Emily Gofton can't forget the morning that changed her life in June 2023.
“When I got the call, I immediately knew… it was a gut feeling,” the 24-year-old recalls.
The voice on the other end of the phone said her boyfriend Liam Johnston, 27, an apprentice plumber, was buried in a trench collapse while working on a drain in a home in Calgary.
She rushed to the scene but never saw Liam alive again. Experts say he likely died within minutes under the weight of the earth and concrete blocks. and it took nine hours for firefighters to recover his body.
Johnston was one of about 350 Canadians who die each year from work-related injuries, according to latest reports from the University of Regina.
He faces safety charges in connection with his death, which could result in a fine if convicted.
But Gofton, like Johnston's family, are talking about fines. is not enough and we hope for criminal liability in this case.
“We need a punishment that makes them say, 'Wow. It's not worth it.”said Kim Ivison, Johnston's mother.
In Canada, criminal charges are rare when someone dies on the job.. Now, withSome legal experts, labor groups and safety experts say this situation needs to change.
Westray's Law could lead to bosses being prosecuted
While health and safety regulations can result in corporations or employers being fined after a workplace death, there is also the possibility of criminal prosecution – due to a law motivated by the 1992 Nova Scotia mining disaster.
Known as “Westray's LawThe 2004 amendment to the Criminal Code is named after a mine in Nova Scotia where an explosion killed 26 workers in 1992.
When an employee dies on the job in Canada, employers almost always only face fines. For The National, CBC's Anis Heydari explains why criminal charges in workplace deaths are so rare and talks to people who say greater accountability will save lives.
Legislation allows business owners, executives, managers or supervisors to face prosecution and even jail time if someone dies on the job. This could include charges of criminal negligence causing death or manslaughter, which carry a maximum penalty of life in prison if convicted.
In a high-profile case The Ottawa Police Service recently filed criminal charges against the owner of Eastway Tank. for the death of six workers in an explosion that occurred there in 2022.
However, since Westray was introduced, charges and convictions have remained rare.
According to a study by the United Steelworkers (USW), Westray provisions of the Criminal Code have been used only 30 times since it came into force more than two decades ago, as a result, there were only 11 convictions and only four peopleOple was sentenced to prison.
The union insists onmany more prosecutions for workplace deaths because it suggests employers don't take the law seriously.
“There is no real containment,” said USW Ontario and Atlantic Canada director Kevon Stewart.
An employer could be found negligent, plead guilty, pay a fine and consider it a “cost of doing business,” he said.
Police investigation needed, coach says
Workplace safety consultant Rob Stewart also believes new criminal charges under Westray's law could provide a “deterrent effect” to prevent future deaths.
But Stewart, chief scientist at Calgary-based Intactix Systems, says Westray's law suffers from a lack of awareness and training on the part of legal authorities and investigators.
In many jurisdictions, investigators will see that a death is a “work-related incident” and will refer that to health and safety regulators instead of completing a criminal investigation, Stewart said.
“We still have police officers, and in some cases police services, who don't even know this law exists,” said Stewart, who has trained police forces, including Calgary, in investigating workplace deaths.
Charges in Liam's case
Under Alberta RulesFor any trench more than 1.5 meters deep, the employer must reinforce the trench with temporary structures or tilt the wall to prevent collapse.
According to the Calgary Fire Department, the trench in which Johnston died was at least three meters deep – well above his head. A cinder block retaining wall holding up a mound above the excavation site is visible in news photos and videos from the site.
Experts told CBC News such a wall could increase the danger.
Alberta Occupational Health and Safety (OHS) investigated Johnston's death, as did Calgary police.
The Calgary Police Service is one of the few in Canada with detectives assigned to investigate workplace injuries and fatalities.
Deputy Chief Cliff O'Brien could not comment directly on Johnston's case, but said that given that police investigate other types of deaths and things like car accidents, looking at workplace deaths makes sense.
“When someone dies, whether it's a crime or not, we have to investigate, even if it's just so we can tell the family what happened,” he said.
It is unclear whether criminal charges will be filed in connection with Johnston's death, but in May of this year, Alberta Health Services laid 11 charges against Johnston's employer, Mr. Mike's Plumbing.
The charges included “failing to protect a worker from the collapse of an excavation wall” and “failing to install protective structures.”
These allegations have not yet been tested in court, and the company is expected to make a statement on October 16.
CBC News has reached out to company owner Mike Brock for a response. The response came from his lawyer, who said in an email: “We hope the trial will clarify the facts of the incident and the events leading up to it,” and calling Liam Johnston's death “deeply sad.”
In a 2023 online statement following Johnston's death, the company said it had “fixtures in place” and that “at some point during installation this tragedy occurred.”
Not as simple as new charges, says former Crown prosecutor
To protect workers, David Mirol is not convinced that simply filing additional charges under Westray is enough to make a significant difference.
Mirol, a recently retired lawyer who both prosecuted and defended workplace safety claims, was Alberta's first Crown Counsel to handle cases involving workplace health and safety. He said he believes prosecutors carefully select cases based on a reasonable likelihood of a conviction.
“They don’t want to set a bad precedent in the future,” Mirol said. “You may lose the deterrent value of these criminal laws.”
He notes that the burden of proof for criminal charges is much higher.
Regulatory charges require only evidence that a safety rule exists and is not being followed; A criminal prosecution requires proof — beyond a reasonable doubt — of negligence and that the negligence caused death or injury, he said.
“If you are aware of a hazardous condition in your workplace and you fail to take action to eliminate that hazard in any meaningful way, then you are subject to criminal liability,” Mirol said.
Mirol is concerned that when workplace deaths are prosecuted, some of them target executives rather than corporate owners, including 2023 conviction in New Brunswick after an 18-year-old worker drowned at work, and ongoing case in Ottawa involving a 20-year-old worker who was electrocuted.
Despite the difficulty of prosecuting the case, Mirol suggested the consequences would be enormous if even one case landed a high-ranking corporate executive in prison for a workplace death.
“This issue will be discussed in every boardroom across Canada,” said Mirol, who now runs a workplace safety consulting company in Edmonton.
Relatives are waiting for what will happen next
Johnston's family and girlfriend are still waiting to see what happens with the workplace safety charges in Alberta and what plea the company will make.
Calgary police have referred the investigation to the Alberta prosecutor's office.
The Crown must now decide whether criminal charges are warranted in connection with Johnston's death, and no one at Mr. Mike's Water Network is facing criminal charges at this time.
His parents are still grieving the loss.
“I try not to think about it, but it's impossible,” said Adam Groves, his stepfather.
“This shouldn't have happened.”
“He was just starting to really understand himself and he had this real direction,” said his mother, Kim Ivison. “It was devastating”
His family and girlfriend hope someone from Mr. Mike's Plumbing will be prosecuted under Westray law.
“Ideally, I would like to see a prison sentence,” said Gofton, who has launched a public awareness campaign surrounding the death of her late partner.
“He's still in my head every single day. I think about him every night, every morning.”
