Accountability Foreclosed, Justice Denied

The Lac-Mégantic Disaster: Accountability Foreclosed, Justice Denied

Bruce Campbell

The trial of the three front-line workers charged with criminal negligence causing death in the Lac-Mégantic oil train disaster, has now begun in a Sherbrooke, Québec courtroom. If found guilty, they could face life in prison. The defunct company, MMA, faces the same charges but its trial will be held at a later date. What are the consequences of an extinct corporate shell being found guilty, but minus charges against its executives and owner: none.

Many people in Lac-Mégantic believe that the right people are not on trial. I agree with them. The crown’s case will exclusively target the men closest to the disaster: those at the bottom of the pyramid of accountability. But individuals at higher levels of the pyramid have escaped accountability. They have not been blamed for their role in the disaster. Who are they?

Senior executives and directors of the delinquent company MMA, especially the owner Ed Burkhardt; no significant decisions were made without his permission: not held to account.

Transport Canada senior officials and the Minister, who allowed this delinquent company to continue operating without any sanctions; allowed it to cut corners and play Russian roulette with public safety; whose highly defective oversight system failed catastrophically: not held to account.

Conservative government leaders who exhibited complacency and casual indifference to the dangers of the mammoth surge in the transportation of volatile oil by rail: not held to account.

Industry lobbyists who pressured senior officials and politicians not to implement additional regulations to deal with this new and dangerous phenomenon: not held to account.

The senior Transport Canada official(s) who made the decision [with the tacit support of superiors]—over major opposition within Transport Canada itself and the unions—to allow MMA to operate its 12,000-ton high hazard oil trains through cities and towns piloted by a single person crew: not held to account.

The industry lobby, the Railway Association of Canada [RAC], which led the controversial redrafting of the Canadian rail operating rules, with Transport Canada’s complicity, creating a loophole that allowed companies to operate single person crew trains with virtually no conditions to ensure an equivalent level of safety; and which then lobbied aggressively on behalf of this blatantly negligent company to be the first in Canada to run massive oil trains with a single person crew: not held to account.

Conservative government leaders who were responsible for a dysfunctional culture within Transport Canada, and in the name of austerity starved its resources—including reducing the rail safety directorate’s budget by 20% during the years when oil by rail was increasing exponentially— impeding its capacity to cope with this emergent reality: not held to account.

A regulation-averse prime minister responsible for instituting a notorious one-for-one rule policy requiring agencies which proposed a new regulation, to eliminate at least one existing regulation regardless of its impact on safety, on the pretext that cutting “red tape” would unleash market forces of job creation and economic growth; a policy which likely stonewalled the implementation of regulations that might have mitigated the risks of this new threat: not held to account.

Deregulation by both Conservative and Liberal governments, which systematically weakened or eliminated regulations, replacing them with voluntary codes and industry self-regulation [euphemistically called co-regulation] with limited or no direct oversight by governments.

A rail safety regime that continues to rely on human infallibility and the discredited myth of corporate self-regulation, and expecting another result is, to paraphrase Einstein, the definition of insanity. Lac-Mégantic was collateral damage of decades of deregulation. And yet only those at the bottom of the responsibility pyramid have been blamed. None of those on its upper levels have admitted their role or been held to account. Until this happens the lessons of Lac-Mégantic will not have been learned; and justice for the citizens of Lac-Mégantic will be denied.

Bruce Campbell is former executive director of the Canadian Centre for Policy Alternatives. In 2015, he was awarded a Law Foundation of Ontario Fellowship for his work on the Lac-Mégantic disaster; and spent 2016 at the University of Ottawa law faculty. He is currently writing a book on this tragedy.

MMA shown to have applied risky pressure on Harding and others

 TVA Nouvelles

Harding had already been criticized for applying too many brakes

Caroline Lepage | QMI Agency


Thomas Harding had been criticized in the past by an MMA leader because he applied too many brakes to his locomotives. He was also ordered to park his convoy of oil in the main railway in Nantes, it was learned Thursday morning.

Harding’s lawyer, Thomas Walsh, vigorously cross-examined, Thursday, the head of the Sûreté du Québec’s investigation, Mathieu Bouchard. Harding and two other former employees, Jean Demaitre and Richard Labrie are facing criminal negligence charges causing the deaths of the 47 victims of Lac-Mégantic on July 6, 2013.

Mr. Bouchard defended himself before the 14 members of the jury, at the Sherbrooke court house, that the investigation of the SQ had been carried out in depth. Investigators traveled about five times to the United States to interview 31 MMA employees, working with US law enforcement agencies such as the FBI. No fewer than 53,000 computer files were seized and analyzed.

