Teamsters Canada Calls For Government To Take Responsibility

http://teamsters.ca/en/blog/2018/01/19/tragedy-at-lac-megantic-time-for-the-government-to-take-responsibility

Teamsters Canada

TRAGEDY AT LAC-MÉGANTIC: TIME FOR THE GOVERNMENT TO TAKE RESPONSIBILITY

Laval, January 19, 2018 — The Teamsters Union is relieved by the acquittal of three Montreal, Maine & Atlantic workers who were accused of criminal negligence causing death in the Lac-Mégantic derailment. The lengthy trial highlighted major shortcomings in the rail industry and the Teamsters believe it is now time for Transport Canada to act decisively to ensure the safety of the general public and of workers.

“Installing cameras to monitor train workers does nothing to improve safety in this industry, warned Teamsters Canada President François Laporte. Increasing safety requires hiring railway inspectors, allowing workers to rest when they are tired, and most importantly, monitoring the rail carriers very closely as well as ensuring a transparent public consultation before granting a rail carrier an exemption to a safety rule.”

“These are the types of measures that will reduce the risk of such a tragedy happening again.”

The evidence filed by the Crown apparently failed to convince the jury: after deliberating for nine days, they returned with a unanimous verdict of “not guilty”.

“My thoughts are, once again, with the families and friends of the victims of the tragedy, said the Union leader. I simply want to tell them that I strongly believe this disaster was caused by a careless employer and that justice will be done when the criminal trial of the MM & A is over.”

The Teamsters union represents close to 125,000 workers across Canada, including 12,000 workers in the rail industry. The International Brotherhood of Teamsters has 1.4 million members in North America.

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Information:
Stéphane Lacroix, Director of Communications and Public Affairs
Cell: 514-609-5101
slacroix@teamsters.ca

From Railroad Workers United (RWU) of North America:

Press Release

Friday, January 19th, 2019 at 2:40 PM Central Time

For Immediate Release

For more information Contact: Ron Kaminkow, RWU General Secretary

phone:608-358-5771 or 202-798-3327

email: secretary@railroadworkersunited.org

RWU Statement Upon the Acquittal of Canadian Railroad Workers

Railroad workers – together with all citizens concerned with worker justice – across the continent are celebrating the acquittal of Canadian railroaders who were wrongly accused by the Crown for the tragedy at Lac-Mégantic in which 47 people were killed when a long and heavy oil train crashed and exploded in the middle of that small town in July of 2013.

At the time of the wreck, Railroad Workers United (RWU) had spoken out quickly, releasing a statement within a week condemning the reckless practices on the rail carrier – the Montreal, Maine and Atlantic (MM&A) – and its renegade CEO Ed Burkhart. Since then, RWU has defended the railroad workers, denying that they in any way should be charged with a criminal offense, demanding that the charges be dropped, and that the Crown charge the real criminals – the MM&A bosses and the government regulators who had turned a blind eye to their irresponsible actions regarding safety.

Once the workers were arrested, RWU took part in protest actions, assisted with organizing a defense committee, began raising funds for the defense, and attempted to raise awareness of the issue on both sides of the border. Despite the overwhelming evidence of company recklessness and irresponsibility, the Crown refused to drop the charges, and proceeded onward to the trial which finally commenced – more than four years after the event – in September 2017.

While the prosecution focused largely on a single event – the alleged failure of the locomotive engineer to tie enough handbrakes, they were tripped up at every turn by their own witnesses – government, company, “expert” and otherwise – who, by their testimony, incriminated the company and the government regulators rather than the defendants.

Some of the highlights that were revealed at the trial include:

1 – The implementation of single employee train crews just months earlier, had played a key role in the wreck. One other railroad that had been operating trains in this fashion for years (QNSL) had provided 10 days of training and made 69 safety accommodations prior to the implementation of such operations. The MM&A did none of these, while the government stood idly by. After the wreck however, Transport Canada outlawed the further implementation of the practice.

2 – The MM&A had allocated practically no funding for safety or emergency training, nor standardization of rules compliance, and had a terrible safety record compared to most rail carriers.

3 – The train in question was thousands of tons over limit. Significantly, the company had no set policy for the number of handbrakes that were necessary to secure such trains. That number remains in question, but experts now agree that the number for such a train on such a grade is well more than had been considered at the time.

