Criminal negligence charges stayed in case where young man was killed by boulder at worksite

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Criminal negligence charges stemming from death of Sam Fitzpatrick at a B.C. worksite have been stayed – just one week before the long-awaited trial was scheduled to begin.

The 24-year-old was killed after a boulder rolled into him at a Kiewit hydroelectric project near Toba Inlet back in February 2009. Loose material from blasting operations had accumulated uphill, according to prosecutors, and another boulder had rolled down the same slope the previous morning, prompting crews to temporarily halt work and assess the safety on site.

The deceased's family fought for years to have police investigate the tragedy, and to have Fitzpatrick's employer held accountable, and charges were eventually laid in May 2019 against Peter Kiewit Sons ULC, construction manager Timothy Rule and crew superintendent Gerald Karjala.

Their trial was set to begin on Sept. 7, but the B.C. Prosecution Service announced Tuesday that several developments in the case, including the death of a key expert earlier this year, had led the Crown to request a stay of proceedings.

"Crown counsel are obliged to continually asses the viability of all prosecutions," the BCPS said in a statement.

"In this instance, the death of the main Crown expert, the nature and content of the replacement opinion, changes in the anticipated testimony of witnesses, and additional information received during pre-trial interviews, have all led to the conclusion that the charge assessment standard can no longer be met."

Prosecutors said their original expert and replacement expert disagreed on a number of key issues, and that witnesses' memories have "degraded significantly" in the many years since the tragedy. The RCMP did not begin investigating until December 2014, more than five years after Fitzpatrick was killed.

"Several Crown witnesses remain employed by Kiewit or contracted as consultants and their recollections are limited or self-serving," the BCPS added. "The inconsistencies in witness accounts presents a barrier to the Crown presenting a cogent version of events."

Prosecutors said they weren't even confident they would be able to prove the boulder hadn't tumbled down from an area outside of the work zone as the result of a "random event," partly because the rock fragments were unavailable to be assessed by their experts.

The Crown said none of their witnesses considered the material on the slope above Fitzpatrick to be a safety concern on the day of his death.

WorkSafeBC previously fined Kiewit $250,000 after finding it had allowed work to proceed following the first boulder incident without clearing loose material uphill that had the potential to dislodge, though the company managed to have the penalty reduced to about $100,000 on appeal.

Prosecutors said the Workers Compensation Appeal Tribunal's decision to decrease the fine was made "on the basis that it was not satisfied that Kiewit's conduct caused the fatality."

Read the B.C. Prosecution Service's full statement on the decision to stay charges below.