Alert: Crown Kills Union’s Private C-45 Prosecution

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In 2004, Lyle Hewer smothered to death after getting trapped by debris in the hog (a machine that converts wood waste to chips) at Weyerhaeuser’s New West Division sawmill. In March 2010, the United Steelworkers union launched a rare private criminal negligence (aka C-45) prosecution against Weyerhaeuser for his death.

A year later, a BC court ruled that the union had presented enough information supporting this claim for it to go forward. But the Crown just “stayed”—that is, dismissed—the prosecution, saying the evidence doesn’t present “a substantial likelihood of conviction against the company.” This is the third time the government has rejected C-45 charges for this incident.

According to the Vancouver Sun, Steelworkers regional director Steve Hunt said the Crown’s decision shows either a flaw in the C-45 amendment that made companies and their executives criminally liable for worker safety or the provincial justice branch doesn’t understand the law.

Hunt said the Steelworkers are now going to take the issue to Ottawa, seeking a stronger safety law. “In a case as egregious as Lyle Hewer, if this Crown here can’t get a conviction, or won’t even try, then there is something seriously wrong with the law,” Hunt said.

The Argument for C-45 Charges

The union claims that unclogging the hog from underneath was known to be dangerous—another worker had already been injured doing so. It also violated safety regulations. WorkSafeBC’s investigation concluded that even though the machine was known to be dangerous, senior management did nothing about it because of cost concerns. “While some mill supervisors recognized the danger of being struck by overhead materials while unplugging the hog, no level of mill management took the initiative to eliminate the hazard,” the report stated.

In March 2007, WorkSafeBC fined Weyerhaeuser $297,000 for this incident—the highest fine it had ever imposed against an employer at the time.

But despite WorkSafeBC’s findings and a recommendation from the police that a charge of criminal negligence causing death be laid against Weyerhaeuser, Crown Counsel refused to pursue criminal charges against the company.

In its statement staying the union’s prosecution, the BC Criminal Justice Branch said, “There is no evidence that management at Weyerhaeuser was aware that workers were entering the hog in these circumstances.”

The Implications

Next May is the 20th anniversary of the Westray mining tragedy, which lead to the C-45 amendment of the Criminal Code to ostensibly make it easier to hold corporate executives responsible for serious safety violations. Yet these developments in the Weyerhaeuser case make it clear that prosecutors are still very reluctant to use this legal tool to go after CEOs, officers and directors in criminal court. Their preference is still to treat safety incidents as regulatory offences and nothing more. Until and unless that attitude changes, C-45 will not have accomplished its goal of holding executives’ feet to the fire when it comes to worker safety.

For more on C-45, including an infographic, go the OHS Insider’s C-45 Compliance Center.