4 – The train – by company policy – was left unattended on the mainline on a steep grade with no derail or other means of protection against runaway.

5 – The train’s lead locomotive was defective, and ultimately this fact would catalyze the runaway. Despite awareness of this fact, the company had failed to make necessary repairs to it, nor utilize it as a trailing unit in the consist. In addition, the mainline trackage was in a dilapidated state because of deferred maintenance by the carrier.

6 – Company policy was to leave the train’s automatic brake in the release position, even though the generally accepted practice by railroad policy and law is to leave unattended trains with the automatic brake in the “full-service” (fully applied) position. Every car of the train could have had its air brakes fully applied, but the company – against general rule and wisdom of a hundred years – insisted that engineers not set the air brakes on the train when leaving the train alone. Had this reckless and bizarre policy not been insisted upon by MM&A, the train almost certainly could not have rolled away.

All told over the course of four months, the jury gained a picture of a railroad company that was oblivious to safety concerns, one far more interested in making money than in the safety of its workers or trackside communities. While RWU applauds the jury’s verdict and sees the acquittal as a victory – not just for the MM&A railroad workers but for all railroad workers – we must remain vigilant. Railroad carriers in the U.S., Canada and elsewhere are intent on criminalizing employees, pointing the finger at them when something goes wrong, as a means of deflecting attention away from their own failures, whether it be inadequate training, lack of qualifying time, chronic crew fatigue, deferred maintenance, dangerously long and heavy trains, inadequate staffing and more. Railroad workers must be ready, willing and able to come to one another’s defense to prevent the rail carriers and the state from criminalizing our behavior while they – the real criminals – get off Scott free.

Railroad Workers United
Solidarity — Unity — Democracy

From Around The World, Reaction To The Victory!

Congratulations from Italian railroad workers

Immagine incorporata 1

Dear Brothers and Sisters,
We are happy and moved by the absolution of Tom Harding and the other two MMA railroaders accused of the Lac Mégantic disaster.
Immediately we followed the case, informed the Italian railway workers and expressed solidarity with Tom, convinced that the real culprits were those looking for profit.
Let Brother Tom and the rail brothers get our warm embrace.
Now we will work to invite you and them to Italy!

Lac-Mégantic Jury Refutes Gov’t Frame Up Of Rail Workers

3 former MMA rail workers acquitted in Lac-Mégantic disaster trial

Locomotive engineer and 2 others found not guilty of criminal negligence causing 47 deaths

By Alison Brunette, Kalina Laframboise, CBC News Posted: Jan 19, 2018 2:12 PM ETLast Updated: Jan 19, 2018 3:48 PM ET

Train engineer Tom Harding leaves the courtroom Friday after hearing the verdict in Sherbrooke, Que.

Train engineer Tom Harding leaves the courtroom Friday after hearing the verdict in Sherbrooke, Que. (Ryan Remiorz/Canadian Press)

Jurors have acquitted the three former Montreal, Maine and Atlantic (MMA) railway employees charged with criminal negligence causing death in the 2013 Lac-Mégantic rail disaster.

Locomotive engineer Tom Harding, 56, rail traffic controller Richard Labrie, 59, and operations manager Jean Demaître, 53, were all charged after the derailment of a runaway fuel train early on July 6, 2013. Several tankers, carrying highly volatile crude oil exploded, turning downtown Lac-Mégantic into an inferno and killing 47 people.​

There was an audible gasp in the courtroom when the verdict was delivered early Friday afternoon.

Labrie couldn’t hold back tears as he described his relief. He said that his thoughts are with the community of Lac-Mégantic.

“I would like to say the people of Lac-Mégantic, what they went through, they showed a huge amount of courage,” he said.

“I wasn’t intending to cry. But I can tell you it was difficult — it was a long process.”

The eight men and four women on the jury had been deliberating since Thursday morning, Jan. 11, at the Sherbrooke, Que., courthouse, after a marathon trial which began last September.

The jurors have endured countless hours of technical testimony from train experts, heard dramatic audio recordings of emergency workers and railway employees from the night of the explosions, and listened to other former MMA employees called as Crown witnesses describe a work environment with little regard for safety standards and no budget for training.

Quebec Superior Court Justice Gaétan Dumas thanked the jury members for their work, telling them that the case wasn’t easy.​

“You are the most enthusiastic jury I have ever seen,” he said.

