Canadian Railroads > Drop the Charges Say Lac-Megantic Accused

http://www.cbc.ca/news/canada/montreal/lac-m%C3%A9gantic-accused-want-charges-dropped-1.2749659

"It should now be obvious that the charges against each of these workers no longer have their place," said lawyers Thomas Walsh and Marc-Antoine Cloutier.

"To continue along this path would not serve the public interest and would in no way help prevent such an incident from happening again."

Walsh is representing Harding, while Cloutier works for a legal clinic that is defending Labrie.

Walsh also called for a public inquiry into the tragedy, going so far as to say it would be more important than the long-running Charbonneau Commission looking into corruption in the construction industry.

Personally, I would agree with the intent and thought of dismissing the charges. Sure I will be flamed or shamed by some of the more knowledgeable TO members south of the border!!!! Doug

Nothing good will come out of continuing with the charges other than the creating expenses and giving the media something to talk about.

Posted from Android

A few weeks ago I mentioned that the jury could probably convict the engineer on negligence and whatever negligence resulting in death is in Canada. (Basically, you screwed up without any intent to hurt anyone.) He's done it the same way hundreds of times, the company knows he's done it that way, nobody cared. Until it was too late.

Doug,

If they want to flame or shame you for those thoughts, they can jump on me too. I feel the same way.

Brian

Posted from iPhone

I agree, a mistake is a mistake and there is no way he intentionally tried to hurt anyone. Fact is his memory of that night will haunt him for all his life. Let it go.

I wonder if that magnanimous feeling extends to Mr. Burkhardt........

Sorry, but these gents were negligent. Doesn't matter what the corporate policy was at the end of the day, 47 people died and these three (as well as the poor management, maintenance, etc. by the corporation in general) caused it.

I know that none of this was intentional and they will live with the results of their decisions that night forever after. But the families that lost loved ones, people that lost property, they need to see justice served.

CV the civil e in NJ

These cases will have to meet the precedent set in 1952, when a telegraph operator on the CN at Red Pass Junction BC caused a head on collision between a troop train and a passenger train at Canoe River BC when he copied a train order incorrectly. Many soldiers died in the collision and subsequent fire. John Diefenbaker, later to become Prime Minister defended the operator against the manslaughter charges in that case.

Hmmm, intersting case for comparison purposes. How did it turn out in the end?

For my part, I agree that pursuing criminal charges against the front line employees crosses the line from "justice" to "vengeance." Not sure how I'd come down on the company itself and higher-ups within it, but even there I haven't seen good evidence of criminal intent. Gross negligence, maybe. Not sure whether that distinction applies in Canadian law or not.

Mr Harding et al will have to explain their actions the night of July 5/6 2013. Did they follow company policy that night? Yes or No. Did they intend to cause the death and destruction that occurred...no of course not. I would not want to take the stand and say that I violated company policy on regular basis. Not a great defence in my opinion.

Neil Compton
Calgary, AB

If we're going to dismiss corporate policy and relegate responsibility to the lower people on the totem pole, both criminal justice systems, here and in Canada are in real trouble.

march_hare Wrote:
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> Hmmm, intersting case for comparison purposes.
> How did it turn out in the end?

This case revolved around "willful negligence" and "due diligence"

This involved a collision between a "passenger extra" (the troop train) and a scheduled first class passenger train.

The troop train had been experiencing operating delays.

Originally, the troop train and the scheduled train were issued a "meet order" specifying a siding where the trains would meet.

Subsequently, the meet location had to be changed due to the delays encountered by the troop train.

The trains involved were issued another train order that said "Passenger Extra ----- meet # --- at (location) instead of (location).

The operator at Red Pass Junction BC repeated the train order correctly to the train dispatcher dictating it over the telephone, but he did not copy the words directly onto a train order form as they were spoken to him.

He wrote them down afterwards from memory, and copied them wrong as to the location of the meet.

As a result, the passenger extra went beyond the meeting point and collided with the scheduled train on a curve just short of the location on the erroneous train order.

This was in the era of steam locomotives, so the engine crews on both trains died.

The troop train included several wooden bodied passenger cars equipped with coal stoves for heat. These cars telescoped into each other and caught fire causing many deaths among the soldiers.

Only after the collision was the incorrect train order discovered.

Canada still had the death penalty for certain crimes in 1952, and the operator was looking at being executed for his crime.

This was during the Korean War, however because this was a "police action" (non-declared between Canada and North Korea), certain aspects of the "War Measures Act" did not apply.

He admitted to making the error, and was aware that the rule book specifically said to copy train orders directly to the appropriate form. This is where "willful negligence" comes into play. He knew what he was doing and that it was wrong when he failed to copy the train order immediately. This was compounded by the fact that he repeated the order back to the train dispatcher correctly, which meant that he negated a safety feature. Had he copied the order wrong and repeated it back to the dispatcher on the phone, the dispatcher and other operators would have caught the error.

The "Crown" (prosecutor) wanted a charge of manslaughter 1 against the operator, which could have involved execution or life imprisonment. The defence lawyer, John Diefenbaker was successful in having the charges reduced. Canada uses the legal precedent system and the bar for determining "willful negligence"was set extremely high by this case. So high that the defence in the Megantic trial suggested the Crown seek prosecution on a different charge.

