



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kazenelson, 2018 ONCA 77

DATE: 20180130

DOCKET: C61543

Simmons, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vadim Kazenelson

Appellant

Brian H. Greenspan and Louis P. Strezos, for the
    appellant

Deborah Krick, for the respondent

Heard: December 13, 2017

On appeal from the conviction entered on June 26, 2015,
    with reasons reported at 2015 ONSC 3639, 122 W.C.B. (2d) 341, and the sentence
    imposed on January 11, 2016, with reasons reported at 2016 ONSC 25, 128 W.C.B.
    (2d) 76, by Justice Ian A. MacDonnell of the Superior Court of Justice, sitting
    without a jury.

Lauwers J.A.:

A.

Overview

[1]

Following a judge alone trial, the appellant was
    convicted of four counts
of criminal negligence causing death and one
    count of criminal negligence causing bodily harm. The charges arose from an
    incident in which five workers employed by Metron Construction Incorporated (Metron)
    fell more than 100 feet to the ground when the swing stage
[1]
on which they were working suddenly collapsed. None of these workers was
    attached to a lifeline as required by both provincial law and industry
    practice. Tragically, four of these workers, including the site foreman, died; the
    fifth worker suffered serious permanent injuries. A sixth worker, Shoruh
    Tojiddinov, had tied himself off to one of two lifelines available on the swing
    stage and, as a result, did not fall when the swing stage collapsed.

[2]

The appellant was Metron's project manager. The trial judge found that
    he was with the workers on the swing stage when it collapsed, but was holding
    onto one of the lifelines, and he managed to grab an adjacent balcony and pull
    himself to safety.

[3]

The trial judge also made the following critical findings concerning the
    appellant:

·

he had the authority to direct the workers who were on the swing
    stage (a fact conceded by the appellant both at trial and on appeal);

·

he became aware, well in advance of the swing stage collapse,
    that there were only two lifelines available on the swing stage for the six
    workers working their way down the building from the top floor;

·

knowing that fall protection was available for a maximum of two
    persons, he not only did nothing to rectify that situation, he permitted all
    six workers to board the swing stage with their tools in circumstances where he
    had no information concerning the weight capacity of the swing stage.

[4]

Under s. 219 of the
Criminal Code
, everyone is criminally
    negligent who  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.

[5]

Section 217.1 of the
Criminal Code
imposes a duty upon
    everyone who 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 or any other person arising from that work or task.

[6]

The trial judge concluded that the appellants failure to take any steps
    to prevent the workers from boarding the swing stage in the above-noted
    circumstances constituted a breach of his duty under s. 217.1 and showed a
    wanton and reckless disregard for their lives and safety, thus amounting to
    criminal negligence.  In addition, he concluded that the appellants failure to
    ensure that each worker had a lifeline was a significant contributing cause of
    the harm that resulted. He therefore convicted the appellant of four counts of
    criminal negligence causing death and one count of criminal negligence causing
    bodily harm.

[7]

The trial judge
imposed a sentence of three and a half
    years on each count to be served concurrently. Mr. Kazenelson appeals both
    conviction and sentence.

[8]

I would dismiss the appeal. The trial judges reasons
    for conviction and sentence are clear and the chain of reasoning is rooted
    firmly in his findings of fact. He made no legal or other errors. The appellant
    largely repeated arguments considered and dismissed by the trial judge.

B.

The Conviction Appeal

[9]

The trial judges consideration of the applicable law relating to
    criminal negligence starts at para. 108 and extends over many paragraphs. The
    appellant did not take issue with the trial judges self-instruction. The trial
    judge summarized the
actus reus
at para. 111, noting that the Crown
    must prove that: Mr. Kazenelson had the authority to direct how the
    workers employed by Metron did work or performed a task; he failed to take
    reasonable steps to prevent bodily harm to those workers; and in failing to do
    so he showed wanton or reckless disregard for their lives or safety. Counsel
    focused on the last element, and drew the courts attention to the decision of
    Hill J. in
R. v. Menezes

