Crown wants 3 years for N.B. man convicted of criminal negligence in workplace death

Defence lawyers for the man convicted of criminal negligence causing the death of an 18-year-old employee want to see him serve his sentence in the community, while Crown prosecutors want him to serve more than three years behind bars.

Lawyers delivered their sentencing recommendations Monday in the case of Jason King, a former construction supervisor who was convicted of criminal negligence causing the death of Michael Henderson at a job site in Fredericton on Aug. 16, 2018.

Defence lawyer Patrick Hurley argued King deserves a conditional sentence of 12 to 18 months.

Such a sentence would see King serve his time at home, but under strict conditions set out by the court.

Michael Henderson, 18, of Fredericton, was killed in a workplace incident at the Barker Street wastewater treatment facility on the city's north side on Aug. 16, 2018. (McAdam's Funeral Home)

Hurley said King poses no danger to the public and is a valued member of his Central Hainesville community, about 54 kilometres northwest of Fredericton.

"He's not a threat to the community. He's not a menace to the community. He's an asset," said Hurley, addressing Justice Thomas Christie at the Burton courthouse.

But Crown attorney Christopher Lavigne said King deserves a three-and-a-half year federal prison term to signify the court's denunciation of the crime committed, and to deter anyone else from doing the same.

Lavigne said the need for the sentence to serve as a deterrent was uniquely significant in King's case, given his criminal record.

Lavigne referred to King's 2006 manslaughter conviction, which he served in prison until 2010, and on probation until 2017.

Lavigne said King's three prior assault convictions from 1995 and 2001 should also serve as an aggravating factor in his sentence.

"The court should be concerned with deterring this particular offender from participating in acts that contribute to another loss of life," Lavigne said.

For the Crown's recommendation, Lavigne leaned on the sentencing decision in the 2015 conviction of Vadim Kazenelson on four counts of criminal negligence causing death.

Kazenelson, a manager for a construction firm, was sentenced to three-and-a-half years in prison for negligence causing four men to fall to their deaths at a construction site in Toronto in 2009.

Following both lawyers' arguments, Christie said he would deliver his sentencing decision in court Tuesday afternoon.

Background of case

King's judge-alone trial lasted three weeks this spring and heard from several witnesses, including King himself, who was employed by Springhill Construction and was the supervisor for the project at the time.

Testimony revealed the work involved constructing a large concrete pool-like structure, known as a clarifier, at the City of Fredericton's sewage plant on Barker Street.

The hole in the middle of the clarifier where Henderson died. (New Brunswick Court of King's Bench)

The clarifier had a hole in the middle, and at the bottom of that hole was a horizontal pipe running several metres to the bottom of a nearby manhole.

In the weeks leading up to Henderson's death, King discussed plans to use a large inflatable plug to seal the horizontal pipe and then fill the manhole with water to test whether the pipe was watertight.

On the morning of Aug. 16, Henderson was cleaning out the bottom of the hole at the centre of the clarifier.

A diagram shows how water flowed from a manhole on the left, down into a horizontal pipe and up into a hole in the middle of the clarifier. (New Brunswick Court of King's Bench)

Jason King started filling the manhole with water shortly before noon that day and kept it running as Henderson and other workers went for lunch.

Henderson resumed work around 12:30 p.m, and shortly before 1 p.m. the plug slid out of the pipe while he was in the hole, pinning him to the wall as water rose above his head. He remained under water for several minutes before first responders were able to free him.

Grieving relatives address court

Monday's proceedings began with at least a dozen victim impact statements from cousins, grandparents, the brother and the mother of Henderson.

Diane Henderson spoke of how her son's death has left her and her older son with crippling grief.

"Michael was 18-years-old and just graduated from high school. He had an exciting life ahead of him," she said.

"This was all taken away due to someone's negligence."

Diane Henderson also read out a victim impact statement on behalf of Eric Henderson, her older son, who had been working on the same job site the day Michael Henderson died.

Eric Henderson's statement described how he rushed over to the hole his brother was stuck, submerged in water, and tried to pull him up by his arm.

He also tried puncturing the plug with a knife in an effort to free him, but was unsuccessful.

Desperate, he even tried finding his brother's mouth so he could breath air into it.

"This is the most devastating thing a brother could have to go through," said Henderson, reading her son's statement.

Since his brother's death, Eric's statement said  has suffered post-traumatic stress disorder and survivor's guilt, which upended his relationships, his professional life, and pushed him to turn to drugs and alcohol, which he abused up until a year and a half ago.

"My brother was pinned and drowned due to someone's negligence. Something that shouldn't have happened."

Before adjourning for the day, Christie gave King an opportunity to address the court directly.

"I understand this matter has caused a lot of pain and suffering for both sides of the courtroom and beyond," King said.

"And I'm hoping that soon the pain may start to ease and that the memory of this young man never fades."