14-year-old criminal law for workplace fatalities rarely being enforced
May 9, 1992 would be the last shift for 26 workers at the Westray Mine in Nova Scotia. They were at the mercy of a lethal buildup of methane gas that triggered an underground firestorm which killed them.
The explosion so fierce, buried bodies were never recovered.
Stephen Hunt, the western director for the United Steelworkers Union, testified at an inquiry. Nearly a quarter of a century later, the impacts still haunt him.
“I’m damaged by what I saw and heard.”
“You relive the last few minutes of their life and for a while it never affected me and then one day it did,” Hunt said, choking back tears.
Hunt has relentlessly fought to stop corporations from using human lives as collateral damage in the rush for profits and productivity.
WATCH: It’s a little known part of Criminal Code legislation rarely used in Canada. A law created over a decade ago allows police to lay criminal negligence charges against corporations when someone dies on the job. As Jill Croteau reports, the lack of enforcement is staggering.
The Supreme Court Justice at the head of the inquiry called the disaster preventable — the result of deceit, coverup, greed and apathy. The company ignored and disabled safety equipment.
Justice K. Peter Richard recommended a law that would allow courts to hold executives accountable for workplace safety. In 2004, the Westray Bill was passed.
“After Westray, we still kill on average 1,000 Canadians a year. We call them accidents. I call it corporate murder,” Hunt said.
The Criminal Code was amended to make it possible to prosecute companies for criminal negligence.
In the 14 years since the Westray Bill passed, there’s been a dismal record of enforcement. There hasn’t been a single conviction in Alberta, only a handful in other cities across the country.
“I don’t want to see a whole bunch of CEOs go to jail, but one or two would be good, and I think that’s the paradigm shift we need,” Hunt said.
“If you are negligent and you take someone’s life, you have to have repercussions and own that. If that means you spend time in jail cell, so be it.”
Julie Hamilton’s 19-year-old son Tim lost his life on the job site.
He was electrocuted in July 1999. He was putting up a large tent for a party when an aluminum pole hit an overhead power line. Tim has been gone as long as he was alive. It’s been 19 years.
“Every single day I think of him. You know that awful, empty, caving in feeling in your chest? That’s how I feel on the worst days,” Hamilton said.
“I am tired of watching my family hurt. I am tired of watching other families hurt. I am tired of people saying: ‘We are doing this.’ No, they’re not.”
She’s been advocating for police jurisdictions and crown prosecutors across the country to use the Westray law.
“I keep seeing these things happen and I can’t figure out why people aren’t screaming.”
“People are getting killed on work sites and it’s people picking expediency and profits over people’s safety. That’s wrong,” Hamilton said.
Many supporters of the Westray law wonder why there has been a failure enforcing a criminal code that exists. Part of the problem is the historical way workplace fatalities are investigated. The regulator, Occupational Health and Safety (OH&S) only has the authority to impose fines.
“OHS does have a system they use to investigate incidents. Police get called in and they look for a knife or bullet hole, don’t see one, and OHS is not trained to build a criminal case. That’s why we need them to stay on site and ask the right questions,” Hamilton said.
For the first time in this country, a police agency is worked to apply the Westray law and consider criminal charges.
The Calgary Police Service has trained 28 police detectives to investigate serious workplace and fatal incidents.
Supt. Cliff O’Brien is in charge of the new program named in honor of three-year-old Michelle Krsek. She was killed by falling construction material in downtown Calgary in August 2009.
“That was devastating and impacted first responders. It was well investigated, but they got a fine. For a young girl to be killed that way in front of her family… We wanted something good to come of it,” O’Brien said.
“The Krsek Protocol is whole program with our detectives working parallel investigations with OHS to determine criminality. You can’t do that without training.”
“We didn’t always do a great job. We realize we could do better.”
The detectives went through training to better equip them with the tools and knowledge on how to look at workplace fatalities through the lens of the Criminal Code.
“There’s been cases knowing what we know now, had we known that years ago, it would have greater impact,” O’Brien said. “As an investigator, when you go to these calls where someone has died, it’s devastating and when you feel handcuffed and all you can do it take them to court for a fine… is troubling. We want to see some justice.”
Rob Stewart, an expert in workplace safety culture, helped develop the training and wants it to go nation-wide.
“The ball was dropped when the law was originally passed.”
“The assumption was made that the law was passed and everyone will do what they’re expected to do,” Stewart said.
He’s encouraged by CPS’s proactive approach.
“We put them through a workshop. Police are fantastic investigators but they never looked at these type of incidents before, so we looked at what needed to be in place for the bread crumbs they had to follow to find out criminal negligence or not and provide families answers and hold people accountable,” Stewart said.
Stewart said this can be a game changer on work sites across Canada. Other countries have the proof.
“We don’t hire stupid or suicidal workers; we create them. That’s the part that makes it criminally negligent.”
“We look at what happened in other jurisdictions like the UK and European Union. They took this approach and numbers are astounding,” Stewart said. “Our serious injury rates in Alberta are sitting at 196 per million; they are at 39, which is remarkable. How did they get there? By enforcing Corporate Manslaughter Act and started to take this seriously.”
Jonathan Hak, a former Alberta Crown prosecutor, has co-authored a research paper with Stewart. It’s designed to educate enforcement agencies on how to apply the Criminal Code in workplace incidents.
“The goal here is to allow workers to go home to their loved ones and criminal law is one of the tools to make that impression on the workplace to make that workplace safer,” Hak said.
“Accountability goes a long way in the pursuit of justice,” Hak said.
“We may need to make examples of some employers to get a culture shift within industry and police agencies across the country who traditionally would not be involved in these types of investigations.”
In April 2017, the Alberta government signed the Westray Memorandum of Understanding. It was designed to help facilitate coordination and communication between provincial police services and OHS. The minister of labour, Christina Gray, made the announcement, but there has been no funding allocated for training.
“The police service partners and OHS all signed on to clarify protocols. No specific funding was announced. This is a top priority for me.
“If there needs to be funding conversations, we are open to having those. But they are doing it within their existing budgets,” Gray said.
The federal government is working on its role and is set to announce the next stage on enforcing Westray in the spring of 2019.
Carlene Variyan, the communications director with the Office of the Minister of Public Safety, said Prime Minister Justin Trudeau has committed to working with the Canadian Labour Congress and its members, with employers, and with our provincial and territorial partners, to help ensure that the Westray provision is applied effectively.
“We are doing more to ensure that labour inspectors and law enforcement officials are properly trained in the provisions of the law and that they coordinate effectively to ensure that the possibility of a charge for criminal negligence resulting in a serious injury or death is not overlooked,” Variyan said.
There is no word on whether funding will be allocated to the training programs.
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