(2002), 50 C.R. (5th) 343, [2002] O.J.
    No. 551 (Ont. Sup. Ct.), at para. 72:

Criminal negligence amounts to a wanton and reckless disregard
    for the lives and safety of others. This is a higher degree of moral
    blameworthiness than dangerous driving. This is a marked and substantial
    departure in all of the circumstances from the standard of care of a reasonable
    person. The term wanton means "heedlessly" or "ungoverned"
    and "undisciplined" or an "unrestrained disregard for
    consequences". The word "reckless" means "heedless of
    consequences, headlong, irresponsible". [Citations omitted.]

Counsel agreed that for the purpose of a prosecution
    under s. 217.1 of the
Code
, the reasonable person should be taken to
    be the reasonable supervisor.

[10]

The
    appellant made two arguments that the verdict was unreasonable. The context for
    the appellants first argument is that this was the first conviction of an
    individual supervisor under s. 217.1 of the
Code
. He argued that the
    approach of the trial judge stretches penal negligence too far and that his
    conduct simply did not rise to the high level of criminal negligence. He
    added that, even assuming a breach of s. 217.1, his acts or omissions did not
    show a wanton and reckless disregard for the workers. This rendered the
    verdict unreasonable:

[T]he trial judge failed to
    consider the acts of the workers in not securing more life lines and the fact
    that a life line was available when the stage was boarded, but not utilized,
establishing
    that neither the Appellant nor the workers adverted to the objective
    foreseeability of the risk of collapse
. In this context, it cannot be said
    the acts or omissions of the Appellant constituted a wanton or reckless
    disregard for their safety. [Emphasis in original.]

[11]

More
    particularly, the appellant argued that the trial judge did not consider the
    other circumstances that were objective and contextual markers of the high
    fault required for criminal negligence, which the appellant identified as the
    following:

·

The workers had worked on drop 5/6 [a descending row of balconies
    on the building face] for the entire day, apparently not adverting to the risk
    of mechanical failure of the swing stage;

·

The absence of foreseeability that the swing stage was so
    deficiently manufactured to the extent that it would have collapsed under its
    own weight;

·

When the workers boarded the stage, none of them, other than
    Tojiddinov, saw any need to utilize the available life line; and

·

Mr. Kazenelson himself boarded the stage (on the trial judges
    findings) without either a fall arrest system and, like the other workers,
    without even attempting to secure himself to the available life line.

[12]

I
    would not give effect to this argument. As the appellant acknowledged, the
    question for the trial judge was whether the appellants conduct constituted a
    marked and substantial departure from what
a reasonable supervisor
would have done in the circumstances. The trial judge identified the
    circumstances relevant to this question at para. 127 of his reasons:

The fundamental rule requiring fall arrest protection for each
    worker on a swing stage is a reflection of the simple fact that suspended
    access equipment can fail. The risk of such a failure is brought home to everyone
    who undergoes the suspended access training provided by the CSAO. Mr.
    Kazenelson had not only taken that training, he had followed it up with a
    course equipping him with the ability to train others. I am satisfied that he
    knew that swing stages are not fail safe. When he returned to the job site in
    the afternoon of December 24th, he became aware that six of his workers were
    more than 100 feet above the ground using a swing stage with only two
    lifelines. Not only did he fail to do anything to rectify this fundamental
    breach of the
Construction Regulation
, the standards of the
    Construction Safety Association, and industry practice, he permitted the
    workers, at the end of the day, to board the swing stage with all of their
    tools. The recklessness of his conduct was exacerbated by the fact that he had
    no information with respect to the capacity of the stage and thus no way of
    knowing whether it was capable of carrying the weight of all seven persons who
    boarded it. His conduct can only be characterized as a wanton and reckless
    disregard for the lives and safety of the workers and as a marked and
    substantial departure from what a reasonable supervisor would have done in the
    circumstances.

