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Meaford defence calls for acquittal

Dec. 12, 2011, Toronto – The trial over charges under the Occupational
Health and Safety Act against the Municipality of Meaford, Ont., and its
fire department is on hold while justice of the peace Thomas Stinson
determines whether the Crown has provided enough evidence to proceed.

Meaford Fire Chief Mike Molloy said in a phone interview Friday afternoon that defence lawyer Norm Keith asked for a directed verdict of acquittal, meaning Stinson can dismiss one or all of the three charges, or choose to continue the trial in late April and have the defence present its evidence. 

“We feel we have put forward a good defence and we are hopeful of a positive outcome,” Chief Molloy said. 

Meaford and its fire department were charged by the Ontario Ministry of Labour under OH&S legislation after two firefighters were injured while searching for patrons in a fire at Reed’s Restaurant in September 2009. Three of six charges were withdrawn by the Crown but three others stand: failing to set up an accountability system, failure to establish a rapid intervention team; and failing to set up a command post. 

Keith, the defence lawyer, said Friday afternoon that he was happy with the proceedings. 

“We made an argument this afternoon that says there is no evidence of a contravention of the three provisions in the Occupational Health and Safety Act of which we’re accused,” he said. “There is no evidence.”    

Stinson is expected to rule on the directed verdict motion before April 30.

Keith said that if the court opts to proceed with any of the charges, he will ask to have the charge or charges stayed on the basis of abuse of process by the Ministry of Labour.  

“Part of the complaint that the fire department has about the Ministry of Labour is that the Ministry of Labour’s inspector . . . made promises to the fire department in the course of the investigation that there would be no charges – so a breach of those promises will be argued, amounting to Charter violation and an abuse of process.” 

He said the ministry’s decision to lay the charges, and the role of the Ontario Office of  the Fire Marshal (OFM) in the proceedings, has significant implications for Ontario fire departments. 

“It shows a willingness on the part of the Ministry of Labour to prosecute not only the fire service but also emergency services such as police and EMS. And it’s disturbing, because emergency services respond to crisis situations, where often the community expects the emergency services, including fire, to take risks and protect the community, and emergency services respond to uncertain circumstances that are very hard to predict and prepare for.  

“So, if emergency-service personnel, including a firefighter, is injured because of uncontrolled or unforeseen circumstances, it’s disturbing to think that the Ministry of Labour might point the finger of blame at the emergency service, or the fire chief, or the firefighter who was trying to serve the public interest.”  

Earlier this week, Justice Stinson disallowed a prosecution motion to have OFM investigator Gerry Pritchard deemed an expert witness. He also and rejected a prosecution request to have a statement by Meaford Fire Chief Mike Molloy – who was a captain at the time of the Reed’s Restaurant fire – used in the prosecution’s case.  

“The prosecution . . . was trying to use a statement taken by the OFM investigator against the Meaford and District Fire Department,” Keith said.

“The justice ruled that that it is not legally admissible, and that is a very big win for the fire department, because the role of the fire marshal should not be to assist in the prosecution of a fire department by the Ministry of Labour. But the Ministry of Labour prosecutor was attempting to use a parallel investigation by the OFM and a statement taken by the OFM investigator against the fire department.” 

Chief Molloy said the fire service need clearer direction surrounding Section 21 of the Occupational Health and Safety Act so that everyone understands roles and expectations. 

“I think the outcome will be good for everybody,” Molloy said of the trial. “We are always operating out of fear.”