Downtown Lac-Mégantic was consumed by fire following a fuel-train derailment on July 6, 2013. (Reuters)

‘These aren’t killers’

Jean Clusiault, who lost his daughter Kathy in the explosion, praised the verdict outside the courtroom.

“I felt relieved because these are not the right people who should be there,” he said.

Jean Clusiault

Jean Clusiault was relieved when he heard the jury’s verdict. He lost his daughter Kathy in the Lac-Mégantic rail disaster. (Radio-Canada)

Clusiault said Harding, Demaître and Labrie didn’t deserve to be blamed for the fatal rail disaster and explosion in downtown Lac-Mégantic.

“These are human beings with families who worked hard all their lives,” Clusiault said.

“These aren’t killers. We treated them like killers.”

Last, ill-fated journey

Harding, who pitched in on the night of the disaster, helping emergency responders detach the fuel cars that hadn’t exploded, was the driver of the ill-fated fuel train.

He picked up the 73-tanker car train in Farnham, Que., 60 kilometres southeast of Montreal, on the afternoon of July 5, 2013.

Late that evening, he left the train idling on the tracks in the village of Nantes, 13 kilometres west of Lac-Mégantic, where it was to be picked up by an American crew the following day.

During the three-month trial, the court heard how a fire broke out in the smokestack of that locomotive shortly after Harding left it unattended.

Firefighters arrived and extinguished the fire, shutting down the locomotive’s engine and breakers, which disabled the air brakes that were securing the train. Jurors heard that less than an hour later, the runaway train barrelled down the tracks, derailing in downtown Lac-Mégantic. The resulting explosions engulfed the town in flames.

Several of the Crown’s 31 witnesses described Harding as an experienced, knowledgeable and helpful co-worker, which the Crown alluded to in closing arguments.

“Despite all comments on Harding, on July 5, he failed to do his job,” prosecutor Sacha Blais told the jury.

“A careful engineer would have foreseen the danger.”

Much of the Crown’s testimony revolved around the seven handbrakes Harding applied to the train, whether the engineer tested them and how many would have been sufficient to secure the train properly.

In closing arguments, Harding’s lawyer, Charles Shearson, countered that the engineer followed the MMA’s general operating instructions.

Shearson listed a number of other factors that contributed to the derailment, including the safety of one-man crews and MMA’s failure to conduct a risk assessment on the consequences of parking a heavy fuel train on a slope at Nantes. The Transportation Safety Board’s report identified the rail line between Nantes and Lac-Mégantic as the second steepest grade of any stretch of track in Canada.

Jean Demaître, the ex-MMA operations manager was charged with criminal negligence. Richard Labrie, far right, is a former MMA rail traffic controller faced the same charge. (Alison Brunette/CBC)

Accused waived right to mount defence

Harding, as well as the other two accused, waived their right to mount a formal defence to the charges.

Labrie, the rail traffic controller on duty that night, was on shift 200 kilometres away in Farnham, relying on information being provided to him by telephone, his lawyer, Guy Poupart, reminded the jury in closing arguments.

Poupart said the Crown failed to “demonstrate in any way that a rail traffic controller placed in the same position as Labrie and given the same information, would have acted any differently.”

CRIME Lac Megantic Trial jury thomas harding

Former Montreal, Maine and Atlantic locomotive engineer Thomas Harding leaves the court during a break in the trial in September. (Ryan Remiorz/Canadian Press)

Demaître, MMA’s senior manager in Quebec, was at home near Saint-Jean-sur-Richelieu and on call on the night of the disaster. The Crown argued he had been negligent, ignoring complaints about the lead locomotive’s mechanical defects.

“A supervisor should have ensured all safety,” Blais concluded.

Demaitre’s lawyer, Gaétan Bourassa, urged the jurors to distinguish between his client’s actions and those of his former employer.

“This is the trial of Jean Demaître, not the trial of MMA through Jean Demaître,” Bourassa said in his closing arguments.

“There is a tremendous difference.”

With files from CBC’s Elysha Enos, Claude Rivest

Jury Again Requests Clarification

Tom Harding and Richard Labrie Did Not Cause The Lac-Mégantic Tragedy

Any conviction of rail workers at the end of the long danger chain is an obstacle to safety or accountability

That can only come from a full public inquiry that holds policy makers responsible.

