Don’t Overlook the Basics in the Defence of Regulatory Offences: R. v. Atlantic Road Construction and Paving Limited

Overview

On May 7, 2025, the Nova Scotia Court of Appeal issued its decision in R. v. Atlantic Road Construction and Paving Limited, 2025 NSCA 31. The Court of Appeal decision concluded a lengthy court process regarding charges brought under the Nova Scotia Occupational Health and Safety Act and confirmed the result at trial – the acquittal of the Defendant on every charge brought against it.

The Court of Appeal decision, as well as the decisions of the lower courts, confirmed a number of principles relevant to the law of regulatory offences. Principally, these decisions remind us that nothing should be taken for granted in the defence of regulatory offences.

Background Facts

In 2018 and 2019, Atlantic Road Construction and Paving Limited (“ARCP”) was working as an excavation subcontractor on a construction site in Halifax. This work included blasting bedrock.

Following the proper reporting of a misfire at the construction site, the Nova Scotia Department of Labour reviewed CCTV camera footage taken from the roof of a building neighbouring the construction site. Although the reported misfire did not lead to any charges, the Department of Labour subsequently brought numerous charges against ARCP, unrelated to the Department’s initial concern regarding the reported misfire, based on what the Department thought it had seen on the CCTV footage.

At trial, ARCP was acquitted of all charges brought against it. The Trial Judge made several noteworthy conclusions. He found that the evidence at trial, including the testimony of witnesses and the CCTV footage, did not prove the charges beyond a reasonable doubt.  Further, some of the charges brought against ARCP involved the alleged failure to create adequate blast logs. The Trial Judge found that the Crown had not met its basic burden of demonstrating that the documents put forward as blast logs were true and accurate copies of the logs. This decision was rooted in the nature of the evidence presented at trial and in the proposition that the authenticity of purported blast logs should be held to a higher standard of scrutiny given that the logs formed the very heart of the alleged offence.

The Crown appealed several aspects of the decision at trial to the Summary Conviction Appeal Court (the “SCAC”). The SCAC upheld all but two of the acquittals entered at trial and ordered a new trial on those two counts. The basis of the SCAC decision to overturn two of the acquittals was based on the SCAC Judge’s review of the evidence at trial and her determination that the evidence demonstrated guilt beyond a reasonable doubt. Also of note, the SCAC confirmed a line of cases confirming the need to hold the Crown to a higher standard of authenticity in certain circumstances.

ARCP appealed the SCAC Decision overturning two acquittals to the Nova Scotia Court of Appeal. The Crown cross-appealed regarding the remainder of the SCAC Decision which upheld the other acquittals entered at trial.

The Nova Scotia Court of Appeal allowed ARCP’s appeal, dismissed the Crown’s cross- appeal and restored ARCP’s acquittal on all counts.

The Basics of Burden

In this case, the Crown had the burden of demonstrating that the purported blast logs were admissible and authentic. Recall, some of the charges against ARCP related to the alleged failure of ARCP to maintain complete blast logs.  The Crown was required to prove that the purported blast logs represented the complete and authentic blast log for each blast.

The Crown twice sought to meet this burden by introducing photocopies of what it believed were the blast logs. The first documents put forward by the Crown as blast logs were put to the creator of the blast logs, Mr. Wilson, but Mr. Wilson explained that important elements of the logs were missing. Without these important elements, the Crown could not show that the documents were true copies of the original logs.  Later in the trial, the Crown put forward a different purported copy of the blast logs showing what may have been the missing elements. These documents were not put to Mr. Wilson, but rather to the Department of Labour officer who could not speak to the content of the original blast log.

The Defence objected to the purported blast logs, arguing that the Crown had not proven that the documents were true and accurate copies. The Trial Judge agreed. The SCAC Judge upheld this conclusion as it was consistent with a line of cases from the SCAC on the need to hold the Crown to a higher standard when the proffered documents are material to the charge at issue. This principle has now been affirmed by the SCAC multiple times and should be kept front of mind when defending regulatory offences.

The Court of Appeal Affirmed the Standard of Review Applicable to Summary Conviction Appeals

The Court of Appeal, for its part, allowed ARCP’s appeal on the basis that the SCAC Judge had inappropriately applied the requisite standard of review. A SCAC judge is restricted in the nature of the analysis they can undertake. Absent an error of law or a miscarriage of justice, the SCAC can only overturn a trial decision if the trial judge’s findings are unreasonable or cannot be supported by the evidence. The SCAC can engage in a re-examination of the evidence at trial, but only to determine if the evidence is reasonably capable of supporting the trial judge’s decision.

The Court of Appeal upheld this standard, ultimately concluding that the evidence was reasonably capable of supporting the trial decision.

Key Takeaways

The key takeaway can perhaps best be summarized as “don’t lose sight of the basics” as, in this case, the basics of burden were key to a successful defence. The defendant in any case involving a regulatory offence should strictly hold the Crown to its burden, including regarding the admissibility of evidence. This is emphasized by the SCAC’s confirmation of the higher burden applicable to the admissibility of documents that are material to the prosecution of an offence. This case demonstrates the importance of strictly holding the Crown to its burden even regarding issues that may seem minor or routine, such as the accuracy of photocopies

Similarly, the Court of Appeal confirmed the strict standard of review applicable to the SCAC’s review of trial decisions. Considerations of the basics, like whether a court applied and followed the appropriate standard of review, are key to any form of appellate review.

Disclosure:
The information provided here does not constitute legal advice and is based on details available at time of writing. Perspectives and interpretations around this information will vary depending on the individual circumstances to which they may apply. Consult legal counsel for information and advice relevant to your individual circumstances.