Euclid Murphy Siding OK Perry Mason. Nobody at the trial is as smart as you are. We get what you're saying. The discussion up above about double jeopardy suggests that there will be more trials. Maybe you should do your civic duty and get in touch with the prosecutors. Since they obviously aren’t up to your level or they would have caught this big technical misunderstanding, I’m sure they would welcome someone of your caliber and experience pointing out what they’re doing wrong. With all due respect, I don’t think you do get what I am saying. It seems your resentment stands in the way.
Murphy Siding OK Perry Mason. Nobody at the trial is as smart as you are. We get what you're saying. The discussion up above about double jeopardy suggests that there will be more trials. Maybe you should do your civic duty and get in touch with the prosecutors. Since they obviously aren’t up to your level or they would have caught this big technical misunderstanding, I’m sure they would welcome someone of your caliber and experience pointing out what they’re doing wrong.
With all due respect, I don’t think you do get what I am saying. It seems your resentment stands in the way.
With all due respect, if we're all hearing it the same way and it's not the way you think you're broadcasting it, perhaps you're not explaining yourself well enough. You appear to be saying that the prosecution screwed up because they’re not as astute as you are. They’re professional attorneys and you’re….not.
Thanks to Chris / CopCarSS for my avatar.
EuclidFirst of all, I am not second guessing the jury in this case even though you are the third person here to accuse me of that. My questions go to the misrepresentation of technical details that was presented to the jury.
Why didn't the Crown call upon you as their Expert Witness to explain things to the jury?
Never too old to have a happy childhood!
Norm48327 Euclid Murphy Siding Euclid I am NOT taking issue with how the jury interpreted it. I am taking issue with the information that they were presented. The jury’s decision making process is irrelevant to my point. I am not second guessing the jury. My point is that the jury was apparently given misleading information by the defense. I do believe it is possible that the misleading information did mislead the jury, but I don’t blame the jury if that did happen. If a jury is given false information, and if they have no way for them to know that it is false, it is natural and right that they act upon it as though it were true. So my point has nothing to do with the jury. My point is completely contained within the statement that I quoted from Mr. Walsh at the start of this thread. As to your sentence above about “the only thing that matters,” I think there is more that matters. What also matters is that the trial gives the jury true and accurate information. In my opinion, what the jury was given with that quoted statement by Mr. Walsh was definitely corrupted by semantics. His quoted point joins Rule 112, and it therefore says it is okay to rely on air brakes during securement; but Rule 112 says it is not okay to depend on air brakes during securement. Both cannot be true. Without further information, Mr. Walsh’s point conflicts with Rule 112, and is therefore false. Here is the misleading part of Mr. Walsh’s quote in blue followed by the missing information in red which is needed to make a true statement: “…leaving your air brakes on [during securement] and relying on them was generalized in the industry prior to the tragedy and it was a way of functioning.” HOWEVER before leaving air brakes on and relying on them during securement, it was required to set enough hand brakes to provide 100% of the retarding force needed to secure the train, and to perform and pass a handbrake effectiveness test without any air brakes applied. Euclid; Bucyrus; Bucky, Please don't interpret my post as a personal attack because it is not intended to be so. If memory serves, back in 2013 you pretty well had Harding strung up from the highest tree in Canada as being the sole cause of the disaster. There were, along the line, mitigating circumstances that lead to his defense including the unforeseen event of the fire department shutting down the locomotive that was the lone source of air for the train brakes. We have seen this before including your instant determination of Brian Bostian, the engineer of Amtrak 188 to be at fault almost before the wreckage came to a full stop. Sure, there are times when the obvious cause is evident but under law that does not afford us the freedom to instantly judge them. What justification you had for your opinion at that time I do not know but I say your instant judgement of his guilt was out of order at the time because none of us here on the forum were aware of ALL of the details, actions, or omissions that led to the train derailing in the middle of town. The jury has spoken, yet you challenge their decision. You appear to disagree with their verdict even though the prosecution did not present a winning case and appear to wish Harding ill. Perhaps Harding did violate a company rule and was indeed guilty of that. OTOH, he appearently violated no civil law so the jury had no option but to vindicate him. That whole sad fiasco could have been prevented had everyone followed the rules to the letter but somewhere along the line one or more links in the chain of events got broken. I just ask you to accept the reality of the verdict and stop second-guessing the jury's motives. They have done their job to the best of their ability. I have been privy to several aircraft accident investigations and will say I never tried to determine a cause ahead of the NTSB. Awaiting the local jailhouse lawyer's rebuttal. LOL.
