Court File and Parties

Court File No.: County of Grey 1060-999-10-396

Date: 2012-02-23

Ontario Court of Justice

Between:

Her Majesty the Queen (Ministry of Labour)

— and —

The Meaford and District Fire Department, A Department of The Corporation of the Municipality of Meaford

Before: Justice of the Peace Thomas Stinson

Heard on: September 26, 27, 28, 29, December 5, 6, 7, 8, 9, 2011

Reasons for Decision on Motion for Directed Verdict released on: February 23, 2012

Counsel:

Daniel Kleiman, for the prosecution

Norman Keith, for the defendant

JUSTICE OF THE PEACE STINSON:

Introduction

[1] The Meaford and District Fire Department, a department of The Corporation of the Municipality of Meaford, is currently on trial. It is facing three charges contrary to section 25(2)(h) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (hereinafter referred to as the "OHSA") as a result of two of its firefighters being injured while fighting a fire at Reeds Restaurant in Meaford, Ontario, on September 9, 2009. Section 25(2)(h) of the OHSA reads as follows:

"Without limiting the strict duty imposed by subsection (1), an employer shall....take every precaution reasonable in the circumstances for the protection of a worker."

[2] The Ministry of Labour likely laid its charges under this general duty section of the OHSA because there are no sector-specific regulations under the authority of the OHSA that deal with firefighters. There is a regulation pursuant to the OHSA, O. Reg. 714/94, that specifically addresses the issue of protective equipment for firefighters, but it is not relevant to the charges currently faced by the defendant arising out of this incident.

[3] There are, however, relevant guidelines that the court needs to consider. These are entitled the Guidance for Improving Health & Safety in the Fire Service (hereinafter referred to as the "Section 21 Guidelines") and are prepared by the Ontario Fire Service Health and Safety Advisory Committee established under section 21 of the OHSA.

[4] While the defendant was originally facing six charges, only three remain. The other three charges (counts #2, #3 and #5 on the information) were withdrawn by the Crown at the conclusion of a pre-trial conference on August 12, 2011.

[5] Each of the three remaining counts alleges that the defendant did commit the offence of

"failing, as an employer, to take every precaution reasonable in the circumstances for the protection of a worker, at a workplace located at 27 Nelson Street, Meaford, Ontario",

contrary to section 25(2)(h) of the OHSA. The particulars of count #1 are that the defendant

"failed to take the reasonable precaution of activating an accountability system to track firefighters entering a burning structure."

[6] The particulars of count #4 are that the defendant

"failed to take the reasonable precaution of maintaining effective supervision of an incident by establishing a command post at an appropriate location where radio transmissions could be heard by the incident commander."

[7] The particulars of count #6 are that the defendant

"failed to take the reasonable precaution of establishing a Rapid Intervention Team (a "RIT") for the protection of firefighters entering a building who may become lost or trapped."

[8] The trial on these three remaining charges commenced on September 26, 2011 at the Ontario Court of Justice (Provincial Offences Court) in Owen Sound, Ontario. The Crown's case continued on September 27, 28 and 29, 2011 and on December 5, 6, 7, 8 and 9, 2011. At the conclusion of these nine days of trial, the Crown rested its case. The court then heard a defence motion, notice of which had been filed with the court by the defence prior to the commencement of the trial, calling for a directed verdict of acquittal on the remaining charges.

[9] During the first week of the presentation of its case, the Crown called a total of ten witnesses. Seven of these are, or were, volunteer firefighters with the Meaford and District Fire Department at the time of the fire at Reeds Restaurant on September 9, 2009. These were Robert Pilon and Bryan Gibbons, who were the two firefighters injured in the fire; James Marshall and Mark Young, who were the firefighters who rescued firefighter Pilon; Ryan Knight and Brett Dunlop, who were among the firefighters who rescued firefighter Gibbons; and A.J. Shortt. The other Crown witnesses were Robert Isbester, a paramedic with Grey County Emergency Medical Services, Wendy Donaldson, the records manager with the Hanover Police Service, and Karen Hanna, a provincial specialist with the Occupational Health and Safety branch of the Ministry of Labour in the Industrial Health and Safety Program. Ms. Hanna was also the facilitator of the Ontario Fire Service Health and Safety Advisory Committee.

[10] During the second week of the trial, the Crown called two more witnesses. These were Dan Shaw, who was the deputy chief of the Meaford Fire Department at the time of the Reeds fire, and Gerald Pritchard, a Fire Investigation Coordinator with the Office of the Fire Marshal (hereinafter referred to as the "OFM").

The Events of September 9, 2009

[11] A basic chronology of what apparently occurred on the morning of September 9, 2009 can be developed from the testimony of many of the Crown witnesses and the transcript of the radio communications that day. A brief synopsis follows, keeping in mind that the court, at this time, is not assessing, in any way, the credibility of any witnesses.

[12] Early on the morning of September 9, 2009, at approximately 6:02 a.m., a bystander places a 911 call to alert authorities of a fire at Reeds Restaurant, located at 27 Nelson Street, Meaford. The caller thinks that there might be someone within the burning building. The Hanover Police dispatch, which handles 911 calls from the Meaford area, immediately began paging the Meaford Fire Department.

[13] Within minutes of receiving the pages, several Meaford firefighters, including Rob Pilon, James Marshall, Bryan Gibbons, Dan Shaw and Terry Turner attend at the Meaford fire hall. These five men board Pumper 5, which is the first fire department vehicle to arrive on the fire scene.

