Who Killed Sam Fitzpatrick?

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

The case "R. v. Peter Kiewit Sons ULC (Kiewit), Timothy Rule and Gerald Karjala," might have changed labour history in Canada. But just before it was slated to open in a Vancouver courtroom, the BC Prosecution Service, or BCPS, announced a surprise decision to stay the proceedings.

The news stunned many observers who have followed this tragic case for more than a decade since a boulder crushed the life out of Sam Fitzpatrick in 2009 at a Toba Inlet worksite operated by the Kiewit construction firm.

Despite a dangerous rock fall and near miss the day before Fitzpatrick was killed, Kiewit supervisors ordered Sam and his brother Arlen to work downslope from heavy equipment again that day. (Original Tyee coverage of this controversial case is linked here and a followup here.)

Who cares about another workplace death at an obscure construction site? After all, Canada counts some 1,000 work-related deaths each year, most of which go unnoticed by the public. This case obviously was of profound interest to Fitzpatrick’s family. It mattered to family friends like construction worker Mike Pearson, who had advocated for criminal charges against Kiewit. It consumed the Fitzpatrick brothers’ father Brian, who tirelessly pressed for justice until he died in 2017.

The case also is of compelling interest to United Steelworkers director Steve Hunt, who heads up the union’s Stop the Killing, Enforce the Law campaign. Although the Fitzpatricks were not members of USW, the union has played a key role in advocating for accountability in Sam’s death. Said Hunt: “We are extremely disappointed in the decision from the BC Prosecution Service not to prosecute the case. 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.”

The case certainly interests me deeply. I have covered it for nearly a decade now, both on The Tyee and in a book about the Westray Mine disaster and other workplace death issues. I have come to know and respect Brian Fitzpatrick and Mike Pearson and to share their sorrow about Sam’s death.

I am among the many who think the stay, announced Aug. 31, should be reversed. I urge B.C.’s Attorney General David Eby to recommence the proceedings as he is empowered to do by Section 579 (2) of Canada’s Criminal Code.

Among the academics who have been watching the case closely is Steve Bittle at the University of Ottawa. He shares in the bitter sense of being blindsided. Bittle, author of the landmark study of workplace deaths in Canada entitled Still Dying for a Living, told me, “The Crown’s decision in this case is both shocking and disappointing. For Sam Fitzpatrick’s family and loved ones, particularly his late parents who struggled so hard to see justice for their son’s death, 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.”

That aptly describes, I think, why B.C.’s attorney general should revive the case. If the cancelled trial had proceeded, it would have been the first time that the Westray Act, which in theory provides for criminal charges against a company that takes unnecessary risks with the lives and safety of workers, was used against a major corporation. The case could have signalled a long-deferred new attitude toward workplace deaths and management negligence in Canada.

Now it falls to Eby to create important such new precedents by recommencing the trial.

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.”

It is frustrating to see delays in prosecution create the excuse for now avoiding it altogether. Two years after charges were first laid, a dozen years after Sam Fitzpatrick was killed and only a week before the long-delayed trial was slated to finally begin, the BCPS decided that it no longer believed that the case offered “a substantial likelihood of conviction.”

During the long delay between the death and the scheduled trial, the expert witness upon whose testimony the Crown case relied on had died and the replacement expert witness, hired in July 2021, provided an opinion that made conviction less likely. Other key witnesses, several of whom were Kiewit employees or contractors were likely to provide testimony, the prosecutors said, that would weaken the Crown’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.

“Cumulatively, these changes mean there is no longer a substantial likelihood of a conviction since the Crown cannot definitively exclude the possibility that the rockfall was a random event originating outside of the work zone.”

This willingness by the prosecutor to give credence to the notion that the rock randomly dislodged from a place not under the supervision and control of Fitzpatrick’s Kiewit superiors is odd, given the fact that WorkSafeBC’s own regulations for work around excavations clearly state: “Trees, utility poles, rocks and similar objects adjacent to an area to be excavated must be removed or secured if they could endanger workers.”

