‘We’ve been fighting ever since’

It was about 3:30 in the morning on June 8, 2011, when Wendy Fram received the visit that is every parent’s worst nightmare.

There had been a mining accident at Vale’s Stobie Mine in Sudbury, Ont., and her son Jordan had been killed instantly. The accident was very similar to one that had occurred a few years before at the same mine, said Briana Fram, Jordan’s sister.

"Those issues had never been rectified," she said. "If companies were held criminally accountable for their actions, this incident would never have happened. People would’ve taken more responsibility to make those changes if they knew that their lives were on the line as well — if they knew that they could go to jail, as opposed to their company, with these deep pockets, simply paying a fine. That means nothing to them."

Briana spoke those words in a United Steelworkers’ "Stop the Killing. Enforce the Law" campaign video. The campaign, which began in 2012, is advocating for better enforcement of the Westray law, which allows organizations or individuals to face criminal charges for workplace fatalities and serious injuries.

The law, or Bill C-45, is named for the 1992 Westray mine explosion, which killed 26 workers — and changed the surrounding communities forever, said Stephen Hunt, director of District 3-Western Canada at the United Steelworkers Union (USW), in Burnaby, B.C.

"That’s where it started and we’ve been fighting ever since," he said. "We started on a campaign to fight back. We gave a commitment to the families and the survivors that there would be no more Westrays, and we’ve stood by it for the last 22 years."

Hunt, who testified as an expert witness at the inquiry, said the law was one of the recommendations that came out of the Westray inquiry. It passed through federal parliament with all-party support and became law in 2004. It amended the criminal code so that under certain circumstances, individuals and organizations could be criminally liable for workplace deaths and injuries.

"And we actually thought, ‘Wow. We’ve won, and now we’ll see the paradigm shift that we need to stop workplace deaths, or at least reduce workplace deaths and serious injuries,’" said Hunt. "Unfortunately, after the law was passed, the political decision not to enforce has existed in the country, and there’s been limited activity around the Westray bill."

As of January 2014, there had been a total of eight cases with criminal charges laid under the Westray law since its inception, according to the Canadian Centre for Occupational Health and Safety.

Of those, five resulted in criminal convictions; three resulted in charges being dropped or individuals being acquitted.

However, according to the USW, about 1,000 Canadian workers are killed on the job every year, representing one of the worst records in the developed world.

That workplace deaths record, combined with the relatively small number of employers charged under Bill C-45, is why the USW decided to launch the Stop the Killing — Enforce the Law campaign on the 20-year anniversary of the Westray mine disaster, said Hunt.

The campaign has been gaining momentum in recent months, having been raised with federal, provincial and territorial justice ministers, said the union.

It has also developed a strong support base with municipalities, including Toronto, said Hunt.

"The results have been very positive; when we take it to most municipal councils, they get it," he said.

"We had the B.C. union of municipalities recently in Whistler endorse our resolution by 100 per cent, so every community in British Columbia now has supported it; we’re trying that across the country with different provinces. We’ve been meeting with attorneys general across the country, we’ve had Nova Scotia, Manitoba and British Columbia now agree to our protocol, which is very similar to our resolution... Manitoba has hired special investigators to work on workplace fatalities; (the same as) in Nova Scotia.

"We think we’re making positive inroads to really finish off our campaign that started 22 years ago."

Those positive inroads have been hard-won, as there is still a real reluctance by crown counsel and police — those responsible for enforcing Bill C-45 — to lay criminal charges, said Hunt.

"It’s not that we want to see CEOs and others go to jail, but we do want something done with the amount of people that die on the job… this would be the paradigm shift that we think we need to say, ‘It’s not OK for someone to lose their life because of their job,’" said Hunt.

It’s hard to find one clear reason why enforcement is so rare, said Ralph Balbaa, president of HITE engineering in Toronto.

"I honestly don’t know why there isn’t more enforcement of that act. Was it just a knee-jerk reaction to the Westray Mine (disaster), and after that they found it was harder to implement than they thought it was?" he asked.

There are probably a few different factors at play, said Adrian Miedema, partner in the Toronto employment law group at Dentons.

"One (is), the Crown would have to prove reckless and wanton disregard for the lives or safety of persons. And in the criminal law, there is what we call a mens rea element, which means a person has to have a ‘guilty mind’ in order to be convicted of a criminal offence. And in order for the police and the prosecutor to prove wanton or reckless disregard for the lives or safety of other persons… I don’t think that’s an easy thing to prove," he said.

Another issue might be that of familiarity with the legislation — though that’s less likely now that the law has passed its 10-year anniversary in May.

"There was some suggestion that the police just weren’t used to laying criminal charges in workplace situations, and that would explain some of the reluctance. But… they’ve had 10 years of experience with the bill, so that’s probably not really operative anymore," said Miedema.

Proper enforcement is not the only priority, said Balbaa — transparency about the circumstances of workplace accidents is also critically important. However, detailed information is seldom available.

"It’s usually very generic. What is happening to all of these forensic reports that we are writing that are detailed about what happened and how it happened and how to avoid it in the future?" he asked.

"You can’t access them — they’re not there. And we’re not learning from our mistakes."

Whether we’ll start seeing more enforcement under Bill C-45 remains to be seen, said Miedema. But, certainly, the groundswell of public support is growing.

"What we’re seeing now, as the years go by, is more union and public pressure in the case of very serious accidents for the police to lay criminal charges in addition to provincial occupational health and safety charges," he said.

"There is an increasing public appetite in very serious cases… for the police to get involved and to lay charges. And I think that probably will be a factor in the years ahead."