[14] Pilon and Gibbons immediately grab a hose and head to the back corner of the building where the fire is burning. Pilon states that, at this time, he radios to the incident commander, Deputy Chief Dan Shaw, that they wish to check inside the upstairs apartment and receives authorization to do so.

[15] Pilon and Gibbons enter the building and go up to the second storey where they encounter very heavy smoke. They radio for another firefighter to meet them with a thermal imaging camera. Pilon exits the building, obtains the camera and re-enters the building. The camera would assist in helping locate people within the smoke-filled building. This all occurs within approximately three minutes, from 6:13 a.m. to 6:16 a.m.

[16] By the time firefighter Pilon exits the building to retrieve the camera, the second fire truck has arrived. This second fire department vehicle, Rescue 3, brings Mike Molloy, A.J. Shortt and Mark Young to the scene. Molloy was a volunteer captain with the Meaford Fire Department at the time and he is now the chief. Shortt and Young were volunteer firefighters.

[17] Upon arrival, Shortt takes a 200 foot long hose from Pumper 5 and drags it approximately 150 metres to attach it to a fire hydrant on the other side of Highway 26. It takes him a couple of minutes to do this. Marshall and Young assist him. Once this is accomplished, Shortt returns to the fire scene. He obtains the accountability board from Rescue 3 and proceeds to set it up in front of Pumper 5 which was parked in front of the Reeds building.

[18] Shortt only receives tags from one other firefighter, Mark Young, and he had obtained these while they were en route. Upon assuming the responsibility of accountability officer, Shortt begins looking around to see who else is on site and also looks for tags of firefighters. He is obviously aware that Molloy and Young are on scene, since he arrived with them, and Shortt sees Dan Shaw on scene as he is setting up the accountability board.

[19] The third fire department vehicle to arrive at the scene of the fire is the pumper tanker. On board it are Captain Rolly Wilkie and firefighters Brett Dunlop, Ryan Knight and Darren McCausland.

[20] Once back upstairs, Pilon states that he and Gibbons receive a radio communication from Captain Mike Molloy, outside the building, that apparently there are indeed occupants in the building. Pilon and Gibbons proceed into an office. Pilon states that Gibbons told him that there is a strange noise coming from Pilon's air cylinder. Pilon checks his air supply and sees, to his shock, one blinking red light, which indicates that he is completely out of air.

[21] At 6:23 a.m., Pilon radios that they will be exiting the building with a low air alarm. He does not receive a response. Pilon and Gibbons begin to leave, but they inadvertently end up in the dining room, rather than the stairwell. Pilon makes another radio call, a minute later at 6:24 a.m., and asks for a RIT to be activated.

[22] Pilon, by this time, is having trouble breathing, so Gibbons takes Pilon's radio, as Gibbons does not have one, to begin making radio transmissions. They continue to try to exit the building. Gibbons begins to share his air regulator with Pilon. Pilon indicates, by this time, that he could hear the RIT inside the building. The two firefighters continue sharing air through Gibbons' regulator. At that time, firefighter James Marshall finds Pilon and leads him to safety. A second RIT goes in to rescue Gibbons. Thankfully, both firefighters substantially recover from their injuries suffered in this incident.

Count #1

[23] As stated earlier, count #1 alleges that the defendant failed to take the reasonable precaution of activating an accountability system to track firefighters entering a burning structure.

[24] The concept of the accountability system was explained by several witnesses, including Pilon, Gibbons, Shortt and Shaw. Briefly, it involves setting up a system at a central location at a fire scene, where one firefighter is specifically assigned to the position of accountability officer. It is that firefighter's job to know exactly which firefighters are on scene and what they are doing. This is often accomplished by physically displaying what is known as an accountability board. Firefighter Gibbons confirmed that in all cases of structure fires, in his experience as a Meaford volunteer firefighter, there is always an accountability officer eventually in place.

[25] There is no specific legislative requirement for a fire service to set up an accountability system at a fire scene. However, the importance of such a system is discussed in Section Five of the Section 21 Guidelines, titled "Personnel Accountability". Guidance Note #5-1, subtitled "Firefighter Accountability and Entry Control" states that

"the employer must ensure that whenever the incident command system is utilized that it contains provisions for firefighter accountability and entry control at the emergency scene. It is recommended that employers establish written policies and operational guidelines for personnel accountability and entry control in accordance with the provision of their own incident command systems."

[26] Nothing within the remainder of Guidance Note #5-1 states anything specific with respect to the timing of the set-up of an accountability system, nor does it reference the numbers of firefighters required or any methodology to be followed. This Guidance Note, only one page long, is quite general.

[27] Guidance Note #5-1 goes on to acknowledge that

"the accountability system may be adapted to individual fire department resources."

However, any accountability system set up must, among other things, account for the location and function of all personnel at an incident, and it must provide a means for extraction of firefighters from the interior of a hazard zone when conditions present an immediate life hazard.

[28] Pilon advised that, at the time he arrived in the first fire truck, accountability was not set up. The accountability board and the accountability officer arrived in the second truck. Firefighter Gibbons, while unable to recall the specific events of September 9, 2009, agreed that Meaford's usual procedure was that the actual formal accountability officer usually did not arrive on a fire scene in the first fire truck.

