By Delon Shurtz on January 22, 2021.
After spending a week hearing from Crown witnesses, the lawyer representing a livestock feed company charged in the death of an employee three years ago, wasn’t going to call any evidence of his own.
During a break in the Lethbridge trial this week, Calgary lawyer Michael Smith said the Crown failed to prove its case and suggested there is not enough evidence for a conviction.
“The case is so weak we don’t have to defend it,” Smith said.
Smith asked Judge John Maher for a directed verdict, which would dismiss the case on the basis that the essential elements of the offence have not been made out.
“It’s so obviously bad, it should be dismissed out of hand,” Smith said.
However, aside from four charges that were withdrawn at the start of the trial, the judge only ordered a directed verdict on six charges and dismissed them, leaving the company to face 14 of the 24 charges it initially faced.
The charges laid under the Occupational Health and Safety Act allege the Cardston company, Taurus Natural Inc., failed to ensure the health and safety of 41-year-old Scott Forsyth, who died on the job three years ago.
Forsyth climbed into a dry mineral mixing hopper to unplug the auger connection, even though the mixer control had not been isolated and locked out, which would have prevented the machine from operating. The mixer was activated while the worker was inside the hopper, and the steel rotating agitator pinned him to the inside wall.
Defence maintains the company did not fail in its responsibility to keep its employee safe, and doesn’t know why Forsyth entered the mixing hopper Jan. 30, 2018, or why another employee, who was not supposed to operate the mixer, turned it on.
During the defence case Tuesday, company owner Bart Leavitt testified Forsyth was fully trained to operate the mixer, and knew it needed to be locked out to prevent it from operating while anyone is inside cleaning or maintaining it. Under cross examination by the Crown, Leavitt conceded there was no operating manual for the equipment, but pointed out there was a set procedure and Forsyth had been fully trained.
“I did expect he would follow the rules,” Leavitt said.
During closing arguments, Smith said the court must determine who is at fault for the actions that led to the offences. He said if it wasn’t Taurus Natural, then the company must be acquitted. If it was Forsyth, the company still can’t be accountable for his actions.
“The actions of Scott Forsyth are not the actions of Taurus Natural Inc., and the failings of Scott Forsyth are not the failings of Taurus Natural Inc.,” Smith said.
He said the Crown has to prove the specifics of each charge and prove their was more the company could have and should have done to protect the employee. He suggested the only person who made a mistake was Forsyth, because he didn’t lock out the mixing machine before entering.
Smith also suggested that Forsyth may have been impaired, which would explain his actions the day he died. Smith referred to a toxicology report – entered as a court exhibit – which indicates tetrahydrocannabinol, a chemical in cannabis, was found in Forsyth’s body during his autopsy.
The Crown maintains Forsyth, who had only been responsible for running the mixer for a month when he died, was not properly trained to operate the equipment.
Co-Crown Prosecutor Jasmine Grewal said Wednesday during her closing arguments, Forsyth entered the mixer while it was still energized because he hadn’t been adequately trained, and the company failed to take specific steps to ensure his safety.
“If there was a safety system in place, none of his would have happened,” Grewal said.
She said because there wasn’t an overall safety system in place, “it’s very forseeable that mistakes are going to be made.”
Smith said the system to prevent the mixer from being turned on while someone inside is foolproof, and requires the person entering the mixer to first lock out the machine by turning a lever, then securing it with a padlock. Yet for some unknown reason Forsyth didn’t take those steps. If he had, Smith added, the other employee would not have been able to activate the mixer.
The trial concluded Wednesday, but Judge Maher has reserved his decision for two months. The matter is scheduled to return to docket court Feb. 29 to schedule a specific date in March.
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