Eastway Tank wins bid to argue Charter rights were violated in fatal explosion criminal probe

A judge has ruled that Eastway Tank, Pump and Meter can go ahead with its plan to argue that search warrants and seizures related to an explosion that killed six of its employees should be nullified over alleged Charter violations.

If Eastway succeeds with those arguments, which will take place later, Ottawa police would have to return all the documents and data seized in their investigation into whether Eastway owner Neil Greene may have committed criminal negligence causing death and bodily harm leading up to the explosion.

It's been nearly three years since the blast on Merivale Road on Jan. 13, 2022, killed employees Rick Bastien, Etienne Mabiala, Danny Beale, Kayla Ferguson, Russell McLellan and Matt Kearney. 

The criminal investigation began a year later, just days before the Ministry of Labour laid regulatory charges against Greene and Eastway. Officers executed search warrants and made a number of seizures six months after that, in the summer of 2023.

Since then, police mistakes and defence team manoeuvres have brought the criminal investigation to a grinding halt, according to court documents that CBC News successfully argued should be made reportable earlier this year.

Mistake in warrant application

Police acknowledge they made mistakes in documents they submitted to convince judges to grant the search warrants against Greene, officer affidavits state, resulting in 26 boxes full of documents being seized unlawfully.

Greene's lawyers — the firm of Bayne Sellar Ertel Macrae — plan to argue his Charter rights were violated.

They want all the search warrants and production orders for insurance documents and the Ministry of Labour's investigative report quashed, and everything that was seized returned.

His lawyers say the ministry report and insurance filings formed the basis of the criminal investigation, and that obtaining them was essentially a "fishing expedition" for grounds that a crime may have occurred.

As well, they say police seized information protected by solicitor-client privilege, a rule that keeps private any communication between lawyers and their clients.

Motion to dismiss

Police tried to block Greene's move to quash everything. In Ottawa's Superior Court in August, a police prosecutor argued it was frivolous and wasting more time in an important investigation already beset by delays.

On Friday, Justice Julie Bergeron sided with Eastway. (Bergeron normally presides in Cornwall, and was brought in because several Ottawa judges were in conflict and couldn't hear the case).

Bergeron ruled it's possible that Greene's motion could succeed, and that he doesn't have to wait until charges are laid to plead his case.

An assistant Crown prosecutor from Toronto will take over from police prosecutors, and both sides will be back in court in December to discuss next steps.

Greene has not been charged with any crime. He and Eastway pleaded guilty in April to regulatory provincial offences for failing to ensure that diesel used for testing trucks wasn't contaminated with gasoline or other flammable liquids.

Eastway also pleaded guilty for failing to adequately inform, instruct and supervise workers about safe fuel storage and handling to protect them from contaminated diesel.

Judge rules on contract to weed out sensitive material

Negotiations have been ongoing since last fall between Greene's lawyers and police about any seized material protected by solicitor-client privilege.

A contract over how to weed protected material out — to be paid for by police — was drawn up last year. Some of the work had been carried out as of early May, according to police filings, but investigators still weren't given anything to examine.

Then, in mid-May, Greene's defence applied to have the warrants and production orders quashed, and everything that was seized returned.

In mid-June, the digital evidence was handed over to police, Greene's lawyer Kirstin Macrae said.

As for the physical documents, negotiations had broken down after Greene's team proposed amendments that police didn't agree with. Bergeron ruled against some of Eastway's proposed amendments to the contract, paving the way for the rest of the work to be completed once an amended contract is finalized.

Lawyers for Greene declined to comment Friday morning. The Ottawa Police Service said its thoughts remain with the victims and their families, but declined to comment further as the matter remains in court.