[29] Pilon testified that, prior to the arrival of the second vehicle, when accountability has yet to be established, it is up to the incident command officer to know where each firefighter was. The incident command officer at the Reeds fire was then-Deputy Chief Dan Shaw.

[30] The court heard from several witnesses, including A.J. Shortt, that he acted as accountability officer for a period of time at this incident. Upon being relieved of his traffic directing responsibilities, Shortt returns to the scene and retrieves the accountability board from the Rescue 3 fire truck. He estimates that he does this within seven minutes of arriving on scene. As he was the passenger in the second fire vehicle to arrive on scene, he sets up the accountability board, as this is the customary responsibility of the firefighter in that position. Shortt places the board in front of Pumper 5.

[31] During his testimony, Shortt is shown a copy of a picture of the accountability board which had been entered as an exhibit. It shows tags of two firefighters, Steve Nickels and Dan Shaw, attached to it. It does not show any tags, or any written names of firefighters, in the section of the board designated for RIT.

[32] As stated earlier, Shortt obtains one tag from firefighter Mark Young. This is the yellow tag, indicating that he is on scene. Firefighters would generally give their second tag, a green one, to the accountability officer, when they enter into a fire.

[33] Shortt testified that he attempted to establish who was on scene by visual observation and by actively going looking for tags. He agreed, in cross-examination, that the firefighters who had already entered the building prior to his arrival on scene as accountability officer would be unable to provide their tags directly to him, but he testified that they should have given their tags to someone else, such as the incident commander or another officer who, in turn, could give them to the accountability officer once that system was set up. At the time he was setting up the accountability board, Shortt did not know which firefighters, if any, had been assigned to be a RIT.

[34] Shortt testified that Dan Shaw, the incident commander, did not provide him with any tags from the two firefighters who had entered the building. Firefighter James Marshall testified that he believed that he had left his tags with Deputy Chief Shaw, though he was unable to recall specifically having done this. Firefighter Brett Dunlop testified that he had provided his tags to Captain Wilkie when they were en route to the fire scene. However, upon refreshing his memory by hearing a recording of a statement he gave to representatives of the OFM shortly after the fire, Dunlop admits to having given his tag to someone, but he is unsure who that was.

[35] Firefighter Mark Young advised that he had his accountability tags with him and that he would have given to them to the passenger in the front seat of Rescue 3. He believed that to be Captain Mike Molloy. It was Young's evidence that the officer to whom he handed his tags would then, in due course, place them on the appropriate spot on the accountability board.

[36] Firefighter Ryan Knight, in his testimony, stated that he had his tags with him when he arrived on the scene, but that he did not provide them to anyone, because he recalled still having them with him on his coat when he returned from the hospital after having accompanied Pilon there. Knight did not recall seeing an accountability officer on scene. He confirmed that Meaford's usual practice was that whoever was riding in the passenger seat in Rescue 3 would be the accountability officer. This usual practice was also confirmed by Deputy Chief Dan Shaw. Knight also stated that the regular practice en route would be to give tags to the senior person, who was generally the front passenger in a truck. Accountability, at least to start with, was thus through the senior officer in each vehicle.

[37] It was Dan Shaw's evidence that accountability was set up upon arrival, he thinks by Shortt, but Shaw acknowledged that he did order Shortt, because of the shortage of manpower, to assist in hooking up one of the hoses.

[38] Perhaps as soon as one minute after he sets up the accountability board, Shortt is advised that firefighter Pilon is in distress. Shortt then leaves the accountability board, assists Pilon until Pilon is taken to the hospital and then Shortt actively fights the fire. Shortt does not return to the accountability board.

[39] Standard Operating Guideline (hereinafter referred to as the "SOG") 207 of the Meaford Fire Department on the subject of "Accountability System" states, with respect to its firefighters, that

"when their duties and sectors have been assigned, they will leave their name tag with the accountability officer for placement on the board before departing for their sector assignments."

[40] Pilon admits that he did not follow this procedure. He did not have his nametags with him, as they had been inadvertently sent out for cleaning with his regular bunker gear. Firefighter Shortt also testified that its procedure outlined in SOG 207 was not followed on this occasion. In his testimony, Shortt testified that this was somewhat typical, stating that:

"like sometimes that happens where you don't get the tags when you first get there; you have to go and find who's on scene."

[41] SOG 207 concludes with the statement that:

"THIS POLICY/PROCEDURE IS NOT EXPECTED TO SUBSTITUTE FOR GOOD JUDGMENT AND EXPERIENCE OF A FIRE OFFICER UNDER UNUSUAL CONDITIONS".

[42] The court did not hear any evidence from firefighter Tammy Kean, who apparently took over as accountability officer after A.J. Shortt began caring for firefighter Pilon after Pilon's rescue.

[43] Gerald Pritchard, the OFM inspector, observes the accountability board when he arrives on the scene later that day, after the fire is extinguished. He describes it as being not in operation at that time, with no obvious accountability officer present. Pritchard also testified that, at that time, he locates the accountability tags of firefighters Marshall and Gibbons hanging on a hook in the back of the cab of Pumper #5.

Count #4

[44] Count #4 alleges that the defendant did not maintain effective supervision of the incident in that it did not establish a command post at an appropriate location where radio transmissions could be heard by the incident commander. Again, there is no specific legislative requirement for a fire service to set up a command post at a fire scene. However, such a system is discussed in Section Two of the Section 21 Guidelines, titled "Communications". Headings under this section include "Incident Command" and "Radio Communications".