“Our priority was to have the truth about this tragedy,” said Mr. Bouchard.

Issues at the heart of the dispute

However, Mr. Walsh asked him if he remembered an email from the MMA officer, where he blamed train driver Thomas Harding for applying too many automatic brakes. The company also wanted to shut down the engine of the locomotives in the summer to save fuel.

In addition, the prosecutor questioned the investigator if he knew why the technology that was to activate emergency braking on locomotive 5017, which caught fire in Nantes before the oil train drifted off, on 6 July 2013, was not functional.

He also cross-examined Mr. Bouchard if he had inquired, when he met with the company’s train maintenance personnel in Maine, why the piston that was still defective in locomotive 5017, night of the derailment, had been poorly repaired.

Mr. Walsh also inquired whether Mr. Bouchard had investigated to understand why the oil transported by the tank cars that Harding was driving during the tragedy was much more volatile than the one identified, or else the Lac-Mégantic explosion, would never have known this magnitude.

“There was a problem with labeling,” admitted the investigator.

For Walsh, the fact that these questions, which seem to him to be at the heart of the dispute, have not all been clarified, makes him believe that the police investigation was directed from the beginning for the three accused to be scapegoats.

MMA executives are “in the States. They’re with their money” and not facing questions in Quebec.


Former Montreal Maine and Atlantic Railway Ltd. employees Tom Harding, right, Jean Demaitre, centre, and Richard Labrie are escorted by police to appear in court in Lac-Megantic, Que., on Tuesday, May 13, 2014. The trial for the three men began in Sherbrooke, Monday, Oct. 2, 2017.

Former Montreal Maine and Atlantic Railway Ltd. (MMA) train engineer Tom Harding, railway traffic controller Richard Labrie and manager of train operations, Jean Demaitre, are charged with 47 charges of criminal negligence causing death.

“People have moved on,” said Lac-Mégantic director-general Marie-Claude Arguin.

“I might be in trouble for saying this, but are the right people on trial? I don’t know.”

Residents from the small town say they just want to move on with their lives.

He still remembers hearing his friends’ cries for help as they perished in the fire.

He says he doesn’t want answers from the three men on trial; he isn’t happy that MMA executives are “in the States. They’re with their money” and not facing questions in Quebec.

“Security should be first. Not third.”

A court sketch of Crown Prosecutor Véronique Beauchamp giving her opening statements on the first day of the criminal negligence trial for the Lac-Mégantic train disaster, Mon. Oct. 2, 2017.

Mike McLachlan

After analyzing the Transportation Safety Board (TSB) report, Jean-Paul Lacoursière, a chemical engineer at the Université de Sherbrooke, found that upper management should be involved in this trial — if at least to testify.

“The TSB report indicates that improper repairs were conducted on the locomotive that caught fire the tragic night.”

Lacoursière notes the TSB found that MMA lacked leadership by not effectively managing risks, implementing safety management systems and providing ineffective training.

He argues leadership must come from the highest authority in a company through procedures and resources to make sure equipment and policies are up-to-date.

It was like a series of small bombs

Smoke rises from railway cars that were carrying crude oil after derailing in downtown Lac Megantic, Quebec, Saturday, July 6, 2013.

‘It Was Like a Series of Small Bombs’: Canada Train Wreck Trial Begins

© AP Photo/ The Canadian Press, Paul Chiasson

Jurors are being selected for the trial of a locomotive engineer after his runaway train derailed and blew up in a Canadian town four years ago. But many people believe Tom Harding is being made into a scapegoat for a failure of regulation.

Jurors are being selected this week for a trial in Canada which could have huge consequences for the railroad industry across North America.

Train driver Tom Harding, railway traffic controller Richard Labrie and manager of train operations Jean Demaitre have all been charged with 47 counts of criminal negligence causing death and are due to go on trial this month.

But Fritz Edler, a special representative at Rail Workers United, believes they have been made into scapegoats when the real causes of the disaster go much deeper.

In this July 6, 2013, file photo, workers stand before mangled tanker cars at the crash site of the train derailment and fire in Lac-Megantic, Quebec, Canada.
In this July 6, 2013, file photo, workers stand before mangled tanker cars at the crash site of the train derailment and fire in Lac-Megantic, Quebec, Canada.

“Charging only some of the people who worked there and not the people who made those policies means there will never be accountability and there will never be safety coming out of it,” Mr. Edler told Sputnik.

In the early hours of July 6, 2013 a train pulling 74 cars full of oil derailed in the small town of Lac-Megantic in Quebec and blew up killing 47 people.

