Fredericton workplace death was 'preventable', Crown says in closing arguments at criminal negligence case

The defence for a man charged with criminal negligence said their client had no knowledge that one of his workers would be going back into the hole where he ultimately died at a Fredericton waste-treatment plant.

However, the Crown in Jason King's criminal negligence trial said King failed to take any reasonable steps to ensure Michael Henderson, 18, wouldn't go into the hole where he drowned on Aug. 16, 2018.

"The way we see it, this is really a case of Jason's King choice to prioritize convenience over safety, and it's remarkable to see how preventable this case was," said Crown prosecutor Patrick McGuinty, in New Brunswick Court of King's Bench in Burton, near Fredericton, on Tuesday.

The defence and the Crown delivered closing arguments Tuesday at King's trial for criminal negligence causing death.

The judge-alone trial lasted three weeks and heard from several witnesses, including King himself, who was employed by Springhill Construction and was the supervisor for the project at the time.

Testimony revealed the work involved constructing a large concrete pool-like structure, known as a clarifier, at the City of Fredericton's sewage plant on Barker Street.

The clarifier had a hole in the middle, and at the bottom of that hole was a horizontal pipe running several metres to the bottom of a nearby manhole.

In the weeks leading up to Henderson's death, King discussed plans to use a large inflatable plug to seal the horizontal pipe and then fill the manhole with water to test whether the pipe was watertight.

On the morning of Aug. 16, Henderson was cleaning out the bottom of the hole at the centre of the clarifier.

Jason King started filling the manhole with water shortly before noon that day and kept it running as Henderson and other workers went for lunch.

Henderson resumed work around 12:30 p.m, and shortly before 1 p.m. the plug slid out of the pipe while he was in the hole, pinning him to the wall as water rose above his head. He remained under water for several minutes before first responders were able to free him.

Defence says King mitigated risk

At the outset of her argument, defence lawyer Sabrina Winters discussed the bar that must be met for Justice Thomas Christie to find King guilty.

She said the Crown must prove that King's actions represented a "marked departure" from what a reasonable supervisor would have done given the circumstances.

Winters, in her argument, relied upon King's own testimony given at trial, which was that he had no knowledge Henderson was going back into the hole after he started filling the manhole.

"I don't think we have enough evidence to say why Henderson went back into the hole … but we can say that it was not within the knowledge of Mr. King," she said.

Winters also drew on King's testimony that he told another worker, who had been paired with Henderson that day, about the leak test that was underway and that there was no need for more work to be done in the hole that afternoon.

"[King] recognized there was a risk there and took steps to mitigate those," Winters said.

Crown argues King did nothing to prevent death

Arguing after Winters, McGuinty cast doubt on King's testimony about whether he knew Henderson was back in the hole, by drawing on other evidence revealed during the trial.

"What we say is without question, Jason King knew Michael Henderson was in the hole that afternoon," McGuinty said.

"The reason we say that is the truth … is [King] said it three times in his statement to WorkSafe."

McGuinty argued King not only knew Henderson was going back into the hole after lunch, but that he also failed to tell Henderson about the leak test he was carrying out and the possible dangers posed by working in the hole while that was happening.

"So our position is that Jason King didn't take any steps to make sure Michael Henderson was told water was being introduced and that nobody should be in the hole, and he took no steps to ensure that would be the case."

Following closing arguments from both parties, Christie said he expects to share his decision by next Friday.