Reasons for Judgment of the Honourable Madam Justice Levine:

[1] This is an application by the Crown for leave to appeal the acquittal of B.C. Tel on three counts of offences under the Canada Labour Code, in connection with the death of Brian McDougall, an employee of B.C. Tel. Mr. McDougall was electrocuted in 1997 while working near a live power line near Vanderhoof, B.C.

[2] The trial judge convicted B.C. Tel on one count and acquitted it on the other two counts. Both parties appealed. The summary conviction appeal court judge overturned the conviction and substituted an acquittal on B.C. Tel's appeal, and upheld the acquittal on the Crown's appeal. The Crown applies for leave to appeal the decision of the appeal judge on all three counts.

[3] Count 7 charged that B.C. Tel:

[4] Counts 13 and 14 charged that B.C. Tel:

[5] In 1997, the Canada Labour Code, R.S.C. 1985, c. L-2 provided:

[21] adopt and implement prescribed safety codes and safety standards;

[2] follow prescribed procedures with respect to the safety and health of employees;

[4] comply with all instructions from the employer concerning the safety and health of employees;

[6] In 1997, regulations 8.5 and 8.8 of the Canada Occupational Safety and Health Regulations ("COSH") provided:

[2] to ensure that all safety precautions and procedures are complied with.

[1] informed of his duties as a safety watcher and of the hazard involved in the work;

[2] trained and instructed in the procedures to follow in the event of an emergency;

[3] authorized to stop immediately a part of the work that he considers dangerous; and

[4] free of any other duties that might interfere with his duties as a safety watcher.

[7] Section 839 of the Criminal Code allows an appeal from a summary conviction appeal court to this Court, with leave, "on any ground that involves a question of law alone". The criteria for granting leave, as set out in R. v. McKenzie (1998), 100 B.C.A.C. 210 (B.C.C.A.) at para 5. are:

[8] B.C. Tel concedes that the appeal on count 7 involves a question of law, but says that the appeal on counts 13 and 14 involves a question of fact. It claims there are no issues raised of importance and there is no chance of success with respect to the appeals on any of the counts.

[9] The circumstances under which Mr. McDougall died are as follows: Mr. McDougall was "delashing" fibre optic cable from a "splice box" located on a "messenger", a B.C. Tel tensioned cable that supports other lines or wires. The messenger crossed 33.5 inches (0.85 metre) under a B.C. Hydro live power line at right angles. The splice box was 38 feet (11.6 metres) from the crossover point with the power line. The fibre optic cable was to be "delashed" and taken back to a telephone pole located 55 feet (16.8 metres) from the splice box, on the other side of the crossover point of the messenger and the power line. Mr. McDougall accessed the messenger from a bucket attached to a truck. Both the bucket and truck were uninsulated. The crossover point was directly over a farmer's driveway. Sometime during Mr. McDougall's work, the farmer arrived, with a bull in the back of his truck. At that moment, McDougall's head and neck hit the power line, and he died from electrocution.

[10] Although there were two other B.C. Tel employees at the site, they were working on the ground and did not see what happened. B.C. Tel's investigation indicated that it was likely that McDougall had moved the bucket close to the area of the power line in order to remove dangling cable from the farmer's driveway, forgot where he was and raised the bucket directly into the power line. This explanation was adopted by Mr. Timothy Thompson, the coordinator of occupational safety and health for B.C. Hydro, in his testimony at the trial.

[11] There was much evidence and analysis at trial and in the trial judge's reasons for judgment devoted to the question of whether Mr. McDougall was, or had to, operate inside of the 2.1 metres "limit of approach" set by B.C. Tel policy, or the 1.2 metres limit set by Regulation 8.5 under the COSH. B.C. Tel took the position that Mr. McDougall's work could be done outside of the limits of approach; that is, Mr. McDougall never had to get within 2.1 metres (or 1.2 metres) of the power line in order to delash the fibre optic cable. The Crown pointed out that Mr. McDougall was obviously within the limits when he was electrocuted.

[12] In stating the issue on count 7, the trial judge said (at p. 12) that the Crown had to prove that B.C. Tel failed to ensure "that its employee was made aware of every known or foreseeable safety hazard". He also cited B.C. Tel's view of the actus reas of the charge: "whether B.C. Tel failed to ensure its employee was made aware that the work he was to undertake was so close to electrical equipment as to constitute a dangerous workplace".

[13] The trial judge found (at p. 12) that Mr. McDougall was working so close to live electrical equipment that this constituted a dangerous work environment and, whether or not he was working within the limits of approach (1.2 metres or 2.1 metres), B.C. Tel had not made him aware of "every foreseeable safety hazard, such as distractions on a roadway where the cable was dangling" (at p. 16). [Emphasis added]

[14] The appeal judge found that the trial judge had convicted B.C. Tel on count 7 of an offence with which it was not charged. The offence charged was failure to ensure that its employee was made aware of every known or foreseeable safety hazard with regard to working near a live hydro power line having a voltage of 14,400 volts. The appeal judge held that the trial judge convicted B.C. Tel of a different offence -- failing to ensure that its employee was made aware of "every foreseeable safety hazard, such as distractions on a roadway where the cable was dangling."

[15] Since the charge specifically related to the dangers of working near the live power line, B.C. Tel is not guilty of the offence as long as its employee was aware of those dangers. The trial judge held that Mr. McDougall was aware that working in close proximity to a live power line was a dangerous work environment. He said (at p. 12):

[16] Thus, the appeal judge was correct in finding that the trial judge actually convicted B.C. Tel of an offence with which it was not charged.