‘Potential Profitability’

Mr. Edler said what was really to blame for the disaster at Lac-Megantic was the deregulation of the railroad industry which had allowed “rail barons” to cut staffing to the bone and cut corners with maintenance and safety standards in order to make more money.

The oil train was operated by the Montreal, Maine & Atlantic Railway (MMA), which went bankrupt a few months later under the weight of the millions of pounds in damages and compensation it faced as a result of the disaster.

“Once MMA had figured out the potential profitability of running these unit trains with oil they started increasing the size of them,” said Mr. Edler, who is also head of the Harding-Labrie Defense Committee.

He said eventually the trains became too long to park them safely in a siding west of Lac-Megantic and instead they began parking them on a slope at Nantes, seven miles outside of town.

MMA was owned by Rail World Inc, a US company owned by Ed Burkhardt, who has twice been lauded as Railroader Of the Year by the industry.

MMA had also cut costs by reducing staffing so that a single person — in this case Mr. Harding — was responsible for the locomotive and its 74 cars.

Night of the Disaster

On the night in question Mr. Harding — who was working on his day off — was instructed to keep the locomotive engine on and leave it parked, held by its airbrakes and a handbrake, while he went to a hotel to catch a few hours’ sleep.

Then a fire broke out on the locomotive and was put out by local firemen who shut down the locomotive and called MMA.

“Then the MMA dispatcher called Harding… and Harding says ‘do you want me to go out and check?’…and they told him ‘no, we got this’. So he went back to sleep,” Mr. Edler told Sputnik.

​But because the locomotive had been shut down the airbrakes failed and the handbrake was unable to hold the 74-car convoy in place. At 1am the train started rolling and 15 minutes later it derailed on the bend in the center of downtown Lac-Megantic  and caught fire.

Thirty of those who died were enjoying a night out at the Musi-Cafe bar, including Genevieve Breton, 28, an aspiring singer and performer.

“I was at home and my house is about 1,000 feet from the track. The train was like a machine gun passing. It was really loud. My house is on a straight line but a quarter of a mile away is where it exploded. It was like a series of small bombs and then during the night there were two big bombs and big orange mushroom clouds,” Andre Blais, who is now a member of the Lac-Megantic Rail Safety Coalition, told Sputnik.

He believes MMA put profits before people.

“Lac-Mégantic is a town of 5,500 people and two-thirds of the people have Post-Traumatic Stress Disorder. Another 300 or 400 have left altogether. Downtown is like a desert,” Mr. Blais told Sputnik.

​He said he blamed the Conservative government under Prime Minister Stephen Harper for deregulating the rail industry too much, but said the Liberals under Justin Trudeau had also failed to do enough to improve rail safety and he said there had been derailments in Ontario and other parts of Canada since the Lac-Megantic disaster.

The Lac-Megantic Rail Safety Coalition is pushing for a rail bypass to be built so that trains would no longer pass through the town at all.

‘It’s Your Train That Rolled Down​’

On Monday, September 1, Quebec Superior Court Judge Gaetan Dumas began selecting jurors for the trial of Mr. Harding and his co-accused.

One woman was excused from jury service after she broke down crying and said she personally knew many of the victims of the crash.

The trial is being held in the town of Sherbrooke and the judge has said he wants a bilingual jury because the trial will be held in both English and French — the language of Quebec — and while Harding can only speak English, Labrie and Demaitre are French-speakers.

The jury will be asked to listen to extensive audio tapes of conversations Harding had with his dispatcher back at MMA’s head office.

In one excerpt the dispatcher, identified to only as RJ, has to break the bad news to Harding, who had rung up from his hotel at around 3am.

“Okay, but it’s worse than that, my friend,” says RJ.

“Why?” asks Harding.

“It’s your train that rolled down,” RJ tells him.

“No, RJ,” he replies.

“Yes, sir,” says RJ solemnly.

“Holy f***…..she was f***ing secure…. How the f*** did that thing start to roll down, RJ?” says Harding.

‘Proper Public Inquiry Is Needed’

The trial is expected to last until December but many people in Lac-Megantic and across North America are hoping Mr. Trudeau will call a public inquiry afterwards to examine the wider implications.

“What is really needed is a proper public inquiry which brought this wreck about since it is broadly understood that this wreck was inevitable, given the kind of policy decisions that were taking place on the ground…I have always called it a wreck because it wasn’t an accident,” Mr. Edler told Sputnik.

He said he feared that another disaster like Lac-Megantic might happen in another town in the US or Canada because the railroad industry continued to try and push down costs.

