IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Following the derailment of a freight train at Lac-Mégantic, Québec in July 2013, Transport Canada issued an Emergency Directive relating to railway operating practices respecting the securement of railway equipment.  The Emergency Directive specified the number of handbrakes to be applied to unattended railway equipment, based on the grade of the rail line and the weight of the train.  In addition, the Emergency Directive called for additional physical securement measures when railway equipment was left unattended on a main track.  The Emergency Directive applied to all Railway companies operating in Canada, including the Canadian Pacific Railway Company (CPR).

[2]           Early in the morning on February 15, 2015, the crew of CPR Train 401 left 58 railcars unattended on the main track at the Greely staging point, east of Revelstoke.  The 58 railcars were left without handbrakes or additional physical securement measures.  Only emergency brakes were applied.

[3]           Among the 58 railcars were two cars containing ammonium nitrate.  Ammonium nitrate is a potentially explosive substance, and a substance deleterious to fish.

[4]           The grade from Greely to Revelstoke is almost all downhill.

[5]           The crew left the cars in that condition because they acted on their understanding of directions relayed to them by a Rail Traffic Controller (“RTC”), who had received those directions from two members of the railway’s management.  The two managers were Mr. Mark Jackson, the Superintendent of the Mountain Subdivision of the Canadian Pacific Railway, and Mr. Tim McClelland, the Director - Dispatching at the CPR’s Operations Centre in Calgary.

[6]           The Canadian Pacific Railway Company, Mark Jackson and Tim McClelland now stand charged with two counts of unlawfully contravening the Emergency Directive, thereby committing an offence contrary to section 41 (2.1) of the Railway Safety Act, RSC 1985, c. 32 (4^th Supp.) (the “Act”).

[7]           I will begin with a general overview of the case, including the procedural history, a summary of the evidence and the positions of the parties, the issues to be determined and brief comments on credibility.  I will then review the applicable law, including the potential liability of the three accused under the Railway Safety Act, and the law with respect to strict liability offences and the defences of due diligence and mistake of fact.  I will conclude by applying that law to the facts related to each of the three accused.

[8]           The trial was heard in the Provincial Court at Revelstoke, commencing May 7, 2018.  The evidence and submissions took over a week.

[9]           The Crown called four witnesses, including Steffany Pacey and Curtis Ayotte, the conductor and engineer on Train 401 respectively.  The Crown’s third witness was Inspector Robert Blair, the lead investigator for Transport Canada.  The Crown’s final witness was Todd Hourie, who was declared to be an expert witness qualified to give testimony in the area of train operations, including controlling and predicting the movement of trains.

[10]        The Canadian Pacific Railway Company called Mr. Keith Shearer, the company’s Assistant Vice President for Safety and Sustainability.  He gave evidence with respect to the railway’s training and safety policies, operational rules and procedures.

[11]        Mr. Jackson and Mr. McClelland chose not to testify.

[12]        Curtis Ayotte was hired by the Canadian Pacific Railway Company in February 2008.  He completed his training as a conductor first, and then trained as an engineer in the winter of 2011.  He became a qualified engineer at the end of 2012.  As the engineer, he was responsible for the train’s locomotives.

[13]        Steffany Pacey was hired by the Canadian Pacific Railway Company in June 2014.  After training, she became qualified as a conductor on September 14, 2014.  As the conductor, she was responsible for everything behind the locomotives, including moving the train.

[14]        Mr. Ayotte and Ms. Pacey generally worked in the Mountain Subdivision of the Canadian Pacific Railway, between Revelstoke and Field, or in the Shuswap Subdivision, between Revelstoke and Kamloops.  They were members of the Teamsters Union.

[15]        Mr. Ayotte and Ms. Pacey were the only crewmembers on train 401.  They received their instructions by radio from the RTC at the Operations Centre in Calgary.  The RTC responsible for Train 401 on the night of February 14/15, 2015 was Chris Plumb.  The RTC’s role was to transmit instructions to the crew from the Director.  Ms. Pacey described the RTC as “the voice of the Director.”  All of their communications went through the RTC.