[45] The only technical evidence that the court heard with respect to the radio transmission system used by the Meaford Fire Department was provided by Wendy Donaldson, the records officer with the Hanover Police Department. The Meaford Fire Department shares its radio system with other emergency and first responder services in the area, all coordinated through the Hanover Police Service.

[46] The court had filed with it a written transcript of the relevant radio communications that dealt with the Reeds Restaurant fire. The transcript, and the actual audio recordings which were also heard by the court, show that radio transmissions that morning were frequent. Given the events that were unfolding, this is not surprising. It includes transmissions from, among others, Shaw, Shortt, Pilon, Gibbons, Young, Molloy and Knight. The transmissions span a time frame from 6:02 a.m. on the morning of September 9, 2009, when the 911 call regarding the fire was first placed, until approximately 45 minutes later.

[47] The only relevant portion of Guidance Note #2-3 entitled "Radio Communications" is contained within its last two sentences. They read as follows:

"Mayday and RIT deployment operations are known to cause significant radio communications congestion. Incident Command radio communications procedures to address these operations should be developed."

[48] Very little evidence that specifically addressed the radio communications system in place that day was provided to the court. The number of different firefighters using the system would indicate that the radio system was functioning that day.

[49] At 6:13:45 a.m., according to the transcript, Pilon advised:

"Command, we are going to come back and check the apartment, it's really rolling back here."

He testified that he then received a 10-4 from Dan Shaw, the incident commander. Pilon took the response from Shaw to mean that Shaw acknowledged and accepted that Pilon and Gibbons were entering the building.

[50] Pilon subsequently radios for someone to obtain the thermal imaging camera. The transcript notes this occurring at 6:15:19 a.m. Upon retrieving the camera, Pilon communicates over the radio that he is going back into the building. This occurs at 6:16:24 a.m. From the transcript, there does not appear to be a specific response to that communication. At 6:18:55, Pilon radios that they are continuing the search, but not finding anything yet.

[51] At 6:19:09 a.m., there is a conversation between Pilon and Captain Mike Molloy, in which Molloy advises Pilon that apparently the owner of the building is upstairs. Pilon acknowledges receipt of this message.

[52] Pilon testifies that, when he radios to advise that he and Gibbons are exiting the building with a low air alarm, he receives no response. This, according to the transcript, occurred at 6:23:18 a.m. Pilon states that, at that time, others were speaking on the radio, advising of their activities with respect to ground operations on the scene. Pilon does not find the amount of chatter to be unusual or inappropriate.

[53] Subsequently, at 6:24:16 a.m., Pilon radios that he is out of air and is activating RIT. He does not receive a response to this. He repeats this message at 6:25:02 a.m., also requesting that all other radio transmissions cease. Incident command, Dan Shaw, responds and asks Pilon to repeat his message.

[54] At this point Gibbons takes the radio from Pilon and makes a mayday call. Shaw apparently mishears this and thinks that more hose is being requested. Gibbons repeats his mayday request. These conversations are occurring at 6:25:38 a.m.

[55] At 6:26:30 a.m., Molloy advises that a team is on its way into the building. This would be the first RIT, consisting of firefighters Marshall and Young. Pilon is clear that he is rescued before 6:32:03, the time of entry of the second RIT, because he knows he was safely out of the building before the second RIT went inside.

[56] With respect to his use of the radio, Deputy Chief Shaw testified that when he arrives on the fire scene in the first responding truck, he radios to dispatch while in an alleyway between two buildings. He does not think that this transmission went through, however, because he does not hear it on the recording or see it on the transcript.

[57] Shaw describes his hearing of radio communications during this event as absolutely terrible. He thinks some of this might have been because he was not wearing a headset. He also thinks that the noise from Pumper 5 may have affected his hearing of his radio, which was located in his chest pocket. In cross-examination, however, Shaw testified that, at the time of many of the radio transmissions noted on the dispatch transcript, he did not know where his radio was. He may have put it down or put it in his pocket. Shaw stated that he was not the only one on site that day who was having troubles with radio communications, but he opined that perhaps he just needed to turn up the volume on his radio. He also testified that he was moving around at the scene quite a bit.

[58] Shaw further testifies that he did not direct firefighters Pilon or Gibbons to enter into the burning building, nor did he hear any radio communications that they gave indicating that they were in the building. When directed to several instances on the transcript from radio dispatch that appear to have him responding to firefighter Pilon, Deputy Chief Shaw indicates that it is possible that he heard the messages, but he may not have understood them at the time and he does not now recall having heard them then. He agrees, however, that his use of the phrase "10-4" in response to a dispatch from Pilon directed to Command would indicate that he had heard and was acknowledging the message. Throughout much of his testimony, Shaw frequently states that he does not recall the details of many of the specific events of that day.

[59] Firefighter Shortt testifies that, when he and firefighter Young are initially hooking up the hose to the fire hydrant, they are able to radio to Pumper 5 that they had turned on the hydrant. While Shortt does not have a radio, because he did not grab one from the back of the fire truck upon his arrival on scene, Young does.

[60] Firefighter Marshall testifies that he had a radio with him, but that it was not functioning. He did not know what was causing this problem.