Euclid Murphy Siding Euclid I am NOT taking issue with how the jury interpreted it. I am taking issue with the information that they were presented. The jury’s decision making process is irrelevant to my point. I am not second guessing the jury. My point is that the jury was apparently given misleading information by the defense. I do believe it is possible that the misleading information did mislead the jury, but I don’t blame the jury if that did happen. If a jury is given false information, and if they have no way for them to know that it is false, it is natural and right that they act upon it as though it were true. So my point has nothing to do with the jury. My point is completely contained within the statement that I quoted from Mr. Walsh at the start of this thread. As to your sentence above about “the only thing that matters,” I think there is more that matters. What also matters is that the trial gives the jury true and accurate information. In my opinion, what the jury was given with that quoted statement by Mr. Walsh was definitely corrupted by semantics. His quoted point joins Rule 112, and it therefore says it is okay to rely on air brakes during securement; but Rule 112 says it is not okay to depend on air brakes during securement. Both cannot be true. Without further information, Mr. Walsh’s point conflicts with Rule 112, and is therefore false. Here is the misleading part of Mr. Walsh’s quote in blue followed by the missing information in red which is needed to make a true statement: “…leaving your air brakes on [during securement] and relying on them was generalized in the industry prior to the tragedy and it was a way of functioning.” HOWEVER before leaving air brakes on and relying on them during securement, it was required to set enough hand brakes to provide 100% of the retarding force needed to secure the train, and to perform and pass a handbrake effectiveness test without any air brakes applied.
Murphy Siding Euclid
Euclid
I am NOT taking issue with how the jury interpreted it. I am taking issue with the information that they were presented. The jury’s decision making process is irrelevant to my point. I am not second guessing the jury. My point is that the jury was apparently given misleading information by the defense. I do believe it is possible that the misleading information did mislead the jury, but I don’t blame the jury if that did happen. If a jury is given false information, and if they have no way for them to know that it is false, it is natural and right that they act upon it as though it were true. So my point has nothing to do with the jury. My point is completely contained within the statement that I quoted from Mr. Walsh at the start of this thread.
As to your sentence above about “the only thing that matters,” I think there is more that matters. What also matters is that the trial gives the jury true and accurate information. In my opinion, what the jury was given with that quoted statement by Mr. Walsh was definitely corrupted by semantics. His quoted point joins Rule 112, and it therefore says it is okay to rely on air brakes during securement; but Rule 112 says it is not okay to depend on air brakes during securement. Both cannot be true.
Without further information, Mr. Walsh’s point conflicts with Rule 112, and is therefore false.
Here is the misleading part of Mr. Walsh’s quote in blue followed by the missing information in red which is needed to make a true statement:
“…leaving your air brakes on [during securement] and relying on them was generalized in the industry prior to the tragedy and it was a way of functioning.”
HOWEVER before leaving air brakes on and relying on them during securement, it was required to set enough hand brakes to provide 100% of the retarding force needed to secure the train, and to perform and pass a handbrake effectiveness test without any air brakes applied.
Euclid; Bucyrus; Bucky,
Please don't interpret my post as a personal attack because it is not intended to be so.
If memory serves, back in 2013 you pretty well had Harding strung up from the highest tree in Canada as being the sole cause of the disaster. There were, along the line, mitigating circumstances that lead to his defense including the unforeseen event of the fire department shutting down the locomotive that was the lone source of air for the train brakes. We have seen this before including your instant determination of Brian Bostian, the engineer of Amtrak 188 to be at fault almost before the wreckage came to a full stop. Sure, there are times when the obvious cause is evident but under law that does not afford us the freedom to instantly judge them.
What justification you had for your opinion at that time I do not know but I say your instant judgement of his guilt was out of order at the time because none of us here on the forum were aware of ALL of the details, actions, or omissions that led to the train derailing in the middle of town.
The jury has spoken, yet you challenge their decision. You appear to disagree with their verdict even though the prosecution did not present a winning case and appear to wish Harding ill.
Perhaps Harding did violate a company rule and was indeed guilty of that. OTOH, he appearently violated no civil law so the jury had no option but to vindicate him.
That whole sad fiasco could have been prevented had everyone followed the rules to the letter but somewhere along the line one or more links in the chain of events got broken.
I just ask you to accept the reality of the verdict and stop second-guessing the jury's motives. They have done their job to the best of their ability.
