Prosecution collapses on eve of high-profile criminal trial for workplace death

Sam Fitzpatrick's loved ones fought for more than a decade to see those accused in the young man's workplace death stand before a judge.

But just one week before a trial in the high-profile criminal negligence case was set to begin — B.C.'s prosecution service announced a decision Tuesday to stay the proceedings.

In a stunning last minute turnaround, the Crown said the death of an expert and the shifting stories of witnesses make convictions unlikely against construction and engineering giant Peter Kiewit and Sons and two of the company's former managers.

Mike Pearson describes himself as "the living representative" for Fitzpatrick's parents, who have both died in the years since the 24-year-old's death.

Fitzpatrick's dad was Pearson's best friend. The two men fought tooth and nail to bring the case to court. Pearson says there aren't words enough to describe his rage.

"Angry and broken hearted," Pearson told CBC of his reaction.

"It seems to me to be a lack of will to get things done and to bring people to accountability. Are not the laws of B.C. and the laws of Canada paramount — and we're going to defend those laws and make them stick?"

Differing expert reports

According to a statement issued by the prosecution service, Fitzpatrick was hand drilling a large boulder to prepare it for blasting on Feb. 22, 2009 when he was struck and killed by a rock that rolled from a point on the slope above him.

The accident happened on a hydroelectric project near Toba Inlet, north of Powell River.

Fitzpatrick's younger brother Arlen was working nearby and watched helplessly as the tragedy unfolded.

In 2011, WorkSafeBC levied a quarter-million-dollar fine against Kiewit for "reckless violations" of occupational health and safety regulations.

The fine was later reduced to $100,000 by the Workers Compensation Appeal Tribunal "on the basis that it was not satisfied Kiewit's conduct caused the fatality," according to the prosecution service.

At the family's urging, the RCMP started an investigation in December 2014, culminating in charges five years later.

"The theory at the time charges were initially assessed was that the company and management failed to sufficiently clear loose material from the area above Mr. Fitzpatrick and failed in allowing work to continue in the area above or upslope of Mr. Fitzpatrick before directing him to work in that location," the prosecution statement says.

In order to get a conviction on criminal negligence charges, prosecutors need to prove that the conduct of an accused is a "marked and substantial departure" from that of a "prudent person in the particular circumstances."

According to the Crown, a blasting expert whom they were relying on died in April 2021. A second expert — hired in July — gave a "replacement" opinion that was significantly different.

The second expert said the rock that killed Fitzpatrick might have come from outside the work site and been loosened by thawing ground conditions, lessening or eliminating the impact of the company and its employees.

Memories 'have degraded significantly'

After getting the second expert's opinion, the Crown says prosecutors went back to the witnesses who were expected to testify at trial.

"The resulting answers from the witnesses have materially affected the charge assessment, leading to the conclusion that the charge assessment standard was no longer met, and that the information should be stayed," the prosecution service statement says.

The Crown says that "it is clear now" that one of the accused managers held daily and weekly joint planning meetings, "undermining" the theory of the charges against him.

The evidence also suggests that the employees who were working on site on the day Fitzpatrick was killed were unable to definitively state where the rock came from.

The prosecution service cites the years it took to bring charges against the company and to bring the matter to trial as part of the reason there's no longer a "substantial likelihood of conviction" — the bar for moving ahead with charges.

"The memories of witness have degraded significantly," the prosecution service says.

The Crown says several of their witnesses are also still "employed by Kiewit or contracted as consultants and their recollections are limited or self-serving."

Pearson described the case as "dead in the water."

"I was extremely irate with how they dropped the ball on that," he said.

In previous statements to the CBC, Kiewit has said the company did not "willfully contribute to or cause this fatality," and that they had planned to fight the charges in court.