Here’s a review of some of the critically important factors that will never be addressed by scapegoating rail workers

The Montreal Maine and Atlantic (MMA) rail management and their US based parent company Rail World Inc put communities and employees at risk across the region, and not just in the specific instance of the Lac-Mégantic wreck. These increased risks almost all still exist, without local benefits or safeguards. None of the volatile crude oil shipped contributes to the regional economy but all the risks are local.

MMA made the deliberate decision to run unit trains of the most explosive oil:

  • With a single crew member who could ONLY move the train forward. Reverse moves and splitting for any safety eventuality was prohibited by this decision.
  • In known inadequate tank cars that were mislabeled as to content.
  • too long to fit in the available derail protected siding, which are designed for the purpose of holding such trains and use of which would have guaranteed that the wreck couldn’t have happened.
  • with completely inadequate liability insurance for any risks they imposed on communities.
  • without any plan for fire and other consequences that might occur with it’s dangerous cargo.
  • without backup qualified staff to respond to eventualities such as the locomotive fire. They refused to send the only and obvious qualified person available (Harding) to check the train in order to save money. Ruthless cutting of the workforce made qualified backup unavailable.

MMA made the deliberate decision to run the locomotive that caught fire in the lead despite:

  • known defective repair that ultimately led to the fire
  • known defective performance that also increased local environmental damage
  • known defective rollaway protection in the wiring of the battery
  • requests for the simple reordering of the consist that would have absolutely prevented the wreck

MMA made the decision to purposely overload the safety weight limits on individual inadequate tank cars for the sole purpose of profit with no concern for consequences of their action. There was no meaningful oversight of this crucial aspect of safety by Transport Canada or anyone else.

MMA set a specific standard for handbrakes that had already been made obsolete by their own decision to increase train length and weight. No corrections were made. That decision was made without any responsibility for assuring securement.

MMA threatened employees with discipline for using the available automatic air brake system in securing these most dangerous trains on grades. This alone would almost certainly have prevented an unforeseeable runaway and is standard in the industry. The most dangerous cargo was purposely left without every available securement, by policy.

MMA had a ZERO safety budget and by policy had no training or followup to insure understanding. Testimony showed that employees were left completely on their own in understanding and interpreting the inadequate rules that existed. Even copying of safety documents was unavailable.

The North American rail industry organizations have never called out the practices of the MMA and have even, in Canada, promoted and defended the outrageous MMA practice of not using train air brakes as a part of securing equipment. They also completely endorse the idea of single employee train operations, even though such operations are inherently dangerous and add unnecessary risk before, during and after dangerous events.

Transport Canada, the supposed watchdog agency that should have been able to determine of the public safety was protected, stated they had no authority to determine MMA rule compliance with even their own rules.

What the jury in the Lac-Mégantic trial didn’t hear

Justice Gaétan Dumas rejected motions to acquit 2 accused but scolded Crown for weakness of case

CANADA-TRAIN/

The jury is is deliberating in the trial of three former rail workers charged with criminal negligence causing 47 deaths for their roles in the 2013 fuel train derailment and explosions in Lac-Mégantic, Que. (Reuters)

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While the jury was out of earshot, the Quebec Superior Court judge presiding over the trial of three men indicted for their roles in the Lac-Mégantic rail disaster acknowledged the Crown’s case against two of the accused was not persuasive.

“I’m aware the evidence is weak,” Justice Gaétan Dumas told the court in the absence of the jury on Dec. 11. “However, it’s not up to me to evaluate it. That’s the jury’s job.”

Dumas made the comments after rejecting a defence motion to acquit two of the men, former Montreal, Maine and Atlantic (MMA) railway traffic controller Richard Labrie, 59, and ex-MMA operations manager Jean Demaître, 53. Along with former locomotive engineer Tom Harding, 56, they are each charged with criminal negligence causing the deaths of 47 people.

Now that the jury in the marathon trial is sequestered and has begun its deliberations, CBC News is free to report on arguments and motions that had been subject to a publication ban.

CRIME Lac Megantic 20170412

Former Montreal Maine and Atlantic Railway Ltd. employees Tom Harding, right, Jean Demaître, centre, and Richard Labrie are escorted by police to appear in court in Lac-Mégantic in 2014. (Ryan Remiorz/Canadian Press)

Throughout the three-month trial, the Crown attempted to demonstrate that, as Harding’s supervisors the night of the disaster, Labrie and Demaître hadn’t done their jobs.