I have been privy to several aircraft accident investigations and will say I never tried to determine a cause ahead of the NTSB.
Awaiting the local jailhouse lawyer's rebuttal. LOL.
Norm,
First of all, I am not second guessing the jury in this case even though you are the third person here to accuse me of that. My questions go to the misrepresentation of technical details that was presented to the jury. I think I have explained it as clearly and carefully as it can possibly be explained.
I can’t second guess the jury because I have no idea what they should have decided. I put myself into their position and can assure you that I would not know how to determine criminal negligence based on all of the abstruse minutia about reasonable doubt, reasonable person, culpability, intention, gross negligence, willful blindness, recklessness, and the 'misfeasance or 'nonfeasance' (see omission), where the fault lies in the failure to foresee and so allow otherwise avoidable dangers to manifest. I can understand what those terms mean, but I don't know how to measure them in the actions that preceded the accident. So, if I were on the jury, I would have found the defendant to be not guilty, just as the jury did.
I am also not expressing regret that Harding was not found guilty. I am only interested in the technical points of operation that I have mentioned. Mainly, I would like to know if the court believed that Harding had broken Rule 112 or not.
To your other point about stringing up Harding: It was actually me defending Harding against many others on this forum. Back in 2013, I had a thread titled: MM&A President Burkhardt Blaming Oil Train Engineer. That was right after the wreck, and Burkhardt immediately blamed the fire department. Then he switched and blamed the engineer. In hindsight, he might have been right, but at the time, I felt it was premature. There was also something about Burkhardt’s logic that I felt was flawed.
In any case I was accused here of blaming the accident on Burkhardt, which of course, I was not doing. I was accusing Burkhardt for prematurely blaming Harding. Nevertheless, I was bitterly and widely accused of throwing Burkhardt under the bus by many here who were throwing Harding under the bus. Those people succeeded in getting the thread locked when they could not get me to join them in throwing Harding under the bus.
Here is that infamous thread: http://cs.trains.com/trn/f/111/t/219868.aspx?page=1
I see it has picked up over 10,000 more views since being locked.
Murphy SidingThe only thing that matters 'is' what the jury thought it meant. What you somehow think the jury should think it meant 'is' not important.
Norm
Euclid That is interesting. Are you saying that, before the disaster, if CN had left a train parked at Nantes just like the MM&A oil train, they were free to leave it with a full service application of the automatic, full application of the independent and one handbrake on the lead locomotive, but NO HANDBRAKES ON THE CARS?
That is interesting. Are you saying that, before the disaster, if CN had left a train parked at Nantes just like the MM&A oil train, they were free to leave it with a full service application of the automatic, full application of the independent and one handbrake on the lead locomotive, but NO HANDBRAKES ON THE CARS?
No, CN's rules required handbrakes on the cars if the train was left on a grade greater than 0.75%, and IIRC the grade at Nantes is around 0.9%. Our rules also stated that "every effort must be made, including RTC pre-planning" to avoid leaving trains on grades exceeding 0.75%.
But even on lesser grades there is no way that one locomotive handbrake would hold the train, so my (and Callaghan's) point about relying on air brakes for securement still stands.
As it happens there are (conveniently) very few places on CN's main routes with grades greater than 0.75%, so in reality our rule meant that across Canada every single day trains were left unattended in sidings or on main tracks without any handbrakes on the cars, and this was legal.
If a CN locomotive had caught fire and been shut down its train would not have run away, as the air brakes on the cars were already set. But if someone gained entry to the cab and bumped the automatic brake handle then watch out.
The current rules require both handbrakes and a application of the automatic.
Greetings from Alberta
-an Articulate Malcontent
I have listened to that before, and it certainly is moving. It was like dropping a house on Harding. It is especially intense because they were both aware of the fire for some time, but had no idea that it was the oil train. Harding thought it was a broken gas line. There was even a point where someone inquired as to whether the train was still parked Nantes, and was assured that it was. However, it wasn't.
Also, someone driving came to a grade crossing where the runaway train was approaching. He said it burst out of the darkness with no lights, or horn signals and was running very fast.
The jurors heard Harding on tape. Probably convinced them he wasn't a criminal.
https://www.youtube.com/watch?v=bL5Apju72U4&t=1m44s
SD70DudeCallaghan is not entirely wrong, one must remember that before the disaster TRAIN securement standards were far more lax, and Rule 112 was interpreted by some as only really applying to cars left off air. As I have stated before, CN's policy was to leave unattended trains with a full service application of the automatic, full application of the independent and one handbrake on the lead locomotive, but NO HANDBRAKES ON THE CARS. If that isn't relying on air brakes for securement then I don't know what is.