[13]

In
    any event, the trial judge addressed these contextual markers relied on by
    the appellant a number of times in various sections of his analysis, including at
    paras. 18, 114, 129-130, and 142-143.

[14]

As
    to the unexpected failure of the swing stage, the trial judge found, at para. 146,
    in the section of his analysis addressing causation:

The relevant question, therefore, is whether a reasonable
    project manager would have contemplated the risk of equipment failure "as
    part of the general risk involved" in failing to provide lifelines for
    workers on a swing stage suspended 100 feet or more above the ground. In my
    opinion, the only possible answer to that question is yes. The risk of
    equipment failure was not only an objectively foreseeable risk, it was
    virtually the entire reason why the provision of a fall arrest system was regarded
    as the fundamental rule of swing stage work. The failure of the swing stage,
    even if unexpected, was not an event that was outside the ambit of the general
    risk animating the requirement for a fall arrest system. It is not necessary
    that the precise cause of the failure have been foreseen. [Footnote omitted.]

[15]

Similarly,
    in addressing whether the actions of the workers broke the chain of causation
    through their failure to use the one available lifeline, and in failing to
    insist that sufficient lifelines for all of them be provided as the law
    requires, the trial judge found, at para. 148:

The premise underlying the defence submission is that the
    workers were solely responsible for their safety. That premise runs head-on
    into s. 217.1 of the
Criminal Code
and ss. 27(1)(a) and [2](c) of
OHSA
.
    The former provision puts a duty on persons like Mr. Kazenelson to take
    reasonable steps to prevent bodily harm to workers. The latter provisions
    require such persons "to take every precaution reasonable in the circumstances"
    for the safety of workers and, more specifically, to ensure that a worker
    "works in the manner and with the protective devices, measures and
    procedures required by [the] Act and the regulations".

[16]

There
    is no legal error in the trial judges expression, understanding, or
    application of the legal test for criminal negligence. I would agree with his
    assessment, which was amply supported by the facts.

[17]

The
    appellants second argument that the verdict was unreasonable was that the
    trial judge misapprehended the evidence. In particular:

The trial judge failed to address
    the evidence of the Crowns main witness, Mr. Tojiddinov that when the stage
    collapsed he and the other workers were working on the 12
th
floor,
    and then engaged in impermissible speculation that was not supported by the
    evidence that the workers and Mr. Kazenelson had begun to descend from the 13
th
floor and this engaged in speculative and illogical reasoning that was
    essential to his path of conviction.

[18]

The appellant submitted that the trial judge made the error identified
    by the Supreme Court in
R. v. Beaudry
, 2007 SCC 5, [2007] 1 S.C.R. 190,
    which establishes that a verdict is unreasonable if an inference or finding of
    fact essential to the verdict is shown to be incompatible with evidence that
    was not otherwise contradicted or rejected. The appellant takes particular aim
    at what he describes as the trial judges central finding that the appellant
    was on the 13
th
floor with the workers before the swing stage collapsed,
    which meant he must have boarded the swing stage with the workers  and is in
    contrast to the appellants position that he was on the 12
th
floor
    at the time of the collapse and that he never boarded the swing stage. The
    trial judge stated, at para. 21 of the conviction reasons:

However, I am satisfied beyond a reasonable doubt that upon his
    return in the afternoon Mr. Kazenelson became aware, well in advance of the
    collapse of the stage, that that there were only two lifelines available for
    the six workers who were working their way down from the top of the building.
    Mr. Kazenelson was aware of that because when he returned he joined the workers
    as they continued to pour concrete, and when he joined them they were either on
    or above the 13
th
floor. He could only have joined them at that
    level by taking the swing stage from the ground or from the 12
th
floor, and in either case it would have been obvious to him when he boarded the
    stage that there were only two lifelines. Indeed, the defence urged me to
    accept the evidence that when Mr. Kazenelson joined the workers he asked
    [the site foreman] Mr. Fazilov
why
there were only two lifelines.
    [Emphasis in original.]

