Workplace deaths must be criminally investigated, say labour advocates

B.C.'slabour movement is urging the provincial government to beef up the way workplace deaths are criminally investigated and prosecuted, after several recent cases ended in no criminal charges.

The moves come asa CBC exclusive revealed a criminal investigation into the case of28-year-old Jeff Caron, who was crushed to death while laying sewer pipe in a trench on Oct.11,2012, has only just begun, 18 months after the incident.

• EXCLUSIVE:Burnaby trench worker death prompts RCMP investigation

A WorkSafeBC investigation hasalready determined pipe-layerCaron should not have been working in a three-metre trench, under thehuge concrete retaining wall which cracked and crushed him.

Only in the last week has WorkSafeBC asked the RCMP to examine whether criminal charges should be recommended.

No prosecutions

The calls for change also come at a particularly poignant time, almost 22 years exactly since 26 men died in the Westraycoal mine explosion in Nova Scotia.

• READ MORE:Westray remembered

In the aftermath of that tragedy, the Criminal Code was changedto make it easier to go after companies who neglect safety. That legislation came into effect 10 years ago with the adoption of the "Westray Bill".

But Jim Sinclair, president of B.C.'s Federation of Labour, says B.C.'s Criminal Justice Branch, which conducts prosecutions, has not prosecuted a single employer under the Criminal Negligence section of the code since the law was changed.

"What appears to be a ban on taking charges when they involve employers should be lifted, because it's unfair there are two standards in law," said Sinclair.

"One for people of the work site and one for owners of businesses...That's the problem we have to fix now and we are lobbying hard to do that. Until that happens employers are going to continue to walk away."

On mobile? Click here to read Justice and Deterrence - a B.C. Federation of Labour report on workplace deaths

The B.C.Federation of Labour points to a high profile case in 2007, whenthree farmworkerswere killed and 14 injured in an overloaded vanin Abbotsford.

The Crown did not approve criminal negligence charges, despite police recommendations, opting instead for traffic violations. In the end, the driver was fined $2,000 and WorkSafeBC imposed an administrative penalty of $69,000.

The Crown also refused toapprove charges recommended againstWeyerhaeuser in an accident in New Westminster in 2004.

Lyle Hewer was suffocated to death in amachine that converts wood waste to chips. New Westminster police had recommended criminal negligence charges.

The B.C. Federation of Labour recommends that police agencies get special training on investigations relating to the "Westray" section of the Criminal Code, and that the Crown have a prosecutor dedicated to dealing with workplace fatality and serious injury cases.

It also recommends that there be mandatory police investigations of all workplace fatalities and serious injuries.

Expertise in workplace prosecutions

B.C. Justice Minister Suzanne Anton denied there is a ban on workplace prosecutions, and says the Criminal Justice Branch already has expertise in workplace prosecutions.

"Theyare Crown experts in the area, theyare Crown-assigned to the issue of workplace deaths and possible charges on them," she said.

"Absolutely they know exactly what they are doing, they are expert in the area, and they proceed very, very carefully on these because they know, they know how serious these matters are."

Sinclair questions the government's commitment, given the 18-month gap between Caron's death and WorkSafeBC turning over the case to the RCMP for investigation.

"What should happen is the RCMP and WorkSafeBC should co-operate on these investigations and the RCMP should follow it through and onlyleave if they are convinced there was no criminal negligence."

Fumbled investigations

Shirley Bond, the minister responsible for WorkSafeBCsays the entire investigative process is under review afterfumbled investigationsin the sawmill fires at Babine mill near Burns Lake and Lakeland mill in Prince George two years ago.

In those incidents, four people died. Investigators at the WorkSafeBC recommended charges under the offence sections of the Workers' Compensation Act, but the Crown refused to approve them, citing problems with investigation methods.

• Read more about the Babine Burns Lake sawmill explosion
• Read more about the Lakeland Prince George sawmill explosion

Former BC Ferries board member Gord Macatee has been appointed to take over at WorkSafeBC and review the process.

"I think we are going to have a very good look at the investigation and inspection side to eliminate some of those challenges that have existed, particularly in the case of Lakeland and Babine," said Bond.

Bond sayspolice and WorkSafeBCinvestigatorsmust work together.

"There are a number of memorandums of understanding that are being worked on at the moment to talk about the critical nature of that communication, of making sure that during the course of an investigation there is a back and forth about this."

'I would like to see criminal charges'

In the case of Caron, at the time of his death he wasworking for J Cote and SonExcavating,which had been hired by the City ofBurnaby, in conjunction withEarthbitatEngineering and Vector Engineering.

WorkSafeBC'sinvestigation concluded that the City ofBurnaby, the excavation companyand thetwo engineering firmsall failed to address thehazards.

Caron'smother CindyKahm, who lives on Little Pine First Nation some 200 kilometres northwest of Saskatoon,saysshe hopes someone is held accountable for hersons death.

"I would like to see criminal charges, I think it's important to charge people who kill others, because basically, he was killed," she told the CBC.

WorkSafeBCspokespersonScottMcCloysaystheCaron"file is now with the RCMP andWorkSafeBCwill await the outcome of the police investigation before proceeding further."

WorkSafeBC could still impose administrative penalties in the Caron case, even if no charges are laid.