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Flashpoint: August 2012

The collapse of the roof of the Algo Centre Mall in Elliot Lake, Ont., in June raised a lot of questions: What were the root causes of the collapse? Could anything have been done to prevent it? Was the emergency response adequate?
As the official processes play out, how will the rights of all parties be protected?

Section 11(h) of the Canadian Charter of Rights and Freedoms provides that, “Any person charged with an offence has the right, if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.” 

This provision against double jeopardy is an important protection against malicious prosecution, false arrest or other misuse of authority. With a criminal investigation by the Ontario Provincial Police (OPP), an Occupational Health and Safety Act (OH&S) investigation by the Ministry of Labour (MOL), a coroner’s investigation by the Ministry of Community Safety and Correctional Services, and a public inquiry under the auspices of an appointed commissioner all having been announced or begun, are any parties responsible for the collapse of the Algo Centre Mall potentially facing quadruple jeopardy?

Section 11 of the Charter applies to criminal prosecution only. The other quasi-judicial actions are not investigating offences under the Criminal Code of Canada. Looking at them one at a time:

The Office of the Chief Coroner is responsible for determining circumstances of death, specifically who was the deceased, where did the death occur, when, how and by what means did the death occur.

In certain circumstances governed by legislation, a mandatory coroner’s inquest will be called. If the answers to the five questions are determined by investigation, a discretionary inquest may still be called if there may be a broader public interest in an open and full hearing of the circumstances of a death. Such interest may be served through coroner’s jury recommendations to prevent other deaths in similar circumstances. 

The purpose of an inquest is not to place blame or make a finding of legal responsibility. Criminal proceedings arising out of a death must be resolved before an inquest can be held.

In Ontario, the MOL is responsible for investigating OH&S violations that may have factored into a workplace death. Although no criminal responsibility can be determined, employers and supervisors can be prosecuted and may be subject to financial penalties and personal incarceration. 

As with coroner’s inquests, an MOL investigation may identify and recommend preventive actions. A coroner’s inquest arising from the same incident will not begin until the MOL has completed its work, in order not to interfere with the investigation and to make use of its findings.

The purpose of the Public Inquiries Act is to “establish an effective and accountable process for public inquiries where there is a public interest to independently inquire into facts or matters, and make recommendations regarding those facts or matters.” That’s a fairly vague statement of purpose, which leaves a broad scope of circumstances under which inquiries may be called. 

Each of the other processes is mandated by statute, whereas a public inquiry is called at the discretion of the government. This is a very expensive undertaking, which appears to be similar in purpose to a coroner’s inquest.

However, the considerable investigative powers given to a commissioner appointed to conduct an inquiry allow for a greater depth of investigation.

I don’t have any information on which to base an opinion on the OPP investigation. My crystal ball says that the MOL investigation will not result in any charges, unless the lottery kiosk where the victims were located was operated directly by the owners of the mall. The coroner will determine fairly quickly that the two deceased, an employee and a customer of the lottery kiosk, died accidently of traumatic injuries, but no inquest will be called due to the duplication of purpose that would occur with the public inquiry.  Recommendations will include more rigorous enforcement of building inspections, particularly of rooftop parking facilities. The increase in the average weight of personal vehicles over the last 30 years will be cited as a factor. Call me a dreamer, but I predict that the reinstatement of federal support for HUSAR task forces will be recommended, if not the entire Joint Emergency Preparedness Program.

Call me a cynic, but that funding will not be reinstated until several months before the next federal election is called.

Retired District Chief Peter Sells writes, speaks and consults on fire service management and professional development across North America and internationally. He holds a B.Sc. from the University of Toronto and an MBA from the University of Windsor. He sits on the advisory council of the Institution of Fire Engineers, Canada Branch. Peter is president of NivoNuvo Consulting Inc, specializing in fire-service management. Contact him at peter.nivonuvo@gmail.com