Callaghan is not entirely wrong, one must remember that before the disaster TRAIN securement standards were far more lax, and Rule 112 was interpreted by some as only really applying to cars left off air.
As I have stated before, CN's policy was to leave unattended trains with a full service application of the automatic, full application of the independent and one handbrake on the lead locomotive, but NO HANDBRAKES ON THE CARS. If that isn't relying on air brakes for securement then I don't know what is.
Obviously MMA's rules were quite different, but I believe the 9 handbrakes their rulebook required at Nantes would still have been insufficient to hold that particular train (see TSB report).
There is no question in my mind that Harding made terrible errors in not applying enough handbrakes and then not testing them, but he was not the only MMA Engineer to improperly secure trains. That speaks to a workplace culture that did not properly emphasize rule compliance, and educate employees on exactly what the rules were.
I have said this before but will say it again, Harding will always have to live with the knowledge that it was his train that ran away and killed all those people. Nothing a court can dole out compares with carrying that weight for the rest of your life.
It is very easy to sit back in one's easy chair and point fingers at those at the bottom of the food chain in a situation like this. The railroad industry has been doing that for generations, with the purpose of offloading 100% of the blame away from those at the top, so they may continue making money as before. Norm, how does this compare to the way the airline industry responds to accidents?
I think the jury got it right.
EuclidWith all due respect, I don’t think you do get what I am saying. It seems your resentment stands in the way.
Nah - just calling it as many of us see it.
Larry Resident Microferroequinologist (at least at my house) Everyone goes home; Safety begins with you My Opinion. Standard Disclaimers Apply. No Expiration Date Come ride the rails with me! There's one thing about humility - the moment you think you've got it, you've lost it...
Apparently lost sight of in the minutiae of Euclid's infinite discussion is this: much of an entire town was destroyed and a large number of its residents lost their lives through no fault of their own. The penny pinching, safety last railroad declared bankruptcy and walked away. Prosecutors took pity on Harding, etc., and let them walk, too. Who's taking responsibility?
Randy StahlI don't see a correlation...
She who has no signature! cinscocom-tmw
BaltACD Miningman Firelock-- Canada has no "Double Jeopardy" law. If a defendant has been found not guilty of a crime, the Crown may appeal the ruling all the way to the Supreme Court of Canada. Should new evidence surface after a "not guilty" verdict, even years or decades later, the person found not guilty can and will be charged again and re-tried. One jury giving a "not guilty" verdict is not a lifetime pass. It simply means that at that time and place, the Crown was not able to prove their case. If the defendant is actually not guilty, all well and good, but if they are in fact guilty and sufficient evidence surfaces later, same guy back to court with same charges. Sounds like Canadian 'justice' eats the rotten apple to the core. Not Guilty is never the end of the potential for persecution.
Miningman Firelock-- Canada has no "Double Jeopardy" law. If a defendant has been found not guilty of a crime, the Crown may appeal the ruling all the way to the Supreme Court of Canada. Should new evidence surface after a "not guilty" verdict, even years or decades later, the person found not guilty can and will be charged again and re-tried. One jury giving a "not guilty" verdict is not a lifetime pass. It simply means that at that time and place, the Crown was not able to prove their case. If the defendant is actually not guilty, all well and good, but if they are in fact guilty and sufficient evidence surfaces later, same guy back to court with same charges.
Canada has no "Double Jeopardy" law. If a defendant has been found not guilty of a crime, the Crown may appeal the ruling all the way to the Supreme Court of Canada. Should new evidence surface after a "not guilty" verdict, even years or decades later, the person found not guilty can and will be charged again and re-tried. One jury giving a "not guilty" verdict is not a lifetime pass. It simply means that at that time and place, the Crown was not able to prove their case. If the defendant is actually not guilty, all well and good, but if they are in fact guilty and sufficient evidence surfaces later, same guy back to court with same charges.
Sounds like Canadian 'justice' eats the rotten apple to the core. Not Guilty is never the end of the potential for persecution.
I don't see a correlation...
Randy! It's only 11:30a here!
One of the prosecutors is a real hottie... just sayin...