[19]

The
    appellant submits that the trial judge ignored important aspects of the
    evidence of the witness, Mr. Tojiddinov, who was the one worker wearing a lifeline
    and whom the appellant pulled to safety onto the 12
th
floor balcony
    after the swing stage collapsed. The appellant pointed to three aspects in his
    factum: first, Mr. Tojiddinovs evidence that he was pulled back onto the same
    balcony that he fell from; second, Mr. Tojiddinovs rope grab was on the 12
th
floor; and third, Mr. Tojiddinovs evidence as to the duration of the collapse was
    either that it took 15-20 seconds or that it happened instantaneously.

[20]

Counsel
    sharpened the points in oral argument. First, he pointed out that the trial
    judges conclusion in para. 21 assumed the appellant had sufficient time to remedy
    the absence of lifelines when he noticed it. But the appellant argues that the
    collapse, as admitted by Mr. Tojiddinov in cross-examination, was virtually
    immediate after the site foremans, Mr. Fazilovs, response to the appellants
    question, asking why there were only two lifelines.

[21]

Even
    more significant is the second and related point. The appellant disputes the
    trial judges finding, at para. 101, that the appellant was hanging onto the 12
th
floor balcony. He also disputes the trial judges finding as to how the
    appellant got back onto the balcony from the collapsing swing stage. He argues
    that the finding is implausible, because it would have required superhuman
    gymnastics skills on the appellants part, especially in view of the expert
    evidence that the stage collapsed outwards from the building. He asserted:
    Thats a feat that is superhuman.

[22]

Counsel
    argues that the evidence instead supports a finding that the appellant was
    never on the swing stage. If that is true, then the window of his opportunity
    to notice the missing lifelines would narrow to the few moments he was on the
    balcony when he put the question about the missing lifelines to Mr. Fazilov,
    just before the swing stage collapsed.

[23]

I
    would not give effect to the argument that the trial judge misapprehended the
    evidence. He stated the central issues in similar terms to the argument before
    us at paras. 67-69.

[24]

The
    trial judges key findings were set out at paras. 101-103:

According to Mr. Tojiddinov, however, Mr. Kazenelson explained
    that "...he was holding on to the balcony, holding on to the lifeline, and
    he had just enough time to climb over." There is nothing implausible about
    that explanation. It would have been sensible for Mr. Kazenelson to be
    holding onto Tojiddinov's lifeline if he was not attached to one himself, and
    sensible to maintain manual contact with the balcony as the stage began to
    descend. As I said earlier, Mr. Tojiddinov's evidence as to what Mr. Kazenelson
    told him finds support in the statement that Mr. Kazenelson made to Marissa
    Ortiz - that he had been 'hanging' on or from the balcony after the collapse.

Once it is accepted that Kazenelson was on the 13
th
floor balcony prior to the workers boarding the stage, then completely apart
    from Mr. Tojiddinov's testimony the only reasonable inference is that Mr.
    Kazenelson used the swing stage to get there (either by having it sent down to
    ground level or by having it collect him on the 12
th
floor) and that
    he was on the swing stage when it collapsed. However, and in any event, the
    circumstantial evidence provides compelling confirmation for Tojiddinov's account.

I am satisfied beyond a reasonable doubt that Kazenelson was on
    the stage at the time of the collapse.

[25]

This
    set of findings follows a long development in the reasons starting at para. 65.
    Counsel for the appellant agreed that it was appropriate for the trial judge to
    treat Mr. Tojiddinov essentially as a
Vetrovec
witness in considering
    whether his evidence could support a conviction.

[26]

The
    trial judge noted that Mr. Tojiddinovs trial evidence, which placed the
    appellant on the swing stage, was inconsistent with evidence he had given to
    the police and to Ministry of Labour investigators. On this basis, he noted, at
    para. 70, that: There are many reasons to be concerned about the credibility
    and reliability of Mr. Tojiddinov's account of the material events. At para.
    77, the trial judge found that reliance on his evidence would be dangerous.
    Accordingly, he noted: Before acting on his testimony, I agree, I should be
    satisfied that there is confirmation for it. He then added: I am satisfied,
    however, that there is substantial confirmation for the material portions of
    his account.

