rolling onto the main track and causing a catastrophic accident. The derail device is always in the "on" position, and must be deactivated to prevent a derailment. Unless it has been deactivated, a derail device is intended, and in fact designed, to cause or result in a derailment. [16] Mr. Lucas, upon being given a formal instruction by Mr. Giesbrecht, then shoved rail cars a certain distance. I will delve into more detail in my summary of the evidence as to the exact words and exact sequence of events. [17] Suffice to say, for the purposes of this overview, that there was a second derail device which was left in the "on" position. The second derail device was approximately 515 feet south of the first derail device. The rail cars were shoved over the second derail and a rail car derailed. This rail car fell and killed Mr. Giesbrecht. CROWN THEORY [18] The Crown maintains in Count 1 that the defendant failed in its statutory duty to ensure Mr. Giesbrecht's health and R. v. Canadian National Railway Company 6 ______________________________________________________________ safety because the derail sign, in close proximity to the second derail, was deficient and provided insufficient warning. The most significant deficiency, Crown submits, is that the sign was non-reflective. [19] In Count 3, the Crown says that the defendant failed in its statutory duty to ensure that Mr. Giesbrecht was made aware of the existence of the second derail, and in Count 4, the Crown says it was this very failure to ensure Mr. Giesbrecht knew of the second derail which directly resulted in his death. POSITION OF DEFENDANT [20] The defendant concedes with respect to Count 1 that the derail sign was not reflective. Conversely, the defendant maintains that the sign was visible for more than ample time to fulfill its function of alerting a railroader as to the existence of the second derail. [21] As regards Counts 3 and 4, the defendant says that the Crown has not discharged the onus upon it to prove beyond a reasonable doubt that Mr. Giesbrecht did not know there was a second derail device. [22] In the alternative, the defendant submits that if the court is satisfied that the actus reus is established, in other words that the defendant has failed to ensure R. v. Canadian National Railway Company 7 ______________________________________________________________ Mr. Giesbrecht's safety and has failed to ensure that Mr.