[61] Firefighter Dunlop testifies that he does not have a radio with him when he arrives on scene. However, his captain, Rolly Wilkie, has a radio. Dunlop also testifies that the driver of the truck in which he arrives, McCausland, was speaking on the radio en route to the scene. Dunlop, because of radio chatter that he and Captain Wilkie hear but could not clearly decipher, attends to the front of the building and Dunlop is reassigned to be part of the RIT sent into the building to rescue firefighter Gibbons. At this time, he is given a radio by Captain Molloy, though Dunlop did not actually use it during the rescue of Gibbons.

[62] Firefighter Young, in his testimony, confirms that, while en route to the scene in the pumper tanker, they receive instructions, in the form of a radio communication from the initial fire truck on scene, to take the pumper tanker to the rear of the restaurant. In cross-examination, Young states that this radio communication was between Captain Wilkie in the pumper tanker and incident commander Dan Shaw already on site.

[63] Firefighter Young does not hear any orders for firefighters to enter the building. He believes, however, that he may have heard over the radio something from dispatch indicating that there was possibly a person in the building. And, in cross-examination, Young recalls that he heard Pilon state that he was going back into the building after having received the camera.

[64] In his testimony, Young describes the initial mayday calls coming in over the radio. When asked if incident command reacted to the apparent mayday, Young responded:

"Not initially. It was unclear of what the actual call was. They had called for confirmation, both incident command and entry control, who were side by side at that time, called for confirmation of what the call was, and it came back again, unclear again, and they called again for confirmation."

[65] It is Young's recollection that when he is having discussions with Molloy and Shaw, around the time when the mayday calls are being made by Pilon and Gibbons, Pumper 5 is not actually pumping water. Had it been so doing, in Young's opinion, the noise in the immediate area would have been even louder than it was. Young describes voice levels during this conversation as being somewhat elevated, but not to the point of yelling.

[66] With respect to noise, firefighter Shortt testified that the noise level near the accountability board was loud, because of the combination of the burning structure, people all around and Pumper 5 running its pump.

[67] When he enters the building as part of the second RIT, firefighter Knight is given a radio and speaks to Captain Molloy during the course of the rescue. During the rescue, Molloy orders all other firefighters to maintain radio silence, except for emergency traffic.

[68] Background information regarding the radio communication system used that day is provided by Ms. Donaldson. The Meaford Fire Department is one of over twenty local police and fire services that pay a fee to use the radio system provided by Hanover Police. It receives and record all 911 calls, as well as police and fire radio communications. Ms. Donaldson prepared the written transcript, filed as an exhibit during the course of the trial, of all relevant radio and telephone calls received by dispatch during the Reeds fire.

[69] She provided helpful testimony to the Court, outlining how the system is capable of simultaneously recording multiple telephone calls or radio dispatches and time-stamping them. This explains how, on the written transcript, there appears to be some overlapping of various dispatches and why they seem, on the face of the transcript, to be out of chronological sequence.

[70] Ms. Donaldson states that, as far as she knew, no fire departments using the system had ever complained, either before or after the Reeds fire, of the system's audio quality.

Count #6

[71] Count #6 alleges that the defendant did not establish a RIT for the protection of firefighters entering a building who may become lost or trapped. Once more, there is no specific legislative requirement for a fire service to set up a RIT at a fire scene. However, such systems are discussed in Section Six of the Section 21 Guidelines, titled "Procedures". One of the notes in this section is "Rapid Intervention Teams (Rescue)".

[72] Guidance Note #6-11 is this specific note. It reads:

"The employer should provide written operational guidelines for establishing rapid intervention crews/teams of at least two firefighters to rescue firefighters in circumstances where there is the potential to become lost or trapped."

It also states that RITs can be composed either of on-scene firefighters designated and dedicated to being on a RIT, or of on-scene firefighters performing other functions but ready to deploy as RITs if necessary. The Guidance Note also acknowledges that:

"Based on resources at hand, it may be necessary that emergency rescue activities take place before a RIT has assembled."

This flexibility would appear to acknowledge the wide variance in the sizes of different fire services within Ontario. The timing and use of RITs, therefore, is very much dependant on the size and response of the particular fire department. Based on his experience as a Meaford firefighter, Pilon described being part of a RIT as:

"...to be prepared and ready to go with your packs on your back, not on air, waiting, floating around to jump into action if need be."

[73] Firefighter Marshall states that it was the Meaford Fire Department's general policy, prior to the Reeds fire, to set up a RIT whenever fighting a structure fire. Firefighter Knight testifies that, generally speaking, Meaford's practice was to set up a RIT team before anyone entered a building, but that there were exceptions to that occurring. However, he could not specifically recall any such exceptions. On the day of the Reeds fire, Knight does not know when a RIT is established in relation to firefighters going into the building, as he is on the third fire vehicle to arrive on scene and much of his work, when first arriving, was at the rear of the building. Knight testifies that RIT procedures became more strictly enforced after the Reeds fire.

[74] Pilon indicates that, while the first truck was on its way, firefighters on board discussed that firefighter Marshall would team up with a member of the next crew to establish the RIT. The Meaford Fire Department's SOG #208 has as its subject matter "Rapid Intervention Teams". This SOG confirms that RIT members

"may be used for other light duties on the exterior of the fireground as may be necessary"

while awaiting their possible deployment as a RIT.

[75] Pilon testifies that Meaford's general procedure was that RIT would consist of the second team arriving on scene in the first fire truck. On September 9, 2009, as the first truck, Pumper 5, was short one member, it was apparently agreed that Marshall would team up with a member of the next-to-arrive truck, Rescue 3, to form the RIT.

