A former construction supervisor who caused the death of his teenaged employee is appealing his conviction, and wants to be released on bail while the New Brunswick Court of Appeal considers his case.
Jason King's defence lawyer is arguing a judge erred in considering certain evidence during his trial for criminal negligence causing the death of 18-year-old Michael Henderson in August 2018.
Following a three-week trial this spring, New Brunswick Court of King's Bench Justice Thomas Christie found the 46-year-old guilty, and sentenced him on Sep. 12 to three years in prison.
In a notice of appeal filed the next day, Patrick Hurley, King's lawyer, said Christie made several errors during the trial, including admitting into evidence a statement King provided to WorkSafeNB employees, as well as by "misinterpreting and misapprehending" the responses King provided in that statement.
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 is also arguing Christie erred in determining King breached the standard required of a reasonable supervisor in the absence of evidence establishing the requisite standard required of a reasonable supervisor.
As a result, Hurley said King is asking the court to either quash his conviction and acquit him of the charge, or quash the conviction and order a new trial.
CBC News asked Hurley and Sabrina Winters, another defence lawyer, for an interview about the appeal, and in an email Winters said they're unable to comment as the matter is before the court.
What the trial heard
Testimony at trial revealed Henderson was working on a project at the City of Fredericton's sewage plant on Barker Street, which involved constructing a large concrete, pool-like structure known as a clarifier.
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.
An aerial photo shows the clarifier, which the court has heard Michael Henderson was working in on the day he died. (New Brunswick Court of King's Bench)
On the morning of Aug. 16, Henderson was cleaning out the bottom of the hole at the centre of the clarifier.
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.
The hole in the middle of the clarifier, which Henderson became trapped in as water rose above his head. (New Brunswick Court of King's Bench)
During the trial, King testified in his own defence that he thought Henderson wouldn't be going back into the hole after lunch.
But Crown prosecutors played a recorded statement King gave to WorkSafeNB shortly after Henderson's death, in which King is heard saying that he knew Henderson still had more work to do in the hole after lunch.
King also testified that he never directly told Henderson not to go back into the hole, or about the leak test that would prove fatal.
Request for bail
In addition to King appealing the decision, he's also asking to be released from custody pending a decision by the court.
In an affidavit, King said he resided on Central Hainesville Road in Upper Hainseville, N.B. for the past three years and would continue to live there if granted bail.
King said prior to his conviction, he was employed with J.A.K. Enterprises Inc. He did residential and construction renovations for the company.
He said he was confident he'd be able to return to his job with the company if released, adding he would abide by any terms the court imposed.
A hearing on that motion is scheduled for Oct. 16.