Heavy equipment was operating above the Fitzpatricks when the boulder dislodged and rolled downhill. Even if you accept the implausible assertion that it wasn’t that equipment but a mysterious force that sent the boulder on its way to crush Sam, the regulation appears to impose a responsibility on the company and its agents to remove or secure such rocks.

In any case, Sam ended up dead. He should get his day in court.

Pearson is outraged by the decision to stay charges against Kiewit and its two employees.

“I lived with this case in support of Brian Fitzpatrick’s fight against the Kiewit corporation for 10 years. We started with the fight against Kiewit’s appeal of the WorkSafeBC fine and saw it through to unprecedented criminal charges being laid.

“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,” Pearson contends. In his opinion, during the fact-gathering and case preparation, “There were many mistakes and missteps at all levels, that I would hope never have to occur again in future cases.”

Pearson is hardly alone in saying the fate of the Fitzpatrick case, quashed or allowed to proceed, will send a critical message to Canadian employers and workers. “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?”

Pearson can cite a long list of flaws in the investigative process. For example, he said that Kiewit had removed the rock that killed Sam from the job site, thus denying RCMP access to what might have been key evidence about how the boulder came to plummet down the slope. He also pointed out that the WorkSafeBC appeal process had refused to recognize Peter Louvros, a rock scaler with 25 years of experience, some of it with Kiewit, as an expert witness, thus discounting Louvros’s account of safety failures he had observed on Kiewit sites, including the one where Sam was killed. (You can read a document Louvros prepared about the case here.)

Pearson thinks such shortcomings in the preparation of the case should not result in the denial of justice to Sam Fitzpatrick and his family. To the contrary, he argues that recommencing the trial would afford an opportunity to correct such flaws.

Bob Kula, who speaks for Kiewit, told me his firm is pleased with the decision to stay charges. In an email, Kula wrote: “From the time the British Columbia Prosecution Service filed the charges in May 2019, which was ten years after this tragic event, it has always been our company’s firmly held belief — and that of our experts — that the rockfall that took Sam’s life was a tragic accident and not caused by the actions of any personnel working on the site. While we were prepared to present a vigorous and comprehensive response to the charges at trial, we are gratified that the British Columbia Prosecution Service concluded that speculation and suggestions that Kiewit employees were responsible did not meet the burden necessary to justify going to a trial. None of this takes away from the tragedy of what happened to Sam or the impact on all those he left behind, but an attempt to assign criminal blame where criminal blame does not exist doesn’t do anything to protect worker safety.”

And yet, the original WorkSafeBC investigation into Sam’s death said that Kiewit and its managers had failed in their responsibility to protect their workers and called for a precedent-setting fine of $250,000. Although the fine was reduced on appeal, the appeal board observed that the company “committed high risk violations with reckless disregard.”

The appeal ruling goes on to say, “In our view, the employer’s failure to comply” with regulations by allowing “drilling activity to take place below previously blasted areas… created the likelihood of serious injury occurring.”

The RCMP agreed that the evidence they gathered supported this conclusion, and that criminal charges against Kiewit and its two employees were warranted.

Only now, a dozen years after Sam’s death, has the BCPS decided to stay those charges. J. Brian McKinley of the BCPS told me, “We don’t make these decisions lightly, either to charge or to stay charges. The job we do is very difficult.” He said that the decision to stay coming so close to the start of trial was not unusual.

Cynical observers will be tempted to see all this as one more example of the power of rich corporations to deploy their lawyers to reduce or totally avoid consequences when their negligence kills workers. I admit that I share that temptation.

Surely it remains preferable to go to trial and let the adversarial process there test all the claims that have been made.

Maybe the truth will come out in court, and maybe those who mourn for Sam Fitzpatrick will be able to see some accountability for his death.

And maybe Canada will finally see a new and serious approach to protecting workers placed in harm’s way while following orders from their corporate employers.

The power to recommence the stayed charges lies in the hands of this province’s attorney general. Over to you, minister.