Construction supervisor convicted in worker's death granted bail pending outcome of appeal

A former construction supervisor sentenced to three years in prison for negligence causing the death of his employee has been granted bail pending the outcome of his appeal.

Jason King was allowed to leave Dorchester Penitentiary, in southeastern New Brunswick, following a consent order agreed to by his defence lawyer and the Crown on Oct. 6.

The order lays out several conditions he must abide by, including keeping the peace, not consuming or possessing any alcohol or non-prescription drugs and remaining at his home in Upper Hainesville at all times, except to go to work between 6 a.m. and 6 p.m. and for three hours on Saturdays to run errands.

King is also required to wear an ankle monitoring bracelet at all times.

King's release comes after he filed a motion to appeal his June 5 conviction of criminal negligence causing the death of 18-year-old Michael Henderson at a construction site in Fredericton on Aug. 16, 2018.

Court of King's Bench Justice Thomas Christie found King guilty following a three-week trial this past spring.

On Sept. 12, Christie sentenced King to three years in prison and that same week King filed an appeal as well as a request to be released on bail, pending the outcome.

In the notice of appeal, 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.

Hurley is also arguing that Christie erred in determining King breached the standard required of a reasonable supervisor, in the absence of evidence establishing the requisite standard.

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.

Amendments to motion

Hurley also filed an amended notice of appeal, which asks that if the conviction isn't overturned that the court allow an appeal against the three-year sentence and vary it to impose a 12- to 18-month conditional sentence, followed by a period of probation for a further 12 to 18 months.

In the motion, Hurley said Christie erred by imposing a sentence that was demonstrably unfit, particularly by imposing a sentence "that constitutes an unreasonable departure from the fundamental principle of proportionality, with respect to the degree of responsibility of the appellant."

Hurley had originally argued at sentencing that King should receive a conditional sentence, which would have seen him serve his sentence in the community, but with restrictions.

Details from trial

Testimony at trial revealed Henderson had recently graduated from high school when he went to work for Springhill Construction on a project at the City of Fredericton's sewage plant on Barker Street.

The project 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.

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. 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.

Christie, in giving his guilty verdict in June, said he found King "did nothing he was required to do" when it came to ensuring Henderson's safety on the site.