Robert Stewart's investigator-level course targets the gap that has long kept Canadian police from pursuing criminal negligence charges
A new investigator-level training course meant to help police, Crown prosecutors and occupational health and safety regulators recognize when a workplace death crosses into criminal negligence is headed for release through the Canadian Police Knowledge Network (CPKN) in the first week of December, according to its lead developer, Calgary-based occupational psychologist Robert Stewart. Stewart, Consulting Director with the John Petropoulos Memorial Fund (JPMF), says the course is built to close a gap that has persisted since Parliament passed the Westray law amendments to the Criminal Code in 2004: investigators with no training to recognize corporate criminal negligence, and no protocol for pursuing it.
Built from a case Calgary police got wrong
The push for better training traces back to a single, well-documented failure, Stewart says. On August 1, 2009, a roughly 250-kilogram bundle of corrugated metal blew off an 18-storey downtown Calgary construction site and killed three-year-old Michelle Krsek as she walked with her family near the Calgary Tower, injuring her father and brother. The Calgary Police Service investigated, but no criminal charges followed; two of the three companies involved pleaded guilty to provincial safety code violations and were fined $15,000 each, the maximum penalty available under Alberta's Safety Codes Act at the time. Judge Gerald Meagher, who presided over the case, called the penalty provisions “woefully inadequate.”
The Calgary Police Service's response, a dedicated protocol for investigating workplace deaths through a criminal lens, is now driving a broader shift away from automatically handing workplace-death scenes to provincial OHS regulators, COS has reported. Stewart says the deeper problem was structural: when Parliament passed the Westray amendments, it never funded or trained police services to use them, leaving no policies or procedures in place for this kind of investigation. He developed an investigation protocol for the Calgary Police Service alongside Staff Sergeant Vince Hancock, work that eventually grew into the full training course now headed for national release.
Three pillars behind the new Westray course
The course Stewart is finalizing goes well beyond that first protocol. He says it is built on three pillars: the Criminal Code's elements of criminal negligence and organizational liability; how safety management systems establish a standard of reasonableness; and the human and organizational factors, including culture, decision-making hierarchies and competing priorities, that shape unsafe decisions. “Those three things coming together,” Stewart says, “the law, safety management systems and the human organizational factors with it, is what you need to have to understand how to build a case with a reasonable likelihood of conviction. So the course really embodies those elements.”
Stewart often illustrates the underlying problem with a famous experiment on selective attention, in which two teams, one in black and one in white, pass a basketball while a person in a gorilla suit walks slowly through the middle of the court. “60% of people don’t see the gorilla,” he says, “and that’s what is happening here. So, in the course, what we want to do is we want people to start seeing the gorilla, or the criminality, if you use it as a metaphor for that.” Police responding to a workplace death, he says, default to looking for direct violent crime; without training to recognize the signs of corporate criminal negligence, they routinely hand the file to the regulator, who has no jurisdiction to lay Criminal Code charges at all.
An earlier, more basic awareness course, developed with the Calgary Police Service and launched in November 2020, fell short of that goal, Stewart says: it led mainly to convictions of frontline supervisors and smaller employers, rather than the senior decision-makers the Westray amendments were written to reach. The new course is meant to go further. Professor Jennifer Quaid of the University of Ottawa's Faculty of Law provided legal review, and the Canadian Criminal Justice Academy's Calgary campus is conducting an operational review before the course is translated into French and released through CPKN.
A seven-point push for mandatory training
Adoption so far has been piecemeal. Toronto Police Service and Kingston Police Service have both made Westray-related investigation training mandatory for officers, and seven recommendations calling for broader mandatory adoption are currently before the federal government, Stewart says. A United Steelworkers tally marking the 33rd anniversary of the Westray mine disaster this year put the scale of the problem in context: just 27 charges and 12 successful prosecutions under the Westray law in two decades. Stewart points to the Metron Construction criminal negligence case, in which a project manager was sentenced to 3.5 years in prison after a 2009 scaffold collapse killed four workers, as one of the rare examples of the law reaching the people Parliament intended it to reach. The federal Department of Justice's own background on the Westray Law confirms that intent to modernize corporate criminal liability for workplace deaths and injuries, though enforcement has lagged behind it for two decades.
Stewart says employers remain largely unaware of, or openly sceptical about, that exposure. “I actually had one fellow, a director of health and safety for a very large construction company, tell his boss that, oh, don’t worry, this doesn’t apply to us because you have to intend to want somebody to die,” Stewart says. “That’s not the way that this works. That’s actually murder in that case. So there’s a lot of misinformation that is out there, and they do need to become informed.” Passing a safety audit, keeping low workers’ compensation board rates, or landing on a contractor registry as “green” or “A-rated,” he adds, is “the standard stuff that CEOs say, yeah, we’re good.” Investigators trained under the new course, he adds, will be looking at how safety programs are actually carried out on site, not just what is written down.