[76] Firefighter Marshall testifies that, once he and firefighter Mark Young are done with their initial responsibilities of hooking up the hose to the hydrant, they go back to the fire scene. He states that they would be assigned either to be a RIT or to man a fire hose. While awaiting specific instructions, Pilon's mayday calls are heard, and Marshall and Young are designated as a RIT. Marshall initially heads to get the RIT bag which is in a cabinet on the side of Pumper 5, but he is called back and instructed, along with Young, to enter the building immediately to search for the firefighters inside.

[77] Marshall advises that a RIT bag would normally contain, among other things, an extra air cylinder, rope, gloves, and an extra face mask. He stated that, if the need to enter a burning building ever occurred again, he would prefer to have a RIT bag with him, but he stated

"at the same time if it wasn't available, I would've tried to use any means I could to rescue my guys if the need be."

[78] As indicated earlier, Marshall and Young constitute the first RIT that goes into the building. They are able to rescue Pilon. Firefighter Dunlop is among those who form the second RIT. Firefighter Young, upon exiting the building with Pilon, provides instructions to Dunlop as to where firefighter Gibbons could be located within the building. Dunlop follows firefighters Knight and Acres into the building and finds Gibbons at the hose line, where Young had said Gibbons would be. Dunlop estimates that he is inside the building for two minutes. Young estimates that the rescue of Gibbons may have taken up to four minutes.

[79] In his testimony, Mark Young confirms that he was assigned by Captain Molloy to be part of a RIT. This occurs very shortly after Young returns from attaching a hose line to a hydrant. Young initially reports back to Deputy Chief Shaw who indicates that there might be a need for Young to assist at the rear of the building. However, within ten seconds of Shaw directing Young to go to the back of the building to check on needs there, Captain Molloy, who is standing beside Shaw, redirects Young to be part of a RIT. Young is clear that this new order comes approximately one minute prior to hearing the mayday calls of Pilon and Gibbons. According to Young, Deputy Chief Shaw did not dispute Molloy setting up a RIT consisting of Young and Marshall.

[80] Once the mayday calls were heard and understood, Young is told to enter the building to attempt a rescue. He grabs an axe and a flashlight from Pumper 5, though he does not take a full RIT kit. Young felt that he had not completed all the functions he would normally have done in preparation for being part of a RIT.

[81] Similarly, firefighter Knight is intercepted, placed on the second RIT and sent into the building on short notice. He had observed firefighter Pilon exiting the structure. Knight estimates that, within a minute of Pilon leaving the building, Knight and firefighter Jason Acres are in the building to attempt the rescue of Gibbons. Knight has the radio which had been given to him by Captain Molloy and an attack line, and he believes that Acres had a flashlight. Neither has a RIT kit. The two firefighters, within a minute of entering the building, quickly find Gibbons but are unable to free him. Firefighter Knight, who is in contact with Captain Molloy over the radio, calls for assistance, and they are joined by firefighter Dunlop. Knight estimates that within a couple of minutes after Dunlop comes upstairs, they are able to remove Gibbons from the building.

[82] Despite firefighter Young's testimony that Deputy Chief Shaw is standing beside Captain Molloy when Molloy orders the establishment of the first RIT, Shaw states that he does not recall RIT being established in his presence prior to him being aware of the emergency. However, he states that he recalls two firefighters standing, waiting to be activated, but he does not recall which firefighters they were.

The Law on Directed Verdicts

[83] Modern Canadian case law on the issue of directed verdicts stems from the Supreme Court of Canada's decision in United States of America v. Shephard, [1977] 2 S.C.R. 1067. Much of this jurisprudence specifically addresses the issue within the context of preliminary hearing judges committing accused persons to trial wherein their guilt or innocence will be decided by a jury. Obviously, in the case at bar, being a trial held in front of a justice of the peace pursuant to the provisions of the Provincial Offences Act, R.S.O. 1990, c. P.33, (hereinafter referred to as the "POA") and the OHSA, there is no jury, and any decisions as to the eventual guilt or innocence of the defendant will be made by me, in due course. Nevertheless, the binding case law is clear. At this stage, on the hearing of a motion made by the defence for a directed verdict of acquittal, the court does not take into account issues of credibility. It will assume that all the evidence it has heard is true. The court, at this time, is not deciding which witnesses are to be believed. The majority decision in Shephard was written by Ritchie J. In it, he stated, at page 1080:

"The 'justice', in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction."

[84] The Supreme Court of Canada, in the case of R. v. Charemski, [1998] 1 S.C.R. 679, addresses the issue of what the court can do when the evidence adduced by the Crown is circumstantial. In Charemski, both the majority and the minority decisions affirmed Shephard. The dissenting decision, though, written by McLachlin, J. (as she then was) states, at paragraph 22:

"Where the case is based on circumstantial evidence, i.e., where any of the elements are not established by direct evidence, the task of the trial judge is more complicated. The Crown adduces evidence from which it submits facts in issue can be inferred from facts not in issue. In order to determine whether a properly instructed jury could reasonably convict, the judge must determine whether, assuming the circumstantial facts are proved, it would be reasonable to make the inference necessary to establish the facts in issue."