[27]

The
    trial judge pointed to a number of items of the evidence to substantiate this
    observation, which he listed in para. 79 of the reasons, and also in his review
    of the evidence of Marissa Ortiz and Mykhaylo Chernikov. There is no point in
    excerpting the lengthy text of the discussion. The conclusion the trial judge
    reached, at para. 96, is amply substantiated:

On the totality of the evidence - the circumstantial evidence,
    the evidence of Chernikov, the evidence of Ortiz, and the evidence of
    Tojiddinov - I am satisfied beyond a reasonable doubt that Mr. Kazenelson was
    on the 13
th
floor balconies with the workers.

[28]

While
    counsel challenged many of the factual findings and the trial judges use of the
    circumstantial evidence and the evidence of Ms. Ortiz and Mr. Chernikov, he did
    so from the perspective of his central argument that Mr. Kazenelsons escape
    from the falling swing stage was a superhuman feat. But the finding that it was
    plausible was open to the trial judge on the evidence, which he analyzed at
    great length. We find no palpable and overriding error in his analysis of the
    circumstantial evidence or the evidence of Ms. Ortiz and Mr. Chernikov.

[29]

The
    trial judge then evaluated the evidence as to whether the appellant was on the
    swing stage at the time of its collapse. To repeat, he stated, at para. 102,
    that the circumstantial evidence provides compelling confirmation for
    Tojiddinov's account, which placed the appellant on the stage. He concluded at
    para. 103: I am satisfied beyond a reasonable doubt that Kazenelson was
    on the stage at the time of the collapse.

[30]

In
    his summary of the factual findings, the trial judge set out the narrative he
    found at para. 107(ix):

After pouring concrete on the 13
th
floor, the
    workers loaded their tools onto the swing stage in preparation for the trip to
    ground level. Mr. Kazenelson assisted them in that regard. Then, Mr. Fazilov,
    the five other workers and Mr. Kazenelson all boarded the stage. The only
    person who tied off to a lifeline was Mr. Tojiddinov. Mr. Kazenelson was
    the last person to board. I am satisfied that the motors were engaged, that the
    stage began to descend and that it descended several feet before the two centre
    modules of the stage separated, the stage collapsed, and Fayzullo Fazilov,
    Aleksey Blumberg, Vladimir Korostin, Aleksandrs Bondarevs and Dilshod Marupov
    fell 100 feet or so to the ground. Mr. Tojiddinov, the only person who was tied
    off to a lifeline, was left dangling in mid-air. Mr. Kazenelson, who had been
    holding on to Tojiddinov's lifeline, managed to scramble onto the balcony of
    apartment 1205.

[31]

The
    trial judge related the law to the facts at paras. 108-130, and, as noted
    above, stated, at para. 127:

When [the appellant] returned to the job site in the afternoon
    of December 24
th
, he became aware that six of his workers were more
    than 100 feet above the ground using a swing stage with only two lifelines. Not
    only did he fail to do anything to rectify this fundamental breach of the
Construction
    Regulation
, the standards of the Construction Safety Association, and
    industry practice, he permitted the workers, at the end of the day, to board
    the swing stage with all of their tools. The recklessness of his conduct was
    exacerbated by the fact that he had no information with respect to the capacity
    of the stage and thus no way of knowing whether it was capable of carrying the
    weight of all seven persons who boarded it. His conduct can only be
    characterized as a wanton and reckless disregard for the lives and safety of
    the workers and as a marked and substantial departure from what a reasonable
    supervisor would have done in the circumstances.

