A Crime of (No) Intent: Criminal Negligence


Last week, the case of Vadim Kazenelson, a construction company project manager overseeing work that led to the deaths of four employees and serious injuries to a fifth employee, garnered a great deal of media attention (see: http://www.thestar.com/news/crime/2016/01/11/construction-manager-gets-prison-in-scaffold-deaths.html).

From all perspectives, this is a tragic case. On December 24, 2009, workers from Metron Construction were working to repair balconies on an apartment building located at 2757 Kipling Avenue in the GTA. The company was behind schedule but highly motivated to finish the job quickly, as Metron Construction was due a $50,000 bonus if the project were to be completed by December 31, 2009 (http://www.cbc.ca/news/canada/toronto/scaffolding-collapse-criminally-responsible-vadim-kaznelson-1.3397597).

A crew of six workers was on a “swing stage” positioned 13 stories above ground level as they worked on balconies. Unable to withstand the combined weight of the workers, the platform split apart. Four men—Aleksey Blumberg, 32, Alexander Bondorev, 25, Vladimir Korostin, 40, and site supervisor Fayzullo Fazilov, 31—were not wearing lifelines and fell to their deaths (http://www.thestar.com/news/crime/2016/01/11/construction-manager-gets-prison-in-scaffold-deaths.html). At the time of the tragedy, there were only two lifelines available. The two individuals wearing lifelines survived, though one man, Dilshod Marupov, then 22, suffered serious injuries because he was only partially secured (http://www.thestar.com/news/crime/2016/01/11/construction-manager-gets-prison-in-scaffold-deaths.html). The other worker, who was properly secured by the other lifeline, was physically uninjured.

Kazenelson was also there at the time the swing stage collapsed; he survived by managing to hold on to a balcony on the 13th floor (http://www.cbc.ca/news/canada/toronto/scaffolding-collapse-criminally-responsible-vadim-kaznelson-1.3397597).

An investigation led to a number of charges.

 

Metron Construction was charged with criminal negligence causing death. The company received a fine of $750,000 after pleading guilty to criminal negligence causing death (http://www.thestar.com/news/crime/2016/01/11/construction-manager-gets-prison-in-scaffold-deaths.html). Joel Swartz, the company’s owner, was also fined a total of $112,500 after pleading guilty to a number of charges under Ontario’s Occupational Health and Safety Act (these are quasi-criminal offences, like traffic tickets, rather than criminal offences).

The manufacturer of the swing stage was also fined $350,000 and one of that company’s directors was fined $50,000 (http://www.thestar.com/news/crime/2016/01/11/construction-manager-gets-prison-in-scaffold-deaths.html).

Kazenelson was charged with five criminal offences: four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.

Kazenelson “was not part of the original decision to have six workers high above ground with only two lifelines,” as one of the men who died in the tragedy, site supervisor Fazilov, “made that call earlier in the day”  (http://www.thestar.com/news/crime/2016/01/11/construction-manager-gets-prison-in-scaffold-deaths.html). Nevertheless, the judge determined that he “was aware that fall protections were not in place” and still allowed his workers to board the swing stage (http://www.theglobeandmail.com/news/toronto/project-manager-guilty-of-five-criminal-charges-in-scaffolding-collapse-deaths/article25137196/).

The judge found that Kazenelson should have corrected the situation by insisting that the workers not commence the work without lifelines (http://www.thestar.com/news/crime/2016/01/11/construction-manager-gets-prison-in-scaffold-deaths.html).

By not doing so, the judge found that Kazenelson’s actions—or rather, inactions in this case—met the Criminal Code definition of criminal negligence. The definition is found at section 219(1) of the Criminal Code: “Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.” (The “duty” component is informed by laws and regulations relevant to a particular situation—in this case, laws and regulations relating to workplace health and safety and the construction industry were particularly relevant.)

Although Kazenelson did not explicitly intend to do something criminal in this case (and despite that fact that he himself was nearly killed in the incident), his failure to live up to the expectations of a construction manager in this case led to multiple criminal convictions and a jail sentence of three and a half years. This sentence was imposed despite the following information:

“The judge noted that Kazenelson, a Russian-born veteran of the Israeli military, had no prison record and is ‘hard working, conscientious and safety-minded.’ He added that the father of three has shown real remorse and is unlikely to commit a crime again. Kazenelson also had a reputation of being a boss who would fire workers for safety infractions…”

 

It is worth noting that criminal negligence causing death can, in some cases, result in imprisonment for life (section 220(b) of the Criminal Code).

It is vital to remember that not all criminal offences require proof of criminal intention to commit a particular act. Serious consequences can—in certain circumstances—flow from omissions as well.


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About Brandon Trask

Brandon Trask is a regular blog contributor and former colleague of Daniel Murphy and currently a doctoral student at the University of Toronto’s Faculty of Law. He was formerly a Crown Attorney in Newfoundland and Labrador. Brandon holds law degrees from the University of Manitoba and the University of Toronto.