“Their failure to take the appropriate measures to prevent the train from moving was a key cause of the derailment,” prosecutor Véronique Beauchamp argued.

After hearing from the Crown’s 31 witnesses over more than two months, however, lawyers for Labrie and Demaître argued the Crown hadn’t met the burden of proof of the case against their clients.

Demaître’s lawyer, Gaétan Bourassa, said there was no rule in effect in July 2013 that required locomotive engineers to inform their supervisors that a train had been properly secured.

As a result, Bourassa told the judge, his client had no reason to wonder if Harding had engaged a sufficient number of handbrakes when he left the 73-car fuel train idling at Nantes, Que., 13 kilometres from downtown Lac-Mégantic.

CRIME Lac Megantic 20180104

Labrie was the rail traffic controller at MMA on the night of the derailment and explosions. His lawyer argued the Crown never proved he was negligent in his duties. (Ryan Remiorz/Canadian Press)

Labrie’s lawyer, Guy Poupart, argued in the case of his client, not a single Crown witness testified that the railway traffic controller was supposed to have been informed by a locomotive engineer “that he was now ready to leave the site where the train was secured.”

Dumas ultimately rejected the defence motion for a directed verdict to acquit the two men.

“It’s not up to the judge to examine the quality of the evidence,” he said, citing legal precedents.

“It’s the jury’s job to determine if Demaître and Labrie … took steps to avoid bodily harm to other people.”

‘Like pulling teeth’

Dumas, who is known for his direct manner and sometimes colourful speech, made no secret of his frustration with legal counsel, especially with the Crown, when the jury was not present.

He said at times, getting answers to key questions from the prosecution was “like pulling teeth.”

‘It’s not up to the jury to play wizard.’ — Justice Gaétan Dumas

“Four Crown prosecutors have worked full time on this case for three years,” he said at one point. “That’s the equivalent of 12 lawyer-years. I can tell you had I had 12 years on one file, I would have been able to respond to questions about it.”

Dumas cited the example of the fire in the smokestack of the lead locomotive, put out by local firefighters called to the train, which had been left idling in Nantes two hours before the derailment.

No Crown witness could explain what caused the fire.

“It’s not up to the jury to play wizard,” Dumas said.

Superior Court Justice Gaétan Dumas

‘I’m aware the evidence is weak,’ Superior Court Justice Gaétan Dumas told the court in the absence of the jury on Dec. 11. ‘However, it’s not up to me to evaluate it. That’s the jury’s job.’ (Radio-Canada)

The Crown had also reproached Demaître for not doing anything when he learned there was a mechanical problem with the lead locomotive a few hours before Harding drove the convoy to Nantes on July 5, 2013.

“If you’re trying to suggest [to the jury] that changing the locomotive would have prevented the accident … that’s not what caused the accident,” Dumas chided the prosecution.

He continued, sarcastically, “Mr. Demaître’s mother isn’t charged! If she hadn’t brought him into the world, this wouldn’t have happened.”

TSB report ruled inadmissible

The trial of the ex-MMA employees began more than two years after the federal Transportation Safety Board issued its report on the Lac-Mégantic tragedy, concluding, “no one individual, a single action or a single factor” caused the derailment.

The TSB report left no doubt about problems with the MMA railway company, however.

“The TSB found MMA was a company with a weak safety culture that did not have a functioning safety management system to manage risks,” the agency said.

The TSB report identified 18 causes of and factors contributing to the accident, including  gaps in training, employee monitoring and maintenance practices at MMA, a failure by Transport Canada to audit the railway often or thoroughly enough, and the fact that the rail line between Nantes and Lac-Mégantic is the steepest slope in Quebec — and the second-steepest in Canada.

Even before the TSB report was issued, the agency made urgent recommendations to revise the way crude oil and other highly volatile materials are carried by rail.

The jury will not consider any of the TSB’s conclusions in its deliberations, however. Before the trial began, Dumas deemed the report inadmissible.

Judge has faith in jury’s smarts

That played into other arguments from which the jury was excluded.

One of the Crown’s key witnesses was a railway expert, Stephen Callaghan, who had been hired by the Quebec provincial police to help in its investigation.