There is another non-Federal case relating to a Quebec mining railway incident (Quebec Cartier?) which further set the bar for determining negligence very high.

The Canadian Court system allows for a negotiated plea bargain between the Crown and the Defence.

The question is, what type of plea bargain would satisfy those who lost family and friends in the disaster.?

Today, a cairn marks the site of the collision at Canoe River BC, and a memorial wall at the barracks at Edmonton names the individual soldiers. The Royal Canadian Horse Artillery still marks the occasion with an annual memorial service.



Edited 1 time(s). Last edit at 08/30/14 06:51 by eminence_grise.

Lerchy Wrote:
-------------------------------------------------------
> Mr Harding et al will have to explain their
> actions the night of July 5/6 2013. Did they
> follow company policy that night? Yes or No.
> Did they intend to cause the death and destruction
> that occurred...no of course not. I would not
> want to take the stand and say that I violated
> company policy on regular basis. Not a great
> defence in my opinion.

I don't know if the Quebec judicial system allows for pre-trial motions of dismissal, but it will be interesting to see the evidence presented for the various charges. In the US, a judge will often dismiss certain charges with a determination the specific evidence is insufficient to support the accusation. The jury never sees it.

The prosecution will have to overcome a few hurdles of their own. One of the biggest is that Mr Harding will likely assert he had tied down a similar number of hand brakes for years, and the company was aware of that. Even better for him if the company told him not to tie down so many brakes at some point in the past as they wanted to get him off to rest. In this particular case, he and the RTC discussed the engine problems, the blowing of oil, etc and "the company" told him to go on rest.

FWIW, I think the company's failure to consider the volatile cargo and treat it carefully may turn out to be a bigger issue in the case than the failure to tie down the brakes. We'll have to see.

As I said before, I think they arrested the wrong RTC. The motive power problems and status were discussed by Harding with the Bangor RTC. They arrested the Farnham RTC. If they want the Bangor RTC, they would have to get the US to extradite him.

Best regards,

Rob L.

rob_l Wrote:
-------------------------------------------------------
> As I said before, I think they arrested the wrong
> RTC. The motive power problems and status were
> discussed by Harding with the Bangor RTC. They
> arrested the Farnham RTC. If they want the Bangor
> RTC, they would have to get the US to extradite
> him.
>
> Best regards,
>
> Rob L.

If the Farnham RTC wasn't involved in the decisions on that fateful evening, it would seem like an easy matter to get the charges dismissed. I'm surprised he hasn't already filed that dismissal / severance motion

Lackawanna484 Wrote:
-------------------------------------------------------
>
> If the Farnham RTC wasn't involved in the
> decisions on that fateful evening, it would seem
> like an easy matter to get the charges dismissed.
> I'm surprised he hasn't already filed that
> dismissal / severance motion

Actually, I believe that at the start of this thread, dismissal of charges against all three employees (engineer, Farnham RTC, operations manager) was proposed.

The Farnham RTC was aware there was some issue with the power but referred the problem to the outbound RTC (the one in Bangor) to advise Harding what to do about it. The Farnham RTC also had an opportunity to inquire of Harding how many hand brakes he set but evidently did not.

I am not sure how easy it is for the Farnham RTC to get off, although as you say it ought to be a lot more promising for him than for the Bangor RTC. In any case, it seems really odd to me to arrest the Farnham RTC and not go after the Bangor RTC.

Best regards,

Rob L.

march_hare Wrote:
-------------------------------------------------------
> Hmmm, intersting case for comparison purposes.
> How did it turn out in the end?
>
> For my part, I agree that pursuing criminal
> charges against the front line employees crosses
> the line from "justice" to "vengeance." Not sure
> how I'd come down on the company itself and
> higher-ups within it, but even there I haven't
> seen good evidence of criminal intent. Gross
> negligence, maybe. Not sure whether that
> distinction applies in Canadian law or not.

I tend to agree with this comment also . There is a fine line between Justice and vengence for sure at least at the level of the engineer . His employer should take much more of the responsibility here.
Andy

Yeah, because it's much more palatable to hang all the blame on a faceless corporate entity (especially one that's already out of business) than the person actually responsible for the mess.

junctiontower Wrote:
-------------------------------------------------------
> Yeah, because it's much more palatable to hang all
> the blame on a faceless corporate entity
> (especially one that's already out of business)
> than the person actually responsible for the mess.


But, just to play devil's advocate for a moment:

Let's say Mr Harding tied down 40 cars a few months ago, taking 90 minutes, and was hollered at by the RTC for milking the clock and screwing up the return to service. And, disrupting a planned meet the following day with another train.

The RTC says the supervisor told him to keep an eye on the time crews took tying down a train etc.

Supervisor says "other engineers" took 20-30 minutes, while Mr Harding routinely took an hour. And shows actual records showing 20-30 was typical and no trains ran away.

Road foreman says the consensus of experienced engineers on the run is that 30 minutes ought to be enough. He produced the record based on 10 years experience over the line with many crews.


So, who are you gonna believe? And, who are you going to behead, pillory, throw in jail, etc?