[16]        Every corridor of the railway network is overseen by a Director.  The Director responsible for the corridor between Golden and Revelstoke on the night of February 14/15, 2015 was Tim McClelland.  Mr. McClelland worked in the middle of the Operations Centre, where he could speak easily to the RTC who reported to him.

[17]        The Superintendent of the Mountain Subdivision was Mark Jackson.  Mr. Jackson worked at a variety of locations in his area of responsibility, including Revelstoke.  On the night of February 14/15, 2015, Mr. McClelland was able to reach Mr. Jackson by telephone.

[18]        The Canadian Pacific Railway Company has a well-established training process.  Mr. Ayotte, Ms. Pacey, Mr. McClelland and Mr. Jackson all went through it.

[19]        Sometimes, train crews may find directions confusing.  Part of the training process involves an approach to clarifying directions referred to as “escalating up”.  They are to seek clarification from the proper authority if in doubt as to the meaning of any rule or instruction.  Train crews are trained that, to seek that clarification, their first step is to call the RTC.  If the RTC is unable to resolve the uncertainty, the RTC escalates the problem to the Director.  If the Director is unable to resolve the uncertainty, he contacts the Superintendent.

[20]        According to the Railway’s policy, the final resort of an employee is the right to refuse to perform work.  However, Mr. Ayotte and Ms. Pacey believed that a conductor or engineer who refused to perform work as directed would be pulled out of service and fired for insubordination.  They believed that they were required to “work now, grieve later”.

[21]        The Teamsters Union had served the Canadian Pacific Railway Company with a strike notice.  The strike would begin at 10:00 PM on February 14, 2015.  Train crews on trips which began before the strike commenced would finish their trips, but any further movements of the train would have to be undertaken by management.  The railway’s management was planning to tie down some trains, like Train 401, at locations where they could be secured and left standing until the strike was over.

[22]        Late in the afternoon of February 14, 2015, Mr. Ayotte and Ms. Pacey were in Golden BC.  They had arrived there early that morning, on a train coming from Revelstoke.  They were initially told that they were going to “deadhead” back to Revelstoke, which meant that they would be transported back to Revelstoke, without having to work as the crew of a train.

[23]        At 5:35 PM on February 14, 2015, however, their instructions were changed.  Mr. Ayotte and Ms. Pacey were told that they were now going to re-crew Train 401, and be responsible for taking it west to Revelstoke.

[24]        The call at 5:35 PM started their 12 hour shift.  Train crews are subject to the Railway Safety Act’s Work/Rest Rule.  Except in emergencies, train crews are permitted to work no longer than 12 hours, from the point in time that they are called to duty to the point in time when they release care and control of the train.

[25]        Mr. Ayotte and Ms. Pacey got on Train 401 at Donald, near Golden.  Train 401 consisted of a number of locomotives and 152 cars, and weighed over 16,000 tons.  It was over 9,600 feet in length, or almost 2 miles.

[26]        The 152 railcars in Train 401 carried a variety of different types of cargo.  The cargo in the 19 cars from car 76 to car 94 was fuel oil.  The cargo in cars 110 and 111 was ammonium nitrate.  Fuel oil and ammonium nitrate are classified as dangerous goods.  Train 401 contained a total of 21 cars carrying dangerous goods.

[27]        Any train with more than 20 cars of dangerous goods is referred to as a “key train”.  Special rules apply to key trains.  One of them is that they cannot be left unattended on a main track.  The Canadian Rail Operating Rules provides that a train is “unattended” when an employee is not in close enough proximity to take effective action.

[28]        On the night of February 14/15, 2015, Train 401 travelled west toward Revelstoke through the Canadian Pacific Railway’s Mountain Subdivision.  This is a challenging stretch of track, because of steep grades and track undulation.

[29]        Once the strike started at 10:00 PM on February 14, train movements would only be started by crews made up of management personnel.  There would not be sufficient management crews to move every train, so many trains were being tied down and left at suitable places in the railway network.  Train 401 was one of the trains that was to be tied down.

[30]        Train 401 was a key train, and could not be tied down on the main track.  Other trains had already arrived at the rail yard at Revelstoke, and had been tied down there.  Because of the length of Train 401, there was not sufficient room left for it in the rail yard at Revelstoke.