Before Callaghan testified, the Crown argued his report on the disaster should not be entered as evidence, because it referred to the inadmissible TSB report.

Dumas rejected the Crown’s argument.

“This is like saying the jury isn’t intelligent, so we won’t give them the expertise,” he said.

Safety of one-man crews

MMA had instituted one-man crews on the run through Lac-Mégantic just months before the disaster.

The jury heard expert evidence that the only other railway in Quebec with a one-man crew operation, Quebec, North Shore & Labrador (QNSL) railway, had to respect 69 conditions imposed by Transport Canada before it could adopt them, while MMA had to comply with a single condition — the addition of a rearview mirror to the driver’s side of the lead locomotive.

The jury also heard that MMA employees did not like the single-person crews, and Harding’s lawyer, Thomas Walsh, wanted to analyze their safety.

“One-man crews aren’t safe,” Walsh argued, in the absence of the jury, pointing out the day after the derailment, they were discontinued.

“Somebody caught on. We should be able to present evidence of that.”

Dumas rejected that argument.

“We are not here to try the rules,” he concluded.

MMA Railway Created ‘Perfect Storm,’ Defence For Tom Harding Tells Lac-Mégantic Trial

Superior Court Justice Gaétan Dumas to instruct jury Wednesday as 3-month trial wraps

By Alison Brunette, CBC News Posted: Jan 09, 2018 7:35 PM ETLast Updated: Jan 09, 2018 7:40 PM ET

Defence lawyer Charles Shearson wrapped up two days of  closing arguments at the Sherbrooke courthouse Tuesday.

Defence lawyer Charles Shearson wrapped up two days of closing arguments at the Sherbrooke courthouse Tuesday. (Antoni Nerestant/CBC)

The defence lawyer for former locomotive engineer Tom Harding says the implementation of one-person train crews at Montreal, Maine and Atlantic (MMA) railway, combined with substandard safety practices, were the conditions that led to a perfect storm — culminating in the 2013 Lac-Mégantic tragedy.

Charles Shearson wrapped up two days of closing arguments at the Sherbrooke courthouse Tuesday, rejecting key testimony from Crown witness Randy Stahl, the MMA manager in charge of locomotive maintenance.

Stahl, the only American company official called to testify by the Crown, told the court there was no difference in safety between trains operated by one person or two.

“If it doesn’t make a difference,” asked Shearson, “why did Quebec North Shore & Labrador (QNSL) railway impose 69 conditions when they implemented a one-man crew?”

“Why did they make engineers go through 10 days of training, and why did they make it mandatory for engineers to use [extra safety devices]?” he asked.

Railway accident investigator Stephen Callaghan

The Crown’s expert witness, Stephen Callaghan, testified 69 conditions had to be filled before one-man crews were given the green light to operate at the Quebec North Shore and Labrador (QNSL) railway, where he used to work. (Alison Brunette/CBC)

Shearson pointed out the Crown’s expert witness, Stephen Callaghan, testified QSNL was at the apex of railway safety at the time.

He said QNSL also ensured locomotive engineers working alone were closely monitored, which wasn’t the case at MMA.

Shearson’s client is one of three former MMA employees charged with 47 counts of criminal negligence causing death in connection with the derailment and ensuing explosions which killed 47 people.

Also charged are former operations manager Jean Demaître and ex-rail traffic controller Richard Labrie.

Harding, Labrie and Demaître all waived their right to present a formal defence and did not testify.

MMA 5017

Locomotive 5017 was the defective lead locomotive on the runaway train the night it derailed in downtown Lac-Mégantic. The ensuing explosions killed 47 people. (Richard Marchi/RRPictureArchives.net)

Transport Canada axed one-man crews after disaster

Earlier in the trial, the court heard that before the disaster, Transport Canada changed its rules, so that MMA did not need permission to operate single-person crews — a practice it implemented not long before the disaster.

The only condition imposed on MMA was to add a mirror to the driver side of the locomotive.

“After the tragedy, single-man crews were not allowed anymore,” Shearson reminded the jury.

“If it doesn’t make a difference [in safety] why take it away?”

Shearson asked jurors to recall an audio recording of a phone conversation of Harding calling into the Farnham train station hours before his ill-fated last trip, in which he’d asked the rail traffic controller on duty if he’d be working with a conductor that day.

