Some of the evidence uncovered about the death of three men at a Langley mushroom farm could not be used because WorkSafe BC investigators violated the Canadian Charter of Rights and Freedoms.
A report by deputy minister to the premier John Dyble reveals the WorkSafe investigators who probed the September 2008 A-1 Mushroom Farms deaths ignored a 2002 Supreme Court of Canada decision that ruled anyone who is the target of an investigation that could result in criminal charges has the same rights as someone being questioned by police.
That includes the right to have legal counsel present during questioning, the right against self-incrimination and the right to refuse to turn over evidence without a search warrant.
If a court finds those rights were violated, the evidence can be excluded at trial.
The Dyble report doesn’t specify exactly whose rights were violated during the investigation of the Langley incident that killed three and left two others permanently brain-damaged.
When a pipe burst in a shed used to mix gypsum, chicken manure and water, it released toxic levels of hydrogen sulphide gas that killed farmworkers Ut Tran, Han Pham and Jimmy Chan.
Two men barely survived. Tchen Phan is unable to speak and Michael Phan was left in a coma.
The Dyble report says prosecutors in the Criminal Justice Branch (CJB) determined certain statements obtained by WorkSafe investigators could not be used because they would be declared inadmissible for violating the 2002 Supreme Court ruling.
“ … because of the admissibility concerns [the CJB] would make the charge assessment without reference to the statements,” Dyble wrote.
The report does not say which statements were excluded, or who made them.
Eventually, 29 charges were laid under the Workers Compensation Act and Occupational Health and Safety Regulations against A-1 Mushroom Substratum Ltd., H.V. Truong Ltd. and four people.
The issue of the excluded statements was never raised at trial, because three of the accused pleaded guilty to 10 of 29 charges, including failure to have an occupational health and safety program in place, failure to educate workers about safety, failure to properly supervise workers and failure to make workers aware about confined space hazards.
Charges against a fourth person were dropped as part of the plea bargain.
A judge imposed fines of $350,000 against Van Thi Truong, Ha Qua Truong, Thinh Huu Doan and the companies they operated — A-1 Mushroom Substratum Ltd. and H.V. Truong Ltd.
No jail terms were imposed.
The report says a lawyer for WorkSafe tried to convince the prosecutors to use the excluded statements in August of 2010, but the question was “rendered moot” after the guilty pleas were entered in May, 2011.
Dyble also says the CJB warned WorkSafe about the need to adjust their investigations to get in line with the Supreme Court requirements about four years before the Langley mushroom farming fatalities occurred, in connection with an unnamed “investigative file from 2004.”
The information about the mushroom farm case was included as background in Dyble’s review of the WorkSafe investigation into the January 2012 Babine mill explosion in Burns Lake that killed two people.
In that case, no criminal charges were laid by the CJB because, Dyble said, the WorkSafe investigators failed to abide by the Charter restrictions imposed in 2002.
- with files from Black Press