[31]        The plan ultimately given to Mr. Ayotte and Ms. Pacey by the RTC called for them to separate the 19 cars containing fuel oil from the rest of the train, and set those 19 cars off by themselves into a backtrack at Greely.  A backtrack is a short section of track beside the main track.  When Train 401 was reassembled, it would contain only two dangerous goods cars, the two cars containing ammonium nitrate.  It would no longer be characterized as a key train, and could be tied down and left on one of the main tracks until the end of the strike.

[32]        The switching zone at Greely has a number of features.  Starting from the West at the Greely crossover between the South main track and the North main track, there is the backtrack, then three points at which private roads cross the main tracks, and then the Greely staging sign.  Trains are tied down at the Greely staging sign at the East end of the switching zone, to avoid blocking the private crossings.

[33]        This plan for Train 401 could be accomplished in five distinct movements.^[1]

[34]        Mr. Ayotte and Ms. Pacey both testified that this switching movement was unusual.  Neither of them had ever performed a movement like it, before or since.  It was complicated by the distances involved, darkness, winter weather and the time remaining in their 12 hour shift.  The greatest complication, though, was that the Emergency Directive specified the number of handbrakes to be applied to unattended railway equipment, based on the grade of the rail line and the weight of the train.  In addition, the Emergency Directive called for additional physical securement measures when railway equipment was left unattended on a main track.

[35]        As Train 401 moved West toward Revelstoke on February 15, the crew made several radio calls to the RTC with questions and concerns about the movement as they understood it.  Mr. McClelland, who was working in the Operations Centre with the RTC, made several phone calls seeking advice, including one to Mr. Jackson.  Audio recordings and transcripts of those communications were marked as exhibits at the trial.

[36]        Statements by an accused are characterized as admissions by an opposing party and fall under that exception to the hearsay rule.  Accordingly, they are admissible for the truth of their contents without the need for a hearsay voir dire. Statements made by the RTC are admissible to establish that they were made, but not for the truth of their contents.

[37]        The recordings consisted of the following conversations.

[38]        At 1:01 AM, the RTC directed the crew to set off the 19 fuel oil cars at the Greely backtrack.

[39]        At 1:32 AM, Mr. McClelland called another manager by telephone to ask if there were any issues with the locomotives at Greely pushing the 6,400 ton weight of the head end of the train back to the tail end.

[40]        At 1:33 AM, the RTC radioed the crew and confirmed the plan.

[41]        At 1:35 AM, Ms. Pacey radioed the RTC to confirm the number of handbrakes she thought she would need to apply at each stage of the movement plan.  He confirmed her understanding.

[42]        At 1:38 AM, the RTC radioed the crew to confirm that Train 401 would not move again until after the strike, and that they were to proceed as he had directed.

[43]        At 1:47 AM, there was a telephone call between Mr. McClelland and Mr. Jackson.  The audio recording was marked as an exhibit.  It went:

[44]        At that point, the conversation between Mr. McClelland and Mr. Jackson suddenly turned to an unrelated topic.  Mr. McClelland then appeared to give instructions to a third person:

[45]        At that point, the conversation suddenly turned again to an unrelated topic.

[46]        Although Mr. McClelland admitted that he was the speaker in the bulk of the conversation, he did not admit that he was the speaker who referred to leaving a train in emergency on the hill going up to Notch Hill.  On the basis of the strong similarity between the sound of the voice speaking those words, and the sound of the voice speaking the words Mr. McClelland admitted to speaking, as well as the timing and topic of the statement, I am satisfied that the unknown speaker was Mr. McClelland.

[47]        At 1:51 AM, the RTC radioed the crew.  This was the final conversation about the train movements at Greely.  It went:

[48]        The RTC never specified what place on the South track he was referring to when he said, “when you separate there.”  He never told the crew where to stop the train.

[49]        Mr. McClelland told the RTC to tell the crew that the direction to not apply handbrakes came from the Superintendent, Mark Jackson, which the RTC did.  The Superintendent is considered an authority on the application of the operating rules.

