STONE DEAD

“If the law supposes that, the law is an ass.”
— Charles Dickens —

SAM FITZPATRICK DIDN’T HAVE TO DIE. His parents were sure of it. They were sure his employer had a duty to protect Sam—and failed. They worked long years to win a chance to prove it in court. That chance is gone.

The BC Prosecution Service (BCPS) dropped all proceedings against Sam’s employers on August 31.

The trial would have made history. It would have been the first time any major employer had been charged under the 17-year old “Westray law”—a law that allows for criminal charges against employers who don’t live up to their responsibility to provide a safe workplace.

A huge boulder crushed the life out of Sam Fitzpatrick in 2009 at a Toba Inlet B.C. worksite operated by Kiewit construction—the day his bosses ordered Sam and his brother Arlen back to work downslope from heavy equipment, at a location right next to where a dangerous rock fall had just missed them the day before.

WorkSafeBC (the provincial workplace health and safety agency) investigated Sams’ death. It found that Kiewit and its managers had failed in their responsibility to protect their workers and called for a precedent-setting fine of $250,000. The fine was reduced on appeal.

However the appeal board observed that the company “committed high risk violations with reckless disregard”; and also “created the likelihood of serious injury occurring.”

Sam’s parents weren’t satisfied. It took ten long years of work to finally get the prosecution service to lay criminal charges against the company in 2019. It took another two years to set a trial date. It turned out to be too much time for the BCPS.

In announcing the stay, the government said that a recent review of the Crown case suggested “the available evidence no longer satisfies the charge assessment standard for the continued prosecution of the charged corporation and individuals for any criminal offence.”

Prosecutors believed the long delay between Sam’s death in 2009 and the scheduled trial in 2021 had significantly reduced the chance of a conviction: expert witnesses had died, replacements were less supportive, other key witnesses were Kiewit employees or contractors, and so not likely to provide testimony that would help the government’s case.

The BCPS statement says: “The memories of witness have degraded significantly. As noted above, there was a delay of almost six years in initiating an RCMP investigation (February 2009 to December 2014) and another two-and-a-half years until the Crown had all the material it needed from police. Several Crown witnesses remain employed by Kiewit or contracted as consultants and their recollections are limited or self-serving. The inconsistencies in witness accounts present a barrier to the Crown presenting a cogent version of events.

The decision to abandon the case against Kiewit stunned and disappointed many who were hoping a win would strike a blow for working folks.

United Steelworkers director Steve Hunt heads up the USW Stop the Killing, Enforce the Law campaign. “We are extremely disappointed in the decision from the BC Prosecution Service,” says Hunt. “Sam Fitzpatrick died more than a decade ago and criminal charges were only laid in 2019 after a long campaign for accountability led by Fitzpatrick’s friends, family and our union… Sam and the Fitzpatrick family deserved justice, and this is not it.”

Steve Bittle, at the University of Ottawa, is the author of Still Dying for a Living, a landmark study of workplace deaths in Canada. He says: “The Crown’s decision in this case is both shocking and disappointing. For Sam Fitzpatrick’s family ... the decision not to proceed is surely beyond heartbreaking. It sends the message that the justice system is incapable or unwilling to hold powerful corporations to account for injuring and killing workers.”

Fitzpatrick family friend and worker advocate Mike Pearson says, “All of the investigators from day one, to the last RCMP interview, were unprepared for the level of aggression Kiewit would unleash to protect their reputation,”

 “If we can’t get justice in Sam Fitzpatrick’s case, so seemingly simple to figure out, how is the next person able to expect a just and reasonable result from our legal system?”

The B.C. Attorney General has the power to revive the case against Kiewit. All those who have fought so long to win justice for Sam Fitzpatrick are likely to see that he does.

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