View cases - Stewart McKelvey

15reasonable steps to avoid the particular event.” These are alternative aspects of thedefense. I will refer to them as “mistake of fact” and “all reasonable steps”. The secondof these predominates in the case law and in this sense is the more important.[45] In the general duty provision at hand, s.17 of the OHS Act, the actus reus of theoffence is the failure to take every reasonable precaution in the circumstances. TheCrown must prove the actus reus beyond a reasonable doubt. The second branch of adue diligence defense would have the defendant prove, on a balance of probabilities,that he took all reasonable steps to avoid the commission of the offence. Whether eitherburden is met is assessed on all the evidence at trial, led by both parties, regardless ofwhich party bears the legal onus. If “precautions” may be equated with “steps” and“every” to “all”, then “every reasonable precaution” equates to “all reasonable steps”.Being equivalent terms, if the Crown proves the absence of such beyond a reasonabledoubt, it is logically impossible for the Defense to establish the same proposition, on thesame evidence. In other words, if the Crown succeeds in proving the actus reus in ageneral duty provision such as s.17, which a court must first determine, any analysis ofthe “all reasonable steps” defense becomes moot and it should be unnecessary for acourt to consider it.[46] As an aside it may be noted that there are often matters which are known only toa defendant. This may invoke an evidentiary onus on the defendant to supply suchevidence at trial, if such matters are not already known through the Crown’s witnesses.[47] The Crown may, as a result, have a more difficult case “prime facie” case toprove where the offence charged is a general duty provision such as the one here. Itmust prove beyond a reasonable doubt that there were things which the defendantcould and should have done to protect health and safety that he did not do, things whicha reasonably prudent person in his position would have done. But if successful inmaking such a case, the Crown would cut the legs out from under the “all reasonablesteps” defense. As always, the Crown need not prove a mental element.[48] The “mistake of fact” aspect of due diligence may still, at least in a logical sense,be available, although it is not easy to conceive of such a situation. Perhaps if Mr. DellaValle had received subsequent credible, but mistaken, information that the HousingAuthority was actively taking appropriate measures to address the risks posed by theinsulation, such would (hypothetically) constitute a mistake of fact defense, excusing hisown failure to act.Omissions of the defendant