The release of the WorkSafe BC (WSBC) report into the cause or causes of the Babine Forest Products (BFP) mill explosion has added to the feeling among some that the owners of (BFP) have gotten off the hook.
The conclusion of the WSBC document – that the explosion was avoidable – coupled with observations made in the recent Crown Counsel decision not to proceed with charges, partly because not all evidence collected was gathered under standards that would likely satisfy the court, has led to politically partisan accusations that the investigation was bungled from the start.
Has justice been hamstrung in the process?
Without prejudice to your right to form your own opinion, there are salient and somewhat underreported sections of the Crown Counsel report that bear consideration.
First, the Crown was not asked by WSBC to consider criminal charges beyond those falling under provincial regulatory provisions included in the Workers Compensation Act, and Occupational Health and Safety Regulations. WorkSafe BC had never recommended that the Crown pursue charges under the Criminal Code of Canada.
Furthermore, WSBC had never recommended charges be laid against any BFP employees, managers, or executives. They recommended charges only against BFP as a corporate entity.
Importantly, the Crown report did not say all evidence would likely be inadmissible.
In fact, it said enough evidence would likely have been admissible to justify at least four serious charges under regulatory provisions, including failure to ensure the health and safety of workers.
Despite the availability of evidence to proceed with charges, the Crown still decided not to proceed. About three pages of the eight page ‘clear statement’ provided by the ministry to explain its decision were spent outlining how BFP would have a strong case for proving a defence of due diligence.
“The wisdom gained by hindsight is not necessarily reflective of reasonableness prior to the incident,” reads the Crown’s report. In other words, again in the words of the report, “The available evidence reviewed by criminal justice branch does not contain material establishing that the directing minds of Babine knew or ought reasonably to have known of the full extent of the hazards of combustible sawdust.”
“Babine would likely be able to establish that it did not foresee and could not reasonably have foreseen that sawdust could cause a catastrophic fire and explosion of the nature that occurred on Jan. 20, 2012.”
The Crown statement goes on to outline the steps which BFP had taken to mitigate dust buildup in the facility. It concludes that, “The evidence reviewed by criminal justice branch does not contain any material establishing Babine failed to take reasonable steps to mitigate those risks of which it was aware, or ought reasonably to have foreseen.” Dust levels at BFP were, according to evidence reviewed by Crown Counsel, “about the same as those in… other regional mills.”
The urgency of the situation at BFP was not apparent even to WorkSafe BC officials during their regular inspections. Despite recognizing that the buildup of dust was significant enough to recommend dust masks be worn, the report noted that “WSBC raised no concern that dust levels in the Babine mill posed a risk of explosion.” It can’t be overlooked that, according to report, “The manner in which WSBC conducted parts of its inspection/investigation would likely render significant evidence that it gathered inadmissible in court.” This is a serious problem but it’s not the whole story surrounding the Crown report on its decision not to proceed with charges under the Workers Compensation Act against BFP. Nowhere in the report does it say the Crown would have proceeded with charges had the evidence in question been collected to a more rigorous standard.
What it does say is that even where the evidence likely admissible would justify a charge, the likelihood of a successful defence outweighed the probability of a successful conviction.