[85] McLachlin J. goes on to state, at paragraph 23, that

"whether the evidence is direct or circumstantial, the judge, in assessing the sufficiency of the evidence must, by definition, weigh it."

She concludes, at paragraph 30:

"In my opinion, the test for a directed verdict in Canada remains the traditional one: whether a properly instructed jury acting reasonably could find guilt beyond a reasonable doubt. Where it is necessary to engage in a limited evaluation of inferences in order to answer this question, as in cases based on circumstantial evidence, trial judges may do so; indeed, they cannot do otherwise in order to discharge their obligation of determining whether the Crown has established a case that calls on the accused to answer or risk being convicted."

[86] The Shephard principle was affirmed in the Supreme Court of Canada's decision in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828. In paragraph 1 of that case, McLachlin, C.J.C. states:

"This appeal raises the question of whether a preliminary inquiry judge may 'weigh the evidence' in assessing whether it is sufficient to warrant committing an accused to trial. For the following reasons, I reaffirm the well-settled rule that a preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict, and the corollary that the judge must weigh the evidence in the limited sense of assessing whether it is capable of supporting the inferences the Crown asks the jury to draw. As this Court has consistently held, this task does not require the preliminary judge to draw inferences from the facts or to assess credibility. Rather, the preliminary inquiry judge must, while giving full recognition to the right of the jury to draw justifiable inferences of fact and assess credibility, consider whether the evidence taken as a whole could reasonably support a verdict of guilty."

[87] In Arcuri, McLachlin, C.J.C. refines her comments in Charemski. At paragraph 30 of Arcuri, she states:

"In performing the task of limited weighing the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of 'limited weighing' never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence."

[88] The Shephard test is further refined by the Supreme Court of Canada in R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at paragraph 53, in which Fish J. holds that there must be

"evidence in the record upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt."

The importance of this is clearly noted by Backhouse J. in R. v. Schell, [2009] O.J. 4668, where she states, at paragraph 10:

"in R. v. Fontaine ...the unanimous court accepted this position and recrafted the Sheppard [sic] test to include reference to the criminal standard of proof."

Application of the Law to Count #1

[89] The evidence provided to the court with respect to count #1 can be summarized as follows. The Section 21 Guidelines, specifically Guidance Note #5-1, require that whenever the incident command system is used, there must be provisions for firefighter accountability and entry control. The court heard that Deputy Chief Dan Shaw was the incident commander, that firefighters A.J. Shortt and Tammy Kean acted, at various times, as accountability officers, and that Captain Mike Molloy was the entry control officer. SOG 207 requires all firefighters, once their duties and sectors have been assigned, to

"leave their name tag with the accountability officer for placement on the board before departing for their sector assignments."

Meaford Fire Department's SOG 811, headed "Accountability and Entry Control", mandates a slightly different procedure, in that it specifically states that

"all personnel on arrival at the scene shall don their equipment and fasten their ID tag to the left side (accountability) of the Accountability Board."

The SOG provides further instructions with respect to the second tags, stating

"all firefighters entering the affected area shall first check-in with the Entry Control Control [sic] Officer by providing their second ID tag, which shall be fastened to the right side of the Accountability Board using the Velcro attachment."

[90] Clearly, these SOGs were not followed. It was firefighter Pilon's evidence that he did not have his name tags with him. The only firefighter to provide his tags directly to A.J. Shortt, the accountability officer, was Mark Young. The picture taken of the accountability board at the scene shows tags from only two firefighters, Nickels and Shaw. Firefighter Marshall thinks he left his tags with Shaw, but does not specifically recall doing so. Firefighter Dunlop gave his tags to someone, but is unsure who that was. Firefighter Knight did not give his tags to anyone, as he still had them with him upon returning from the hospital later that day. Pritchard, the OFM investigator, located the tags of firefighters Marshall and Gibbons in the back of the cab of Pumper #5.

[91] Now it is clear that neither the OHSA nor any regulation pursuant to it specifically addresses the issue of fire departments' accountability systems. And the court notes that the relevant Guidance Note, #5-1, within the Section 21 Guidelines, is brief and acknowledges that it can be adapted to different situations. But it is also evident from what the court heard from many of the witnesses that the Meaford Fire Department's procedures as set out in SOGs 207 and 811 were not followed. The court is well aware that the defendant's own SOGs set out much higher and more detailed standards than do the Section 21 Guidelines. However, without deciding, at this point, whether such apparent non-compliance with internal guidelines of the Meaford Fire Department could provide a sufficient basis for a conviction on a charge pursuant to section 25(2)(h) of the OHSA, it is clear to the court that there is certainly some evidence which, if believed, could lead a trier of fact to conclude, beyond a reasonable doubt, that an accountability system was not properly activated at the scene of the Reeds fire and that every precaution reasonable in the circumstances was not taken. Therefore, with respect to count #1, the defendant's motion fails.

Application of the Law to Count #4

[92] The evidence provided to the court with respect to count #4 can be summarized as follows. The radio system was being used by many of the firefighters present. The particulars of this count specifically allege that the incident commander did not set up a command post at an appropriate location where radio transmissions could be heard.

[93] Firefighter Pilon, according to his own evidence and that of the transcript, radios to incident command, Deputy Chief Shaw, that he and Gibbons wish to check out the upstairs of the building for occupants. This request appears to have been heard and acknowledged by Shaw. Pilon has other radio conversations with Captain Molloy again regarding the possible presence of someone in the apartment. Pilon makes two radio calls regarding his equipment malfunction that do not receive responses. He hears other radio conversations occurring at this time. Deputy Chief Shaw appears to hear the third call, though apparently he initially misunderstands it. Captain Molloy then takes over the conversations with the firefighters inside the building.

