WorkSafeBC says it will have to re-examine its nearly two-decade-old investigative process in light of Crown counsel鈥檚 rejection of charges in the deadly explosion of a Burns Lake sawmill two years ago.
Crown counsel said some of the evidence collected by the province鈥檚 chief workplace safety regulator would likely be found inadmissible, therefore making any regulatory charges unlikely to succeed in court. The B.C. Criminal Justice Branch cited a lack of search warrants and noted a company official had not been instructed of the right to remain silent when questioned.
As WorkSafeBC grapples with potential changes, the families of victims Robert Luggi Jr., 45, and Carl Charlie, 42, on Monday called the decision 鈥渧ery鈥� disappointing. Both families of the men, who each had three children, had expected charges.
The majority owner of the mill is Oregon-based Hampton Affiliates, in partnership with the Burns Lake Native Development Corp.
NDP opposition leader Adrian Dix also weighed in, calling for an independent probe of the 鈥渂ungled鈥� investigation.
The union representing workers at the Burns Lake mill also said Monday the province needs to bring a criminal lens to fatality investigations.
It鈥檚 not clear why search warrants and notifying those WorkSafeBC interviewed of their rights 鈥� both 91原创 Charter of Rights and Freedoms issues 鈥� were only now being raised by Crown.
In 31 cases between 1996 and 2010 where Crown counsel approved charges (24 of which received convictions), the issues were not raised. That included the successful prosecution two years ago of the 2008 Langley mushroom farm incident that killed three workers and left two men with irreparable brain damage.
鈥淭he case law the Crown referenced (in its rejection) is at least 10 years old, but it鈥檚 never been raised as something that has been required of an occupational health and safety investigation,鈥� WorkSafeBC director of investigation Jeff Dolan said Monday.
Beginning this month, WorkSafeBC will incorporate the need for search warrants and Charter warnings during investigations. At what point during an investigation that will need to take place will require further discussions with Crown counsel, said Dolan.
WorkSafe has the right to enter workplaces at any time without a warrant to do safety inspections.
Dolan said WorkSafeBC may need a 鈥減arallel鈥� approach, with one arm looking at cause and underlying factors and another being vigilant to the potential for prosecution to get the timing right. 鈥淚t鈥檚 certainly something we will be talking to Crown about 鈥� outside the context of a specific investigation 鈥� to make sure we have the model they鈥檝e recommended,鈥� he said.
Crown counsel, in an eight-page statement on its decision to reject charges, noted WorkSafeBC inquiries were conducted as a safety-compliance inspection and not as an investigation into possible criminal or regulatory enforcement.
Crown counsel noted, for example, that WorkSafeBC did not obtain a search warrant authorizing search and seizure at the Babine site, even after its officers formed reasonable grounds to believe Babine had violated the Workers鈥� Compensation Act and Occupational Health and Safety Regulation. And when officers interviewed the president of Babine, they did not provide him with any Charter of Rights warning or caution, Crown said in its statement.
B.C. Criminal Justice Branch spokesman Neil MacKenzie would not speculate what the Charter rights鈥� issues might mean to future WorkSafeBC investigations. MacKenzie said Monday that case law continues to develop in this area.
WorkSafeBC is now considering its next steps, which could include the possibility of administrative penalties against Babine.
In a court prosecution, individuals may be fined or even jailed for up to six months, but administrative fines may only be levied against companies. The maximum administrative penalty is $500,000, lower than the maximum $652,000 court-ordered penalty.
WorkSafeBC also plans to hand over next month to Crown counsel its investigation on a second 2012 deadly sawmill explosion at Lakeland Mills in Prince George.
Dolan said the Crown鈥檚 opinions on search and Charter Rights鈥� issues are 鈥渁bsolutely鈥� being taken into consideration in finalizing their submission on the Lakeland blast.
WorkSafeBC has said it will release the 88-page summary of its investigation on Babine sometime this week to the families of the victims and then publicly.
鈥淗ow could my husband die at his workplace and the Crown has evidence, has received it and is not able to conclude any charges will be laid?鈥� said Maureen Luggi. 鈥淚t was a lot of shock and reopening of old wounds.鈥�
Luggi said Premier Christy Clark has the power to help the families heal from the tragedy.
鈥淕overnment, if it has a role to play in this, in bringing this to an independent review, then so be it,鈥� she said.
The families were joined by B.C. First Nations leaders in calling for a fuller airing of the Crown鈥檚 decision. 鈥淲hy didn鈥檛 the Crown or WorkSafeBC consider these procedural issues before or at the inception of the investigation?鈥� questioned Grand Chief Ed John of the First Nations Summit.
New Democrat Leader Adrian Dix is calling for an independent probe.
鈥淭here remain far too many unanswered questions about the tragic explosion,鈥� said Dix.
Steve Hunt, United Steelworkers director for Western Canada, called the investigation a 鈥渄ebacle鈥� and said WorkSafeBC did not do a good job.
Hunt said the province should focus a criminal lens on these types of investigations with training for both police, Crown counsel and WorkSafeBC, something he said the Steelworkers called for a year ago.
B.C. Federation of Labour president Jim Sinclair also said the province needs to focus more on criminal prosecutions of workplace deaths.
With files from The 91原创 Press
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