Ex-foreman appeals fatality conviction
Jason Andrew King, 46, of Central Hainesville, was sentenced to three years in prison earlier this month for workplace death of Michael Anthony Henderson, 18, in 2018
A Central Hainesville man sentenced to prison for causing the death of a teenage worker under his supervision five years ago is appealing his conviction.
Court of King’s Bench Justice Thomas Christie convicted Jason Andrew King, 46, of Crabbe Mountain Rd., this summer of criminal negligence causing death, and on Sept. 12, imposed a three-year prison term for the crime.
Evidence at King’s judge-alone trial this year showed the offender was working as the supervisor for Springhill Construction Ltd. at a job at the City of Fredericton’s the Barker Street Wastewater Treatment Plant on Aug. 16, 2018, when Michael Anthony Henderson, 18, of Fredericton, drowned in an accident on site.
Henderson was at the bottom of an eight-foot hole, clearing debris, when an inflatable rubber plug holding back water from the hole came loose, pinning him against the wall of the hole as it filled with water.
King was responsible for workplace safety on the job, and he admitted during his testimony at trial he had reviewed any of the safety protocols, procedures or guidelines contained in manuals on site.
Christie found King ignored his responsibility for the safety of those under his supervision, and that he was reckless when he ordered water flow into the pipe that ended up filling the hole in which he knew Henderson was directed to work.
However, King’s legal counsel, Fredericton lawyer Patrick Hurley, filed a notice of appeal with the New Brunswick Court of Appeal on Sept. 13, the day after his client was sentenced, seeking to have the conviction quashed and an acquittal entered instead.
In the alternative, Hurley asked the province’s top court to quash the conviction and order a new trial, arguing Christie erred in his decision and in rulings he made during the trial.
“The learned trial judge erred by admitting into evidence a statement provided by the appellant to officers employed by WorkSafeNB,” the notice of appeal states, adding that Christie also misapprehended the responses King provided in that statement.
King, through Hurley, also contends the trial judge was wrong in finding he violated the standard imposed on a site supervisor “in the absence of evidence establishing the requisite standard required of a reasonable supervisor,” that King failed in a legal duty imposed on him by law and that the judge erred in finding King knew Henderson was in the hole at the time of the accident.
Among the other grounds the notice of appeal lists was that Christie was wrong to find that King knew the hole in which Henderson was working qualified as a confined space, which would trigger certain safety precautions.
An occupational health and safety expert testified at trial it would have been abundantly apparent to anyone who saw the hole that it was a confined space.
Hurley wrote Christie finding of guilt based on the evidence presented at trial was erroneous as well.
No date has been set as yet for the appeal to be heard.
Once Christie imposed the prison term earlier this month, King was taken into custody, and he remains incarcerated at this time.
However, he has applied for release pending the outcome of his appeal, and Court of Appeal Justice Charles Leblond is scheduled to hear that motion Oct. 16.
King was employed by Springhill Construction Ltd. as a foreman at the time of the accident that claimed Henderson’s life, but he was fired from the company shortly thereafter.
Springhill was also charged by the Fredericton Police Force with a count of criminal negligence causing Henderson’s death. Its Court of King’s Bench trial is slated for January.
Don MacPherson can be contacted at ftonindependent@gmail.com.