With its investigative techniques under fire over its handling of the Babine sawmill explosion, WorkSafeBC is just weeks away from delivering a report to the Criminal Justice Branch on a second deadly sawmill blast.
The investigation into the explosion at the Lakeland Mills plant in Prince George in April, 2012, is largely complete. Jeff Dolan, director of WorkSafeBC's investigations division, is now wondering how to word the report in light of what he says are an entirely new set of rules from criminal justice.
It's a spat about process between two arms of government, so routine in some ways. But for the families of the dead and wounded, for the workers who continue to toil in the industry, it's the difference between feeling justice was served, and not. Premier Christy Clark acknowledged as much on Thursday, when she asked the head of the civil service to review how the Babine case was handled.
The two mill explosions, just months apart, killed four workers and left 42 others seriously injured.
WorkSafeBC initiated one of the largest investigations in its history after two men were killed and 20 injured in a Jan. 20, 2012, fire and explosion at the Babine mill in Burns Lake, west of Prince George. However, the Criminal Justice Branch ruled out potential regulatory charges, citing the inadmissibility of some evidence gathered by the independent agency's investigators.
Mr. Dolan, a former RCMP officer and former director of the B.C. coroner's service, says the investigations at Babine and Lakeland were handled in the same way they have been done at WorksafeBC since the 1990s – they are looking for the cause when there are fatal and serious injuries in the workplace.
That process, he said, has been unquestioned until now. Crown counsel approved charges in 31 cases investigated by Workplace BC between 1996 and 2010, 24 of which resulted in a conviction. Yet the Crown ruled out regulatory charges against the owners of the Burns Lake mill, citing flaws in the approach of WorkSafeBC such as failing to obtain search warrants and inform witnesses of Charter rights before agency investigators proceeded to take statements.
"It's a new interpretation of the Act to us," Mr. Dolan said in an interview.
If the way WorksafeBC conducts investigations yields evidence that is deemed inadmissible in court, then something has to change. Mr. Dolan said in an interview his agency is seeking a legal opinion, as well as a meeting with the Criminal Justice Branch to "understand each others' mandates." He said the breach between the two arms needs to be resolved quickly, not just for the Lakeland case.
"It's very significant. We have concluded large investigations using the same investigative methodology, and they have approved charges in other cases. In the decision of Babine, the authority we had worked under would now, for the first time, render our evidence inadmissible."
But Neil MacKenzie of the Criminal Justice Branch said nothing has really changed. "The branch applied the same charge assessment standard that we do in all cases … The decision in this case was based on the specific circumstances of this case. It wasn't a matter of the branch changing its approach."
He would not speculate on what that might mean in the Lakeland case. "What may present an issue in one case may not be an issue in another case."
A prominent employment-relations expert says it's inexplicable that the province's workers' compensation agency didn't consider Charter issues in the Burns Lake mill probe.
"The Charter is there. It has been there since 1982. Therefore there's nothing new in the world about investigations having to be sensitive to individuals Charter rights," said Ken Thornicroft, a lawyer and professor of law and employment relations at the University of Victoria. "This isn't just an issue for WorkSafeBC. It's an issue for any regulatory body, whether it's the securities commission or the vehicles branch or anybody else who is carrying out an investigation that could result in somebody being placed in legal jeopardy."
Clarity is needed, and for those workers involved in the Lakeland tragedy, those answers are needed quickly.
With a report from Ian Bailey in Vancouver
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