Thirty years after Westray disaster, families say justice still rare in worker deaths
Health & Safety Legislation westray law
By Michael Tutton
Family members who lost loved ones in the Westray coal mining disaster in Nova Scotia marked the 30th anniversary Monday, while continuing their calls for more criminal prosecutions of workplace deaths.
Genesta Halloran-Peters, who was scheduled to speak at a memorial gathering Monday evening, says the loss of her husband, John Halloran, had a huge impact on the direction of her life and the lives of their two children.
“My daughter was 11 weeks old and my son was 22 months old at the time,” she said in a recent interview from Antigonish, N.S.
“My children were so deprived of John’s wisdom, his love and support. Every special occasion his absence was felt.
“I think it would have been easier to deal with if it wasn’t preventable,” she said. “It was production at all costs; it was pure intimidation (of the workers).”
Halloran was one of 26 miners who died on May 9, 1992, when a methane and coal-dust explosion ripped through the shafts in Plymouth, N.S. Eleven miners’ bodies were never recovered from a shaft, located near the memorial site in New Glasgow, N.S.
Families want Bill C-45 applied more often
Halloran-Peters and Debbie Martin, the sister-in-law of miner Glenn Martin, who died in the blast, said the Criminal Code amendments brought in through Bill C-45 — referred to as the Westray law — should be applied more often. They say more training is required for police officers on how to investigate and provide evidence for potential prosecutions.
The amendments allow for criminal negligence convictions when the Crown can demonstrate that an employer was responsible for directing a worker and also showed “wanton or reckless” disregard for that worker’s safety.
However, Martin said the amendments haven’t resulted in many successful cases since the legislation was adopted in 2004. “It (the Westray law) is not being pushed enough. There’s not enough enforcement. There’s not enough training,” she said in a recent interview.
The United Steelworkers recently published a legal brief saying that to date, there have only been nine convictions or guilty pleas across the country — and no convictions in Nova Scotia.
Meanwhile, the Steelworkers note that about 900 to 1,000 workers die of work-related causes each year in Canada, across all sectors of the economy. Thousands of other deaths from occupational disease go unrecognized, the Steelworkers said.
The union’s national campaign, “Stop the Killing, Enforce the Law,” is calling for increased training for law enforcement and Crown prosecutors in using the Westray law. The union is also calling for the appointment of dedicated police officers and prosecutors to investigate and prosecute workplace fatalities when gross negligence is involved.
Alex Keaveny, the workplace safety prosecutor in Nova Scotia, prosecuted the province’s first charges under the Westray law, against the owner of an auto shop where a worker died in 2013 while using a welding torch to remove a gas tank.
However, the owner — who was later fined for workplace safety violations — was acquitted of criminal negligence charges in 2019.
Difficult criminal test to meet
Keaveny said in a recent interview that the test of “wanton and reckless” disregard for the safety of workers is a difficult one to meet.
“The test for criminal negligence is quite a stringent one and often the evidence to show that higher degree of negligence is hard to marshal … as in many of these circumstances the main witness is deceased,” he said.
Academic calls for redrafting of law
Steven Bittle, a professor of criminology at the University of Ottawa, said a federal government review and redrafting of the Westray law is needed to ensure it achieves its original aims of holding company officers accountable for worker deaths.
“It was promised as something that would fundamentally change corporate criminal liability and would hold people accountable, and by any standards it just hasn’t come close to achieving those goals,” said Bittle, who also is the author of “Still Dying for a Living,” published in 2012.
In most cases where companies were either convicted or pleaded guilty as a result of the Westray amendments, large fines have been imposed, rather than “flesh and blood” executives and owners being held accountable, Bittle said.
“It’s not achieving much in terms of deterrent, except in cases where it’s a small company that is owner-operated,” he said.
“For large companies, it’s merely the cost of business to pay a fine and go on doing business afterwards.”
Nine prosecutions to date
According to the United Steelworkers, of the nine successful prosecutions to date, there have been seven convictions of corporations, with fines imposed. Two individuals were convicted: a construction project manager in Ontario was sentenced to three and a half years, and the owner of a Quebec landscape company was sentenced to two years served in the community.
Halloran-Peters also said she’s come to believe the law has to be rewritten to make it easier to prosecute companies for criminal negligence. “Is it well worded? Is there a loophole that allows people to get out of it (prosecution)? I don’t want any ambiguity in that law,” she said.
Meanwhile, Halloran-Peters said she still finds great comfort in attending the memorial services alongside other family members of victims.
“I find peace going to the memorial because I realize I never was alone in my grief,” she said. “I never was alone in my fight for justice. I never was alone in dealing with the circumstances that came with this.”