[17] The question raised by the Crown on count 7 is an issue of law alone, but on a review of the reasons of the trial and appeal judges, I am of the view that the appeal on this issue has no reasonable chance of success. I deny leave to appeal the acquittal of B.C. Tel on count 7.

[18] The question on counts 13 and 14 is whether B.C. Tel was required, in the circumstances in which Mr. McDougall was working, to appoint a "safety watcher".

[19] The Crown tendered the evidence of Mr. Thompson, the B.C. Hydro safety officer. On cross-examination, Mr. Thompson agreed that B.C. Hydro would not need "a safety watcher to go up in the bucket to work on the messenger that you took a look at on this occasion". On reexamination, Mr. Thompson said that bearing in mind the truck was uninsulated and if Mr. McDougall was working within the limits of approach, a safety watcher would be assigned.

[20] The trial judge found that Mr. Thompson's testimony was ambiguous and since it was possible for Mr. McDougall's work to be carried out outside the limits of approach at all times, there was a reasonable doubt that a safety watcher was necessary.

[21] The appeal judge agreed that Mr. Thompson's testimony was ambiguous as to whether or not it was always necessary to appoint a safety watcher under the B.C. Hydro regulations (at para. 32). He then considered whether B.C. Tel's policy that qualified workers were not to work within the limits of approach satisfied the requirement of regulation 8.8 of COSH.

[22] After quoting the charge in counts 13 and 14, which is that B.C. Tel "failed to adopt and implement a prescribed safety standard, to wit:...by failing to appoint a safety watcher...", the appeal judge said (at para. 41):

[23] He went on to reason (at para. 42):

[24] As I understand his reasoning, it is that B.C. Tel's policy prevents the creation of "the condition or location of the work place" that makes it "necessary for the safety of the employee that the work be observed by a person not engaged in the work..." (regulation 8.8). Thus, because of the existence of the policy, he found that the failure to appoint a safety watcher did not contravene regulation 8.8.

[25] The appeal judge found that there was evidence to support the trial judge's finding that it was possible for Mr. McDougall to carry out the work outside of the limits of approach, and that the trial judge's reasonable doubt that a safety watcher was necessary was therefore "a rational conclusion arising from the whole of the evidence. This was not a conjectural possibility." The supportive evidence included that of Mr. Thompson, who testified that a momentary lapse by McDougall, while distracted by the arrival of the farmer and the bull, was the most likely explanation for what occurred.

[26] Crown counsel argues that the appeal judge failed to properly consider the words of regulation 8.8 in the context of the trial judge's finding that Mr. McDougall was working in a dangerous work place environment. He says that the facts are not in dispute; the issue is the application of the facts to the standard set out in regulation 8.8.

[27] Counsel for B.C. Tel says that the Crown's appeal of counts 13 and 14 does not raise a question of law. He says that the question before the trial judge required findings of fact with respect to the nature of the work or condition or location of the work place and the necessity of appointing a safety watcher.

[28] In my view, it is noteworthy that in considering the question of the necessity for a safety watcher, neither the trial judge nor the appeal judge appear to have considered whether the "location of the work" included the risk of distractions on the ground that might cause an employee to inadvertently fail to follow the employer's limits of approach policies. As pointed out by Crown counsel, while s. 126(1) of the Code requires every employee to follow prescribed procedures and comply with all instructions from the employer concerning safety, under s. 126(2), an employer is not relieved from its duty to implement prescribed safety standards, such as appointing a safety watcher where necessary.

[29] Crown counsel cited a number of authorities which discuss the issue of whether an appeal raises a question of law (R. v. Greyeyes (1997), 116 C.C.C. (3d) 334 at 349 (S.C.C.); R. v. Ewanchuk (1999), 131 C.C.C. (3d) 481 at 493 (S.C.C.); R. v. Araujo (2001), 149 C.C.C. (3d) 449 at 460 (S.C.C.); R. v. Dixon (1988), 42 C.C.C. (3d) 318 at 328 (B.C.C.A.)). In my view, the question of the application of the facts, as found by the trial judge, to the standard set out in regulation 8.8, and whether the appeal judge properly considered the standard, are questions of law.

[30] Crown counsel makes an additional argument on this application that was not made before either the trial judge or the appeal judge.

[31] Crown counsel argues that Mr. McDougall's work on the messenger was at all times in contravention of regulation 8.5, because he was in contact with the messenger and the messenger was within 1.2 metres of the power line. He says that in those circumstances, it is an error not to find the circumstances of the location of Mr. McDougall's work made it necessary that a safety watcher be appointed.

[32] Crown counsel's interpretation of regulation 8.5 makes the finding by the trial judge that it was possible that Mr. McDougall could do the work without his body coming within the limits of approach to the power line irrelevant. Since he was in contact with the messenger, and the messenger was within 1.2 metres of the power line, he was within the limits of approach to the power line as established by regulation 8.5.

[33] This argument raises an additional legal issue. In my view, the question of whether this argument should be considered should be decided not by a single judge, but by a panel of this Court.

[34] The seriousness of the event that gave rise to these charges satisfies me that the issues raised by the appeal are of sufficient importance to be heard. I cannot say that there is no reasonable possibility of success.

[35] The application by the Crown for leave to appeal the orders of the summary conviction appeal court judge is denied with respect to count 7 and granted with respect to counts 13 and 14.

"The Honourable Madam Justice Levine"