[50]        Mr. Ayotte was asked why he repeated the RTC's directions back to him.  He said that he wanted to be absolutely certain that was the direction he was being given.  He said he wanted to point out how “absurd” it was to leave railcars unattended on a mountain grade without handbrakes.

[51]        Throughout, the tones of the voices of some of the speakers on the audio recordings suggest something about their attitudes or mental states.  Ms. Pacey sounded confused and apprehensive, and Mr. Ayotte sounded skeptical and upset.  The RTC sounded frustrated.  Mr. McClelland sounded exasperated with his subordinates.  Mr. Jackson was dismissive.

[52]        Ultimately, the crew of Train 401 reluctantly performed the movements in accordance with what they understood their directions to be.  They left the tail end of the train standing unattended on the South main track east of the Greely staging point sign, without handbrakes or additional physical securement measures or mechanisms.  The cars were left “in emergency”, which means that the crew relied on the air brakes to keep them from moving.

[53]        This is not a case where the credibility of evidence is an important issue; however some concerns were raised with the accuracy of Ms. Pacey’s evidence.  She was shown to have exaggerated certain facts to the detriment of her employer when initially reporting the incident, and to have passed up an opportunity to correct her evidence about what the appropriate number of handbrakes should have been.  However, her evidence about what she was told, what she did and why she did it was consistent with the evidence of other witnesses or exhibits, and I accept it as credible.

[54]        The Crown submits that it has proven that the Canadian Pacific Railway Company, Tim McClelland and Mark Jackson failed to apply sufficient handbrakes to Train 401, and failed to apply additional physical securement measures.  Furthermore, the Crown says that none of the accused have established on a balance of probabilities that the offence was committed without their knowledge or consent and that they exercised all due diligence to prevent its commission.

[55]        Mark Jackson takes the position that the evidence on the trial does not establish beyond a reasonable doubt that he committed the actus reus of the offences, or that in the alternative that he made a reasonable mistake of fact and has a defence of due diligence.

[56]        Tim McClelland argues that nothing in the Crown evidence suggests that he directed the crew to leave the tail end of the train unattended.  As I understand Mr. McClelland’s position, it is that when he directed that the tail end of Train 401 be left in emergency with only air brakes on during the switching manoeuvre, he made a reasonable mistake of fact because he did not know that the crew was interpreting their directions as directions to leave the train unattended.  With respect to Count 2, he argues that paragraph 4c of the Emergency Directive, not paragraph 4a, applies.

[57]        The Canadian Pacific Railway Company takes the position that it exercised all due diligence in training, organizing and supervising the members of the crew and the movement of Train 401.

[58]        The following issues require determination:

[59]        The first and most important principle of law applicable to cases like this is the presumption of innocence.  All three accused enter these proceedings presumed to be innocent, and the presumption of innocence remains throughout the case unless the Crown, on the admissible evidence, establishes beyond a reasonable doubt that one, two or all three of them are guilty.

[60]        Two rules flow from the presumption of innocence.  One is that the Crown bears the burden of proving guilt.  The other is that guilt must be proved beyond a reasonable doubt.  These rules are unbreakably connected with the presumption of innocence to ensure that no innocent person or corporation is found guilty.

[61]        A corporation exists independently of the people who own it, guide it or work within it.  It is a creation of the law, and it has no physical presence.  Section 42 of the Railway Safety Act addresses this situation by providing a statutory basis of liability.  That section reads as follows:

[62]        The effect of that section is that, upon proof that any employee committed an offence, the onus shifts to the employer to establish a defence of due diligence, on a balance of probabilities.  That is so even if the person committing the offence has not been prosecuted.

[63]        The effect of that section is also that, upon proof that a person committing an offence was the agent of the accused, the onus shifts to the accused to establish a defence of due diligence, on a balance of probabilities.  Again, this is so even if the agent or person committing the offence has not been prosecuted.  Mr. McClelland and Mr. Jackson might also be liable as parties.  The party provisions of the Criminal Code relating to summary conviction offences applies to offences under the Railway Safety Act.