[32]

As
    to the issue of timing raised by the appellant, the trial judge rejected the argument
    that the appellant had no opportunity to address the safety infractions once he
    knew of them because the swing stage collapsed immediately. This is especially
    clear in para. 44 of his sentencing reasons:

While the evidence was in conflict
    with respect to how long he was with the workers prior to the collapse, it was
    at least half an hour and it may have been up to two hours. From the moment he
    joined them, he was aware that they were working 100 feet or more above the
    ground without lifelines. His duty to take steps to rectify this dangerous
    situation was fully engaged, and it remained engaged for some time. He not only
    did nothing, he permitted all six workers to board the stage together with
    their tools, and he did so in circumstances where he had no information with
    respect to the capacity of the stage to safely bear the weight to which it was
    being subjected. [Footnote omitted.]

[33]

In
    my view, the trial judge fully and adequately addressed the factual issues in
    the case and the conclusion to which their resolution led him. I can discern no
    palpable and overriding errors, no errors in principle in his approach to the
    facts, and no errors in his approach to the applicable law or his application
    of it. I do not agree that upon a full consideration of the record the factual
    conclusions reached by the trial judge are implausible.

[34]

I
    would dismiss the conviction appeal.

C.

The Sentence Appeal

[35]

This
    court should approach a sentence appeal mindful of the highly deferential
    standard of review applicable in sentencing cases, as this court observed in
R.
    v. Orwin
, 2017 ONCA 841, 142 W.C.B. (2d) 319, at para. 51. The court
    noted: Except where the sentencing judge has made an error of law or of
    principle that has an impact on the sentence imposed, we may not vary the
    sentence unless it is demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64,
    [2015] 3 S.C.R. 1089, at para. 11.

[36]

As
    noted, the trial judge
imposed a sentence of three and a half
    years on each count to be served concurrently.
He stated, at para. 23 of
    his sentencing reasons:

[I]t is common ground that a term
    of imprisonment is necessary to adequately denounce Mr. Kazenelson's
    conduct and to deter other persons with authority over workers in potentially
    dangerous workplaces from breaching the legal duty set forth in s. 217.1 of the
Code
to take reasonable steps to prevent bodily harm from befalling
    those workers.

[37]

The
    appellant submitted that the trial judge erred in law and in principle, and
    imposed a sentence that is unfit. A fit sentence, according to the appellants
    factum, would have been 12-18 months, but in oral argument counsel for the
    appellant said a threshold penitentiary sentence of two years would have been
    fit. Such a sentence would have met the sentencing objectives of denunciation
    and general deterrence.

[38]

The
    appellant argues that the trial judge made three specific errors in the way he
    approached sentencing. First, the trial judge failed to properly consider the
    conduct of the workers in considering a fit sentence. Specifically, he erred
    in holding, at para. 27 of his sentencing reasons, that their conduct could be
    more accurately described as an absence of an aggravating feature rather than
    as the presence of a mitigating one. The appellant submits that the workers
    were contributorily negligent, and that their contributory negligence should
    have served to decrease the appellants moral blameworthiness. The trial judge
    considered and rejected this argument, concluding at para. 28 of his sentencing
    reasons:

However, to mitigate the breach on
    the basis of the victims' awareness of the danger or the absence of overt
    coercion would ignore the reality that a worker's acceptance of dangerous
    working conditions is not always a truly voluntary choice. It would also tend
    to undermine the purpose of the duty imposed by s. 217.1 of the
Criminal
    Code
, which is to impose a legal obligation in relation to workplace
    safety
on management
. [Emphasis in original.]

[39]

I
    would agree.

[40]

The
    second sentencing error, the appellant submits, is that the trial judge placed
    too much emphasis on general deterrence than was appropriate for a first-time
    offender. The appellant had a momentary lapse in judgment, contrasted with his
    history of safety compliance, so that his moral blameworthiness did not
    require the sentence imposed. The appellant argues that the trial judges
    emphasis should have been on the fact of imprisonment, not its length. General
    deterrence has been accomplished; the construction industry is well aware of
    this case, which has also led to regulatory changes. The elements of
    denunciation and deterrence were further served by the length of the trial.