“The railroad industry is aggressively pushing the envelope for single crew operations, they are pushing the envelope for more and more of these volatile oils being carried in equipment which has been shown to be inadequate to protect them, and now they are even pushing for trains with no crews whatsoever,” Mr. Edler told Sputnik.

Where’s the real inquiry?

In popular culture, different types of crises and disasters generate different types of narratives about accountability. Natural disasters such as Hurricane Harvey and the B.C. wildfires tend to generate heroic accounts of emergency services; little is said about the town planners that exposed communities to such devastating natural dangers in the first place. Acts of God are understood to be no one’s fault.

Industrial failures, in contrast, typically generate a ruthless and narrow hunt for accountability. The impulse is misleading, as we learn in the inquiries that follow; industrial systems exist in a complex technological and organizational context that prevents us from so easily finding one smoking gun.

This month the trial is set to begin in Quebec of Thomas Harding, the Montreal, Maine & Atlantic Railway Ltd. (MMA) locomotive engineer whose unattended train derailed in Lac-Mégantic on July 6, 2013, killing 47, prompting the evacuation of 2,000, and decimating the downtown area.

The tone for the Lac-Mégantic trial was set 10 months after the tragedy, when Mr. Harding was surrounded at his home by a SWAT team and led away in handcuffs to face charges of criminal negligence causing death, despite the fact that his lawyer had notified the police that Mr. Harding would voluntarily come to the court when asked to appear to face charges. He was escorted to a makeshift courtroom in full view of the news media.

Despite the focus on Mr. Harding, there is plenty of blame to go around. In the Auditor-General’s fall of 2013 report, which examined Transport Canada’s safety oversight of rail, he noted a number of long-standing and important safety issues, including poor implementation and oversight of safety-management systems.

In its report on the incident, published three months after Mr. Harding appeared in court, the Transportation Safety Board (TSB) identified 18 distinct causes and contributing factors for the disaster, three of which it attributed to the regulator, Transport Canada.

These reports coupled with the public focus on Mr. Harding raise important questions about how we hold people to account for these failures and whether these processes will instill confidence in the public that these industrial systems are safe.

While the TSB concluded “the tragedy in Lac-Mégantic was not caused by one single person, action or organization,” many who share responsibility are not exposed to the same level or type of scrutiny as the train conductor, Mr. Harding. Despite the initial media coverage of MMA chief executive officer Edward Burkhardt, he has never appeared in court over the matter. The company filed for bankruptcy protection and has since been sold. Others have also avoided a similar degree of public scrutiny. In a lawsuit, 25 companies were accused of sharing responsibility for the derailment and they contributed approximately $450-million to an out-of-court settlement fund for the victims.

When asked in 2015 by the CBC whether any public servants lost their jobs because of the events in Lac-Mégantic, then-federal transport minister Lisa Raitt obfuscated, “If you take a look at the current listing of people who are in Transport Canada you’ll see there’s a marked difference than the people who were in Transport Canada pre-2013. A lot of it was natural turnover, there was a lot of retirements happening and you know the management of the department lies with the deputy minister.”

A change in government did not bring greater clarity. Transport Canada was one of the contributors to the settlement fund but did not disclose how much it contributed. The new Minister of Transport, Marc Garneau, would simply say, “We don’t acknowledge that we had any responsibility; however, we did want to make a contribution because of the impact of this terrible tragedy in Lac-Mégantic.”

Whether benign neglect or criminal failure, the trial this fall may well reveal poor operational practices at MMA. There will also be claims that Mr. Harding is a scapegoat, standing in the docket to protect government and industry elites or a competitive market context that cuts costs at the expense of safety. The accountability and audit processes that have followed the train derailment underscore that our public institutions also shape the manner in which we hold people to account. The absence of an inquiry into the incentives, actions and governance of the industry underscores how our public institutions can expose some and shield others in the aftermath of a disaster. To instill confidence in the industry and the regulator, the government should have called an inquiry.

Kevin Quigley is the scholarly director at the MacEachen Institute for Public Policy and Governance at Dalhousie University in Halifax and co-author of the coming book, Too Critical to Fail: How Canada Manages Threats to Critical Infrastructure.

EDITOR’S NOTE An earlier version referred to Thomas Harding as the train’s conductor. He was, in fact, the locomotive engineer.

August 15th Labor Music Benefit in Minneapolis raises over $1200

A broad group of supporters and defenders of rail safety, worker solidarity and environmental justice came out to hear why we must defend Tom Harding and Richard Labrie from scapegoating in the Lac-Mégantic oil wreck trial.  Phil Qualy, Minnesota Legislative Rep for SMART-TD (UTU) urged support for the defense.