J. Cote and Son Excavating Ltd.– A Renewed Interest in Criminal Negligence Prosecutions for Regulated Industries

“Every company and senior officer must understand that a marked and substantial failure to take reasonable precautions may result in severe financial penalties. A substantial penalty is necessary to convey to organizations that might recklessly disregard the need for caution in high-risk work that the law will tolerate no shortcuts when it comes to worker safety.”

The British Columbia Supreme Court’s recent decision in R v J. Cote and Son Excavating Ltd., 2025 BCSC 2540, and the subsequent sentencing decision 2026 BCSC 626 (together referred to as J. Cote and Son), considers the applicability of the criminal negligence provisions of the Criminal Code. These provisions have rarely been invoked to date. However, in light of recent trends to increase regulatory enforcement and seek personal liability for those involved, we expect to see more charges of criminal negligence going forward.

J. Cote and Son arose out of an incident where a construction worker was killed and another seriously injured in Burnaby when a retaining wall collapsed on them while they were working in a utility trench. The company and the supervisor faced charges of criminal negligence causing death and bodily harm, while the supervisor was also charged with manslaughter. Although the incident occurred in 2012, the trial did not take place until 2025, spanning 48 days of trial. In December 2025, the company was convicted of criminal negligence causing death and criminal negligence causing bodily harm, while the supervisor was acquitted of all charges.

The sentencing decision was subsequently issued on April 15, 2026. Crown had sought a global penalty of $1 million, including fines and victim surcharges, being approximately twice the company’s net earnings from the previous year. The defence submitted that a penalty of $345,000 was more appropriate. Ultimately, the Court issued a penalty of $575,000, comprised of $400,000 (plus a victim surcharge of $60,000) for criminal negligence causing death, and $100,00 (plus a victim surcharge of $15,000) for criminal negligence causing bodily harm.

Criminal Negligence Causing Death or Bodily Harm

Criminal negligence is governed by s. 219 of the Criminal Code, which provides that a person is criminally negligent if, in doing anything or omitting to do anything that it is their duty to do, they show wanton or reckless disregard for the lives or safety of other persons. The maximum prison terms for criminal negligence causing bodily harm and causing death are 10 years and life, respectively. There are no maximum fines for either.

In order to prove criminal negligence, the Crown must prove three elements beyond a reasonable doubt:

1. Legal duty: The accused had a legal duty under statute (section 217.1 of the Code) or common law to take reasonable steps to prevent harm.
2. Actus Reus/Causation: The accused's act or omission, which was their legal duty to perform, significantly contributed to the victim’s harm or death.
3. Mens Rea: The accused's conduct showed a marked and substantial departure from reasonable standards, demonstrating wanton or reckless disregard for safety, assessed by a modified objective standard.

Historically, it was difficult to prove criminal negligence by companies. However, following the Westray mine disaster in 1992, in which 26 miners were killed, Parliament amended the Criminal Code to add s. 22.1, which made an organization a party to an offence based on the actions of senior officers responsible for the activity in question. Although these amendments have been in the Criminal Code since 2004, there have been few instances of companies facing charges of criminal negligence.

In J Cote and Son, the Court held that both the company and the supervisor had a legal duty under the Code to ensure worker safety on the project, and that these duties (including failures to follow excavation safety requirements) were breached beyond a reasonable doubt (i.e., the actus reus was made out). On mens rea, the Court found that the supervisor’s actions, though negligent, did not rise to the level of a ‘marked and substantial departure from the standard of care.’ However, the Court did find that the company’s directing minds did markedly and substantially depart from the standard of care, based both on their conduct related to the construction activity resulting in the incident and their broader failure to implement safety practices, formal hazard identification protocol, and better staff training.

For those reasons, the company was convicted, while the supervisor was acquitted.

Sentencing

In its sentencing decision, the Court emphasized that criminal negligence causing death or bodily harm warrants strong denunciation and deterrence, particularly for corporations, and while the company gained little financial advantage and has since improved its safety practices, its systemic failures and serious harm caused justified a significant fine.

The Court specifically rejected penalty mitigation based on the honest belief of the company’s senior officers that the trench and retaining wall were safe based on an ambiguous engineering certificate the company obtained. The Court held that “the company’s liability rested on the careless practices of its senior officers, which substantially fell far short of what a reasonable company would do in the circumstances” and “Criminally negligent practices are not made less morally blameworthy in a high-risk industrial setting because senior officers honestly but grossly mismanage a job that needlessly puts workers at risk."

Takeaways

The J Cote and Son case demonstrates a renewed interest in charges of criminal negligence against both individuals and companies in regulated industries. In the current context of increased enforcement and resources across most regulated industries, we expect to see the Crown bring more of these charges in the context of serious incidents causing bodily harm or death.

In prosecuting this incident, the Court relied on the collective actions of the senior leadership to demonstrate that the company had failed to meet the requisite standards. In a separate decision applying the ‘secondary’ or personal liability provisions of the Environmental Management Act, the Court of Appeal recently found that a senior officer of a mining company was personally liable for the activities of the company, even though he was not involved in nor aware of the circumstances surrounding the offence.

Taken together, both decisions align with recent trends in enforcement across regulated industries like mining, construction, and environmental sectors, where regulators are increasingly holding both companies and their officers accountable through charges or administrative monetary penalties.