The answer was no.

“Perhaps if he had been, it could have prevented the accident,” said Shearson.

Harding was ‘on the ball’

Shearson asked jurors to consider Harding’s reputation and recalled the testimony of several of his former MMA colleagues at MMA.

Throughout the trial, many of them painted Harding as patient, helpful, and professional.

Crown witness Yves Gendreau, a former MMA train inspector who’d worked with the accused, told the court he’d been impressed by Harding, describing how the train engineer had opened the window of the locomotive when testing his brakes to hear that the cars were moving properly.

Shearson gave jurors several other examples which he said showed Harding was safety-conscious and on the ball.

“Five minutes after perceiving a problem with the locomotive, he called Farnham to say the locomotive was not 100 per cent,” Shearson told jurors, referring to an audio recording jurors heard earlier in the trial.

Shearson also replayed a conversation Harding had with American rail traffic controller Dave Wiley when he arrived in Nantes with the train on July 5, 2013.

Tom Harding lawyers

Accused locomotive engineer Thomas Harding, left, speaks with defence lawyers Charles Shearson, centre, and Tom Walsh, right. (CBC/Alison Brunette)

In the recording, Harding describes problems he’d had with the locomotive in detail, to which Wiley responds, “We’ll check it out in the morning. That’s all we can do.”

Near the end of his closing statement, Shearson recalled the testimony of ex-MMA employees Michael Horan and Jean-Noël Busque, who both told the court that on the night of the tragedy Harding donned firefighter gear and risked his life to help haul away fuel cars which hadn’t derailed.

“Does that demonstrate someone who has a reckless state of mind, someone who is careless?” Shearson asked.

“We can’t hold people criminally responsible for not being perfect.”

Shearson told jurors Harding’s conduct was reasonable when put in the proper context.

“That context was, there was no specific training for Nantes, and people were not forewarned about the risk,” he said.

Number of handbrakes not a standard

Throughout the trial the Crown has faulted Harding for not applying enough handbrakes to the train left idling overnight in Nantes, and for not conducting a brake efficiency test to check if those handbrakes could hold the train.

Earlier in the trial, the jury heard that Harding had applied seven handbrakes to the train, as well as the locomotive’s independent airbrake.

Shearson argued none of the MMA locomotive engineers or train conductors who testified knew exactly how many handbrakes were required to secure a fuel train in Nantes.

During cross-examination, Shearson had asked those witnesses how many handbrakes they routinely applied to trains.

Several of them answered that a chart did exist indicating how many handbrakes to apply but said they generally used a formula: 10 per cent of the number of train cars plus two, which indicates the minimum number required.

Callaghan, the Crown’s expert witness testified that at Nantes, that minimum number wouldn’t have been enough.

“Why is it normal that no one shared the information that on a train past a certain weight in Nantes, there would have to be more handbrakes applied?” asked Shearson, wrapping up his closing arguments.

Superior Court Justice Gaétan Dumas is expected to instruct the 14-member jury Wednesday, before jurors are sequestered to deliberate.

MMA Locomotive Engineer Didn’t Cause Tragedy, Defense Tells Lac-Mégantic Trial

Thomas Harding’s lawyers say rail company never assessed risks of parking train on Nantes slope

By Alison Brunette, CBC News Posted: Jan 08, 2018 7:21 AM ETLast Updated: Jan 08, 2018 8:15 PM ET

Tom Harding, left, consults with his legal team, Charles Shearson and Tom Walsh, at the Sherbrooke courthouse.

Tom Harding, left, consults with his legal team, Charles Shearson and Tom Walsh, at the Sherbrooke courthouse. (Alison Brunette/CBC)

Tom Harding, the locomotive engineer indicted for his role in the 2013 Lac-Mégantic rail disaster, didn’t cause the tragedy, his defence lawyer said Monday.

Speaking before a packed courtroom, Charles Shearson, one of Harding’s lawyers, asked jurors to recall the testimony of the Crown’s expert witness, Stephen Callaghan.

Callaghan analyzed information gathered from the locomotive’s black box and told the court Harding did not properly test the train’s handbrakes before leaving the fuel-laden train idling on the tracks the night the runaway train rolled into Lac-Mégantic and derailed.

“Harding did not do an efficiency test in perfect compliance,” said Shearson.