[64]        These are regulatory offences.  In R. v. City of Sault Ste. Marie (1978), 1978 CanLII 11 (SCC), 40 C.C.C. (2d) 353 (S.C.C.) the Supreme Court of Canada considered the difficulty posed for the Crown in proving full mens rea in prosecutions for regulatory offences, as well as the possibility of injustice to an accused should liability follow inexorably upon proof of the actus reus.  The Court created a new category of offence, positioned between offences requiring full mens rea on the one hand, and absolute liability offences where an accused could be convicted even if not at fault on the other.  They called this new category “strict liability offences”.

[65]        In the prosecution of strict liability offences, the Crown does not have to prove mens rea.  Crown must prove the actus reus beyond a reasonable doubt, but the accused can then advance a defence of reasonable care or due diligence. 

[66]        The defence of due diligence involves consideration of what a reasonable person would have done in the circumstances.  This defence will succeed "if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.  See R. v. City of Sault Ste. Marie (supra) at p. 374.  This defence only need be established on the balance of probabilities.

[67]        In R. v. MacMillan Bloedel Ltd., 2002 BCCA 510, Smith J.A. for the majority explained the two alternative branches of the due diligence defence.  At paragraph 47 he said, “The first applies when the accused can establish that he did not know and could not reasonably have known of the existence of the hazard.  The second applies when the accused knew or ought to have known of the hazard.  In that case, the accused may escape liability by establishing that he took reasonable care to avoid the “particular event””.

[68]        When the hazard in question involves employee conduct, it is important to distinguish between an accused’s responsibility to take appropriate measures to safeguard against the employee’s conduct and its consequences, on the one hand, and vicarious liability, on the other.  See, for example, R. v. Kukuljan, 2008 BCCA 490 at para 29.

[69]        The first branch of the due diligence defence explained by Smith J.A. in R. v. MacMillan Bloedel (supra) applies when the accused reasonably believes in a mistaken set of facts which, if true, would render the act or omission innocent.

[70]        The key is reasonableness.  The accused bears the burden of establishing on a balance of probabilities that he or she acted reasonably in the circumstances.  “An accused may absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances or, in other words, that he was in no way negligent.”  (R. v. Chapin 1979 CanLII 33 (SCC), [1979] 2 SCR 121 at para 26.)

[71]        At its core, this incident arose out of different understandings about exactly where Train 401 was going to be when the train was cut.  The RTC never told the crew where to stop the train.  Mr. Ayotte and Ms. Pacey both believed that they were to stop the train and make the cut east of the Greely stage sign, where the tail end could be left without obstructing the private crossings between that point and the Greely backtrack.  Making the cut at that point required them to leave the tail end of the train unattended, while they moved the head end farther west and then backed into the backtrack.

[72]        They knew that leaving the tail end of the train unattended on the main track would contravene the Emergency Directive.  Mr. Ayotte and Ms. Pacey committed the actus reus of both offences, and did so at the direction of and as the agents of Mark Jackson and Tim McClelland, and as the employees of the Canadian Pacific Railway Company.

[73]        Mr. McClelland argues, with respect to Count 2, that paragraph 4c of the Emergency Directive applies.  Paragraph 4c refers to equipment left unattended while actively switching.  With respect, the question is really whether or not paragraph 4a does not apply.  That paragraph refers to equipment left unattended on a main track.  Since the railcars in the tail end of the train were left unattended on a main track East of the Greely stage sign, I am satisfied that paragraph 4a is appropriate.

[74]        It remains to be seen whether any of the accused has established, on a balance of probabilities, a defence of due diligence or a reasonable belief in mistaken facts.

[75]        Let me deal first with Tim McClelland.  Since Mr. McClelland chose not to testify, whether he knew that the train was going to be unattended when it was left in emergency, without hand brakes or supplementary securement mechanisms, could only be inferred from his recorded statements and the surrounding circumstances.