[41]

I
    would not give effect to this argument. The trial judge bore these factors in
    mind. He recognized, at para. 41, that: Apart from his breach of duty in this
    case, Mr. Kazenelson is unquestionably a person of good character. He
    considered, at para. 42, that: The search for the appropriate sentence in this
    case must be guided by the fundamental principle that the penalty be proportionate
    to the gravity of the offences and the degree of responsibility of the
    offender. In his view, expressed at para. 43, the seriousness of the offences
    committed by Mr. Kazenelson and their consequences cannot be doubted: four men
    lost their lives and a fifth suffered devastating and life-altering injuries.
    While acknowledging that the appellants breach of duty was not part of an
    on-going pattern of conduct, the trial judge observed, at para. 44, that his
    breach of duty was more than a momentary lapse.

[42]

The
    trial judge reached the conclusion, at para. 45, that:

[A] significant term of imprisonment is necessary to reflect
    the terrible consequences of the offences and to make it unequivocally clear
    that persons in positions of authority in potentially dangerous workplaces have
    a serious obligation to take all reasonable steps to ensure that those who
    arrive for work in the morning will make it safely back to their homes and
    families at the end of the day.

[43]

This
    led the trial judge to reject the sentence proposed by the defence.

[44]

The
    third sentencing error made by the trial judge, according to the appellant, is
    related to the second. He found that a seriously aggravating circumstance,
    which he developed in paras. 31-32, and then summed up in para. 44 of the
    sentencing reasons:

[T]his is not a case where the finding of criminal negligence
    rests on a failure to advert to a risk to the lives and safety of the workers -
    Mr. Kazenelson adverted to the risk, weighed it against Metron's interest in
    keeping the work going, and decided to take a chance. That is a seriously
    aggravating circumstance in relation to the moral blameworthiness of his
    conduct.

[45]

The
    trial judge was clearly troubled by a patent incongruity. On the one hand, as
    he noted at para. 10, the rule that each worker had a lifeline was scrupulously
    enforced until the day of the tragedy, to the point that, as one worker
    testified, if Mr. Kazenelson had caught him working on a swing stage without
    being tied off to a lifeline he would have been fired. On the other hand, only
    one out of six workers using the swing stage on December 24 was tied off, to
    the appellants knowledge and in his presence. The trial judge drew the
    inference, at para. 32, that the delay in dropping more lifelines would have pushed
    the deadline out of reach, so the appellant abandoned his duty.

[46]

I
    agree with the appellant that this inference is not entirely consistent with
    the trial judges earlier findings that the appellant first noticed the safety
    breaches at the end of the work day. He noted in para. 107(ix) of the
    conviction reasons: After pouring concrete on the 13
th
floor, the
    workers loaded their tools onto the swing stage in preparation for the trip to
    ground level. He repeated this at para. 127: [the appellant] permitted
    the workers, at the end of the day, to board the swing stage with all of their
    tools.

[47]

That
    said, it was not unreasonable for the trial judge to draw the inference, on the
    totality of the facts, that the desire to complete the work that day led the
    appellant to compromise his duties. At para. 21 of his reasons, the trial judge
    found that the appellant became aware, well in advance of the collapse of the
    stage, that there were only two lifelines available for the six workers who
    were working their way down from the top of the building.  Moreover, I am not
    persuaded that the sentence would be unfit, even in the absence of this
    aggravating factor.

[48]

Taken
    together, the trial judge wrestled anxiously and carefully with the issue of
    the appellants moral blameworthiness and its effect on the sentence. I see no
    error in principle and no merit in the argument that the sentence is unfit. I
    would dismiss the sentence appeal.


D.

Disposition

[49]

I
    would dismiss the appeal.

Released:

JS                                                   P.
    Lauwers J.A.

JAN 30 2018                                    I agree
    Janet Simmons J.A.

I
    agree G. Pardu J.A.





[1]

A swing stage is a platform used to ascend and descend the
    exterior of a building. In this instance, the swing stage was a modular model
    made up of four ten-foot platforms bracketed together and was operated by
    motors on each end of the platform.


