Emily Gofton can’t forget the morning that changed her life in June 2023.
“When I got the call, I knew immediately … that gut feeling,” the 24-year-old recalls.
The voice on the other end of the phone said her boyfriend Liam Johnston, 27, a plumbing apprentice, had been buried in a trench collapse while working on a sewer job at a Calgary home.
She rushed to the scene, but never saw Liam alive again. Experts say he likely died within minutes under the weight of earth and concrete blocks and it took nine hours for firefighters to recover his body.
Johnston was one of about 350 Canadians who die every year from a traumatic injury suffered at work, based on newest reports from the University of Regina.
There are regulatory charges for safety violations in his death, which could lead to fines if there’s a conviction.
But Gofton, as well as Johnston’s family, say fines aren’t enough and hope for criminal charges in this case.
“We need punishment that makes them say, whoa. That’s not worth it,” said Kim Ivison, Johnston’s mother.
In Canada, criminal charges when someone dies at work are rare. Now, some legal experts, labour groups and safety professionals argue that needs to change.
While occupational health and safety regulations can see corporations or employers fined after a workplace death, there is also the possibility of criminal prosecution — due to a law motivated by a 1992 Nova Scotia mining disaster.
Known as the “Westray law,” the 2004 amendment to the Criminal Code is named in honour of the Nova Scotia mine where 26 workers were killed by an explosion in 1992.
Why criminal charges are rare for workplace deaths in Canada
The legislation allows for company owners, supervisors, managers or executives to be prosecuted and even face jail time when someone dies on the job. That could include charges of criminal negligence causing death or manslaughter, which if convicted carry a maximum sentence of life in prison.
In a high profile case, the Ottawa Police Service recently laid criminal charges against the owner of a company called Eastway Tank for the death of six workers in an explosion that happened there in 2022.
However, since Westray was introduced, charges and convictions remain rare.
According to research from the United Steelworkers union (USW), Westray provisions of the Criminal Code have only been used 30 times since coming into effect more than two decades ago, resulting in just 11 convictions and only four people sentenced to prison.
The union is pushing for many more workplace death criminal prosecutions because it says employers aren’t taking the law seriously.
“There’s no real deterrence,” said USW Ontario and Atlantic Canada director Kevon Stewart.
An employer could be found negligent, plead guilty, pay a fine, and consider it “the cost of doing business,” he said.
Workplace safety consultant Rob Stewart also believes more criminal charges under the Westray law could provide a “deterrent effect” to prevent future deaths.
But Stewart, chief science officer with Intactix Systems based in Calgary, says the Westray law suffers from a lack of awareness and training with legal authorities and investigators.
According to Stewart, in many jurisdictions investigators will see that a death is a “work-related incident” and pass it off to occupational health and safety regulators instead of completing a criminal investigation.
“We still have police constables, in some cases police services, that aren’t even aware that this law exists,” said Stewart, who has trained police forces, including Calgary’s, on investigating workplace deaths.
Under Alberta regulations, for any trench deeper than 1.5 metres, an employer has to shore up the trench with temporary structures or slope the wall away to prevent a cave in.
According to Calgary’s fire department, the trench in which Johnston died was at least three metres deep — well above his head. A cinder block retaining wall holding back a hill above where the excavation occurred is visible in news photographs and video of the scene.
Experts told CBC News a wall like that could add to the danger.
Alberta Occupational Health and Safety (OHS) investigated Johnston’s death as did Calgary police.
Calgary’s police service is one of the few in Canada with detectives specially tasked to look at workplace injuries and fatalities.
Deputy Chief Cliff O’Brien could not comment directly on the Johnston case, but did say given police investigate other types of deaths and things like car accidents, looking at workplace deaths makes sense.
“When somebody dies, regardless of whether there’s criminality or not, we should be investigating, even if it’s just so that we can tell the family what took place” he said .
It is not clear whether criminal charges will be warranted in Johnston’s death, but in May of this year, Alberta OHS laid 11 regulatory charges Johnston’s employer, Mr. Mike’s Plumbing.
The charges included “failing to ensure a worker was protected from the collapse of a wall of an excavation” and “failing to ensure protective structures were installed.”
Those charges have not yet been tested in court, and the company is expected to make a plea Oct. 16.
CBC News wrote to company owner Mike Brock for a response. A reply came from his lawyer who said in an email “we trust that the legal process will clarify the facts of the incident and the events leading up to it” and calling Liam Johnston’s death “profoundly sad.”
In a 2023 online statement following Johnston’s death, the company said it had “shoring on site” and that “at some point while installing, this tragedy occurred.”
To protect workers, David Myrol isn’t sure that just laying more charges under Westray provisions is enough to shift things meaningfully.
Myrol, a recently retired lawyer who has both prosecuted and defended workplace safety charges, was Alberta’s first Crown attorney focused on workplace health and safety cases. He said he believes prosecutors are choosing cases carefully based on a reasonable likelihood of conviction.
“They don’t want to create a bad precedent moving forward,” said Myrol. “You may lose the deterrent value of that criminal legislation.”
The burden of proof is much higher for a criminal charge, he notes.
Regulatory charges only require evidence that a safety rule exists and wasn’t followed; criminal prosecutions require evidence — beyond a reasonable doubt — of negligence, and that the negligence caused the death or injury, he said.
“If you have knowledge of a hazardous circumstance at your work site, and you fail to address that hazard in some meaningful way, then you’re exposed to criminal liability,” said Myrol.
When workplace deaths are prosecuted, Myrol is concerned that some target supervisors rather than corporate owners, including a 2023 conviction in New Brunswick after an 18-year-old worker drowned on the job, and an ongoing case in Ottawa involving a 20-year-old worker being electrocuted.
Despite the difficulty of prosecution, Myrol speculated there’d be a huge impact if even a single case sent a high-ranking corporate executive to jail for a workplace death.
“It would be discussed in every boardroom across Canada,” said Myrol, who currently leads a workplace safety consultancy in Edmonton.
Johnston’s family and girlfriend are still waiting to see what will happen with the Alberta OHS charges and what plea is entered by the company.
The Calgary police have referred their investigation to Alberta’s Crown prosecution office.
It is now up to the Crown to decide if criminal charges are warranted in Johnston’s death, and no one at Mr. Mike’s plumbing has been charged criminally at this time.
His parents remain grief-stricken over the loss.
“I try not to think about it, but it’s impossible,” said Adam Groves, his stepfather.
“It didn’t have to happen.”
“He was just starting on really figuring himself out and he had this real direction,” said his mother Kim Ivison. “It was devastating”
His family and girlfriend are hoping that someone from Mr. Mike’s Plumbing will be prosecuted under the Westray law.
“Ideally for me, I would like to see jail time,” said Gofton, who has launched a public awareness campaign connected with her late partner’s death.
“He’s still in my head every single day. I think about him every night, every morning.”