[94] The court heard that radios being used by, among others, firefighters Young, Wilkie and Knight. None complained of difficulties. Firefighter Marshall testified that he had a radio that was not functioning properly.

[95] The complaints and comments of Deputy Chief Shaw regarding the radio system can be summarized as follows. Communications were terrible, but he was not wearing a headset, and he also may have, for some period of time, put the radio down somewhere or put it in his pocket. He also mentions the noise from Pumper #5 as possibly lessening his ability to hear, though firefighter Young believes that Pumper #5 was not actually pumping any water at the time the mayday calls were received, at which time Shaw and Molloy were standing beside each other. Shaw also was moving around quite a bit at the scene.

[96] The use of particulars to provide details regarding a charge is mandated within section 25(6) of the POA which states:

"A count shall contain sufficient detail of the circumstances of the alleged offence to give to the defendant reasonable information with respect to the act or omission to be proved against the defendant and to identify the transaction referred to."

[97] Case law from the Supreme Court of Canada also requires the use of particulars when necessary. In R. v. Brodie, [1936] S.C.R. 188, Rinfret J. (as he then was) states, at pages 193–194 [S.C.R.] with respect to particulars, that:

"[O]ne of its main objects being that the accused may have a fair trial and consequently that the indictment shall, in itself, identify with reasonable precision the act or acts with which he is charged, in order that he may be advised of the particular offence alleged against him and prepare his defence accordingly."

[98] Particulars form part of the charge. The Supreme Court makes this very clear in the case of R. v. Saunders, [1990] 1 S.C.R. 1020, where McLachlin, J., at page 223 [C.C.C.] states:

"It is a fundamental principle of criminal law that the offence, as particularized in the charge, must be proved."

She continues later, on the same page, as follows:

"The Crown chose to particularize the offence in this case... Having done so, it was obliged to prove the offence thus particularized. To permit the Crown to prove some other offence characterized by different particulars would be to undermine the purpose of providing particulars."

[99] None of the Section 21 Guidelines addresses the issue of where to set up a command post. The court was not provided any information that any of the Meaford Fire Department's SOGs deal with this issue. None of the Crown's witnesses testified that they believed, in any way, that the incident command was located at an inappropriate location. No alternate locations were suggested. There was simply no evidence provided to the court that in any way addressed the particulars of count #4. The defence's motion with respect to this count succeeds, and the court directs a verdict of acquittal with respect to count #4.

Application of the Law to Count #6

[100] The evidence with respect to count #6 can be summarized as follows. Accepting the evidence that the court has heard, firefighter Marshall, arriving in the first fire department vehicle, was to form a RIT with a firefighter arriving in the next vehicle. Marshall is initially assigned, however, to move a hose with firefighter Young. Having done so, they both return to the fire scene. By this time, Pilon and Gibbons have already entered the building. Both Marshall and Young expect then that either they would be on standby as a RIT, or they would be assigned to other duties.

[101] Their recollections of the timing of what specifically happened next differs somewhat. Marshall states that they are assigned by Captain Molloy to be a RIT as the maydays calls from Pilon and Gibbons were being heard and understood. He states:

"Firefighter Young and I were at the front with Captain Molloy, who's Chief Molloy now. While we were standing, discussing or, or waiting to hear where we were going to go, we heard a – something over Mark's radio or Mike's radio that sounded kind of urgent."

[102] Young, on the other hand, states as follows:

"He [referring to Deputy Chief Dan Shaw] said I can proceed either to the back of the building to support the guys that were doing fire depress – suppression there. And as we were talking, Mike Molloy was there, and it became apparent that we needed backup for the guys that were inside. So myself and James Marshall were assigned to back up as the RIT team."

[103] Young further specifies:

"After we were told to be backup, we heard radio communication for a mayday."

He estimates that the mayday call came within a minute after he and Marshall had received the command to be the RIT.

[104] Deputy Chief Shaw also recalls seeing two firefighters standing by waiting to be activated, but does not seem clear on the timing on exactly when the RIT was activated.

[105] While there are, therefore, inconsistencies regarding the specific timing of the establishment of the first RIT, all witnesses who were asked about the RIT clearly testified that RITs were eventually set up. The relevant Guidance Note within the Section 21 Guidelines, #6-11, as noted earlier, is quite flexible and specifically allows for firefighters to be performing tasks while awaiting possible deployment as a RIT. It also does not require a RIT to be established prior to firefighters making entry into a hazardous area. Again, the particulars form part of the charge. In this case, the particulars allege that a RIT was not established. There is absolutely no evidence that would support this allegation. Therefore, the defence's motion with respect to this count succeeds, and the court directs a verdict of acquittal with respect to count #6.

Conclusion

[106] The trial on the one remaining count, being count #1 on the information, will therefore resume as scheduled on Monday, April 30, 2012 at 10:00 a.m. The court is prepared to sit for the remainder of that week in order to hear any evidence the defendant chooses to call, followed by closing arguments and submissions on the defendant's amended Notice of Application and Constitutional Question which was previously filed with the court.

Released: February 23, 2012

Signed: "Justice of the Peace Thomas Stinson"