“So [Callaghan’s] conclusion was not that Harding caused the accident, but that he did not prevent it,” he said. “But a lot could have prevented the event.”

Harding is one of three former Montreal, Maine and Atlantic (MMA) employees charged with 47 counts of criminal negligence causing death in connection with the derailment and ensuing explosions which killed 47 people. Also charged are former operations manager Jean Demaître and ex-rail traffic controller Richard Labrie.

Harding, Labrie and Demaître all waived their right to present a formal defence and did not testify.

Other pieces of the puzzle

Shearson asked jurors to recall the testimony of several Crown witnesses which lends support to his claim that many factors could have prevented the accident.

“What if MMA had done different route planning,” he asked, “or if derailers had been made available?”

Shearson also reminded jurors that the accident may also have been prevented had the locomotive’s safety system been calibrated in a different way.

Earlier in the trial, the court heard that an automatic penalty brake application never engaged when firefighters shut down the lead locomotive just an hour before the train ran away, after a fire broke out in the smokestack of the locomotive because of a retrofit in the wiring.

“Maybe if there was no fire, there would have been no accident,” said Shearson, adding “there is no evidence to establish the cause of the fire — Isn’t that an important piece of the puzzle?”

Smoke rises from railway cars that were carrying crude oil after derailing in downtown Lac-Megantic, Que., on July 6, 2013. (Paul Chiasson/Canadian Press)

Harding right to keep locomotive running

The Crown has argued that Harding didn’t apply enough handbrakes to the train. It also said Harding should never have relied on the locomotive’s air brakes to secure the train.

Shearson countered that Monday, pulling out MMA’s general operating instructions, which indicate the lead locomotive should be left running with its independent brake engaged when left unattended.

Shearson said Harding wasn’t in perfect compliance in the way he tested the train’s brakes.  But he said Harding did do an efficiency test.

Recalling Callaghan’s analysis of the black box data, Shearson told jurors that when Harding left that train it had more than two and a half times the force required to hold it.

“It was not going anywhere,” he said.

Shearson told the court that the Crown had said Harding had been made aware firefighters had shut down the locomotive after the fire.

But on Monday, Shearson said that wasn’t true.

“Harding was never told that the 5017 was shut down,” he said, implying there was a miscommunication at some point along the way.

Harding ‘an easy target’

Earlier in his closing arguments Monday, Shearson asked jurors to remember that the investigators who searched the MMA offices after the tragedy testified they were specifically looking for documents pertaining to Harding.

“It put him in an unfair spotlight,” Shearson said. “It made him an easy target to shift responsibility to.”

Shearson plainly told Superior Court Justice Gaétan Dumas and the 14 jurors that Harding isn’t perfect and didn’t secure his train according to regulation.

But he said it’s unfair to judge Harding for not being perfect.

“That’s a high standard — to hold someone to perfection and then not accept responsibility,” said Shearson.

“Although Harding’s conduct was not perfect it was reasonable. When you look at the entirety of the evidence you have the image of a very reliable man.”

Shearson listed a number of other factors that contributed to the derailment, including the degraded condition of the tracks and MMA’s failure to conduct a risk assessment on the consequences of parking a heavy fuel train on a slope at Nantes, 13 kilometres from downtown Lac-Mégantic.

“If there was a risk at Nantes no one, not management, no one at MMA or Transport Canada, foresaw the problem,” said Shearson. “So how can we blame Harding for not foreseeing the risk?”

Safety of one-man crews called into question

Switching between English and French, Shearson highlighted the relatively new practice of one-man crews, in which locomotive engineers were forced to secure their trains alone.

He reminded jurors that Crown witness Steve Jacques, an MMA rail traffic controller, had testified that after the rail disaster, MMA put out a memo instructing locomotive engineers who operated one man-crews to tell the rail traffic controller on duty how many handbrakes they’d applied to their parked train.

Jacques had testified before that instruction came down, rail traffic controllers had refused to follow the directive because it put too much responsibility on them.

“Not only did some persons at the company not want the responsibility,” said Shearson, “they would not accept it.”

Shearson asked jurors if it was reasonable to think that all employees at the company should be on par with implementing safety standards.

Closing statements for Harding continue Tuesday.

The Crown delivered closing arguments in Sherbrooke, Que., last week, as did lawyers representing Labrie and Demaître.