[76]        Mr. McClelland was responsible for determining the locations of trains throughout this corridor of the railway network.  His plan was transmitted to the crew of Train 401 by the RTC, and he had to be have been aware that both the crew and the RTC had difficulty with it.  The RTC worked closely with Mr. McClelland in the Operations Centre, and had asked “one hundred and one questions”.  Mr. McClelland complained about the RTC’s persistence to Mr. Jackson.  It was clear from Mr. McClelland’s conversation with Mr. Jackson that he knew that the crew was concerned with the number of handbrakes that would have to be applied.  If Mr. McClelland mistakenly thought that his subordinates understood his direction to mean that the tail end was not to be left unattended when he ordered that the train be left in emergency, his mistake was not reasonable.

[77]        With respect to any due diligence, the steps taken by Mr. McClelland to inform himself about what the crew were about to do were also not reasonable.  He did not contact the crew directly.  He did not instruct the RTC to tell them exactly where he wanted them to make the cut.  Despite his responsibility for overseeing the operations on that corridor of the network, and despite the confusion and frustration expressed by the crew and the RTC, he did not make his plan for the movement of the train sufficiently clear before directing that it be left in emergency.  On a balance of probabilities, Mr. McClelland did not exercise all due diligence to prevent the commission of the offences.

[78]        Let me deal next with Mark Jackson.  On the basis of the evidence at trial, did Mr. Jackson reasonably believe in a mistaken set of facts which, if true, would make the act of directing that the tail end of the train be left standing without handbrakes or additional physical securement measures an innocent act?

[79]        Mr. Jackson said to Mr. McClelland, “Right on the main track, you will leave it right there with the train.”  I infer that Mr. Jackson held the mistaken belief that the tail end would not be unattended.  Was his belief reasonable?

[80]        On the evidence before me, Mr. Jackson knew only what he was told by Mr. McClelland during their telephone conversation at 1:47 AM on February 15.  Some of what Mr. McClelland said to him was incorrect or misleading.  For example, McClelland said that Train 401 was going to be tied down “on the south main at Revelstoke”. McClelland referred to Revelstoke again when describing the crew’s objection.

[81]        According to Mr. Shearer, Mr. McClelland had a deep understanding of railway operations.  I infer that, as Superintendent, Mr. Jackson would have known that.

[82]        Mr. McClelland’s tone suggested that he was exasperated with his subordinates, and given Mr. McClelland’s experience and depth of knowledge, it would be reasonable for Mr. Jackson to assume Mr. McClelland’s exasperation was also reasonable.

[83]        Unlike Mr. McClelland, Mr. Jackson was not dealing directly with the frustrated RTC who had “asked one hundred and one questions.”  There is also no evidence before me from which I can infer that Mr. Jackson knew that the crew’s ability to push the 6,400 ton weight of the head of the train back to re-join the tail end was an issue.

[84]        Although Mr. Jackson could have asked questions and obtained greater detail about the situation, which might have led to the discovery of where the crew believed they were to make the cut, the evidence on the trial establishes on a balance of probabilities that his mistake was reasonable.

[85]        With respect to the Canadian Pacific Railway Company and the defence of due diligence, it is important that I remind myself that the focus of the due diligence test is the conduct which was or was not exercised in relation to the “particular event” giving rise to the charges, and not a more general standard of care. (R. v. MacMillan Bloedel, supra, at para 49.)  The particular event giving rise to the charges in this case is the direction to leave the tail end of Train 401 standing on the main track without handbrakes or additional physical securement measures.

[86]        In some of the questions asked and submissions made during the trial, there was a suggestion that the Canadian Pacific Railway Company placed more emphasis on efficiency and profitability than on compliance with railway safety rules.  On the evidence led at the trial, I cannot make that finding of fact.

[87]        The Canadian Pacific Railway Company had a training and operational plan that included requirements that employees comply with rules, and processes like “escalating up” to obtain clarity for confusing directions.  It was not reasonably foreseeable that a Director - Dispatching like Mr. McClelland would perform his duties in a way that resulted in a direction that railway equipment be left unattended without being properly secured.  I am satisfied, on a balance of probabilities, that the Canadian Pacific Railway Company exercised all due diligence to prevent the commission of the offences.

[88]        Mr. McClelland is guilty of counts 1 and 2 on the Information.  Mr. Jackson and the Canadian Pacific Railway Company are not guilty.