The defence has proposed punishment by installment payment for the people responsible for the Langley mushroom tragedy that killed three men and permanently injured two.
Ut Tran (a Surrey resident), Han Pham and Jimmy Chan were killed and co-workers Tchen Phan and Michael Phan of Langley suffered permanent brain damage when they were exposed to high levels of toxic hydrogen sulphide gas inside a poorly ventilated pump shed at the mushroom composting and growing operation at 23751 16 Ave. on Sept. 5, 2008.
Guilty pleas to 10 work safety violations were entered in May by farm owners Ha Qua Truong and his wife Van Thi Troung along with business partner Thinh Huu Doan and the companies they operated -- A-1 Mushroom Substratum Ltd. and H.V. Truong Ltd.
During his presentation before a Surrey Provincial Court judge on Thursday (Sept. 22) Les Mackoff said A-1 is now bankrupt and the owners have no plans to ever resume mushroom composting.
Mushroom farming at H.V. Truong Ltd. has resumed, with 33 full-time employees and a renewed emphasis on safety, the lawyer told the court.
Mackoff said the Troungs (pictured below outside court on Sept. 22) have "taken substantial steps to become a model of workplace safety," adding the farm now has the "most stringent safety policies in the industry."
The defence lawyer said while a substantial fine is called for, his clients would have to close down their mushroom farming operation if a large dollar penalty was "hastily" applied.
He said the farm is deep in debt, largely due to the failed attempt at an in-house composting operation.
Mackoff suggested a $100,000 fine, payable in installments.
That outraged the victims' families, who said a more substantial amount and jail time is called for.
"The judge should fine them a high amount and put them in jail for a few years, not a few months," said Phoung Le, whose husband Michael Phan remains in a coma. She spoke through a translator.
Her daughter, Tracey Phan, took exception to a defence comment that the pain of the tragedy would last for years.
"We won't be living with this pain for a few years," she said.
"We will be living with this grief until we die."
Also speaking through a translator, widow Nga Trieu said the families of the victims have been the target of a whispering campaign within the Vietnamese community that aims to portray them as mentally unbalanced by their grief and claiming that their public comments are hurting the image of Vietnamese people in B.C.
She said the families are speaking out to protect others in the community "so that they do not fall into the same situation."
A tearful Hong Dang said she does not believe the men who entered the pump shed after the initial leak volunteered to go, as the owners have claimed.
"When workers go to work, they only hope at the end of the day to earn some money to bring home for their children and their wives, not to die" she said, also speaking through a translator.
Her young son Eric Tran (pictured at right with his mother) read a short statement about the loss of his father that said more than a fine was called for.
"I want the mushroom people at the mushroom farm to go to jail," he said.
Defence lawyer Mackoff insisted the workers were not told to enter "harm's way" by their employers.
"There was no order given by anyone to go and assist," Mackoff said.
"It was only a "natural inclination" to help that led men to rush into the shed, Mackoff said.
The defence entered into evidence an internal Worksafe BC report that criticized the agency for neglecting farmworkers safety.
"The agricultural industry is all but overlooked by workers compensation," the author of the report said, adding some worksafe managers would "be lucky to recognize a bale of hay if they saw one."
The Thursday hearing was also attended by NDP labour critic Raj Chouhan (seen below with Nga Trieu) who said the report's comments were no surprise to him.
Chouhan, who founded the Canadian Farmworkers union, said more needs to be done, including hiring more farm safety inspectors and giving them more power such as the right to stage surprise inspections.
"Obviously, what we have done is not enough," Chouhan told reporters.
He supports the BC Federation of Labour call for a c
oroner's inquest.
After the hearing WorkSafe spokesperson Donna Freeman told reporters the number of inspectors dedicated to the agriculture industry has been increased.
The report of the investigation into the mushroom farm incident will be released once the sentencing hearing has ended, she added.
During his remarks, the defence lawyer also disputed the prosecutor's claim that there would have been no deaths or injuries if confined spaces regulations had been properly followed.
"To say this is an entirely avoidable accident .. is a very long bow to draw in my submission," Mackoff said.
Mackoff said the Troungs spent $2.5 million, almost all of it borrowed money, to build a state-of-the art mushroom composting facility with the aid of licensed civil and environmental engineering companies.
"Mr Troung did not undertake a mom-and-pop operation and throw caution to the winds," Mackoff said.
But the construction company they hired to build the facility made the concrete floor too thin, causing cracking and then outright collapsing that required another $1.7 million in repairs and multiple shutdowns.
During the entire process of design and construction, said Mackoff, all the hired experts and all the inspectors from the Township of Langley and WorkSafe BC were more concerned about the smell than any hazards.
The composting process uses a mix of straw, chicken manure and gypsum that can create small amounts of hydrogen sulphide gas that causes a foul rotten egg odor, but is not fatal.
None of the advisors and consultants ever raised the prospect of a plugged pipe coupled with a shutdown that could create a large and fatal amount of hydrogen sulphide gas.
"The state of knowledge [generally in the mushroom industry] was such that the dangers .. were not well recognized," Mackoff said.
Previously plugged pipes in the shed were cleared in the same way the workers tried in 2008, Mackoff said.
The judge was expected to reserve decision on the sentence until a later date.
The three accused face a possible maximum maximum fine of $600,000 and up to six months in jail.
But previous court decisions have not come anywhere near the maximum.
Photos: Dan FERGUSON / Langley Times