Euclid Murphy Siding Euclid Murphy Siding In typical fashion, you have once again decided that only you know what the people mean based on what they said. The jury saw it differently than you did, so naturally you feel they just didn't understand it as well as you do. No, I don't think there is anything I am suggesting that conflicts with the way the jury saw it. Maybe you should think about it a little more. The only thing that matters 'is' what the jury thought it meant. What you somehow think the jury should think it meant 'is' not important. I am NOT taking issue with how the jury interpreted it. I am taking issue with the information that they were presented. The jury’s decision making process is irrelevant to my point. I am not second guessing the jury. My point is that the jury was apparently given misleading information by the defense. I do believe it is possible that the misleading information did mislead the jury, but I don’t blame the jury if that did happen. If a jury is given false information, and if they have no way for them to know that it is false, it is natural and right that they act upon it as though it were true. So my point has nothing to do with the jury. My point is completely contained within the statement that I quoted from Mr. Walsh at the start of this thread. As to your sentence above about “the only thing that matters,” I think there is more that matters. What also matters is that the trial gives the jury true and accurate information. In my opinion, what the jury was given with that quoted statement by Mr. Walsh was definitely corrupted by semantics. His quoted point joins Rule 112, and it therefore says it is okay to rely on air brakes during securement; but Rule 112 says it is not okay to depend on air brakes during securement. Both cannot be true. Without further information, Mr. Walsh’s point conflicts with Rule 112, and is therefore false. Here is the misleading part of Mr. Walsh’s quote in blue followed by the missing information in red which is needed to make a true statement: “…leaving your air brakes on [during securement] and relying on them was generalized in the industry prior to the tragedy and it was a way of functioning.” HOWEVER before leaving air brakes on and relying on them during securement, it was required to set enough hand brakes to provide 100% of the retarding force needed to secure the train, and to perform and pass a handbrake effectiveness test without any air brakes applied.
Murphy Siding Euclid Murphy Siding In typical fashion, you have once again decided that only you know what the people mean based on what they said. The jury saw it differently than you did, so naturally you feel they just didn't understand it as well as you do. No, I don't think there is anything I am suggesting that conflicts with the way the jury saw it. Maybe you should think about it a little more. The only thing that matters 'is' what the jury thought it meant. What you somehow think the jury should think it meant 'is' not important.
Euclid Murphy Siding In typical fashion, you have once again decided that only you know what the people mean based on what they said. The jury saw it differently than you did, so naturally you feel they just didn't understand it as well as you do. No, I don't think there is anything I am suggesting that conflicts with the way the jury saw it. Maybe you should think about it a little more.
Murphy Siding In typical fashion, you have once again decided that only you know what the people mean based on what they said. The jury saw it differently than you did, so naturally you feel they just didn't understand it as well as you do.
No, I don't think there is anything I am suggesting that conflicts with the way the jury saw it. Maybe you should think about it a little more.
The only thing that matters 'is' what the jury thought it meant. What you somehow think the jury should think it meant 'is' not important.
OK Perry Mason. Nobody at the trial is as smart as you are. We get what you're saying. The discussion up above about double jeopardy suggests that there will be more trials. Maybe you should do your civic duty and get in touch with the prosecutors. Since they obviously aren’t up to your level or they would have caught this big technical misunderstanding, I’m sure they would welcome someone of your caliber and experience pointing out what they’re doing wrong.
Railroad rules are rules promulgated by the railroad company. 112 was promulgated by an agency of the Canadian Government and is/was as much a law as not running a red traffic light snd obeying speed limits on streets and highways.
At a highway accident, if one was proven speeding or running a red light, then that individual is responsible.
daveklepperHowever, in this case, a mistrial should be called. The judge made the very grevious error in saying the Harding did not transgress any law. 112 is a law, just like running a red light is against the law. And Harding has always admitted he broke that law. The fact that others did and that it was common practice does not contradict the FACT that he broke the law. To say that rule 112 is not a law puts railroad safety in jeapordy, as far as I can see. To say that Harding was not resonsible for his train and that he just needed to follow orders and common practice is to denigrate the profession of locomotive engineer. Again, there is no question in my mind that Harding was guilty, regardless of the jury's verdict, and the Jury was given missinformation by the judge himself, and as Euclid has been trying to convince me, the Crown really did not do a careful job in presenting the case, as proven by the jury's verdict! "That's all there is to it."
To say that rule 112 is not a law puts railroad safety in jeapordy, as far as I can see. To say that Harding was not resonsible for his train and that he just needed to follow orders and common practice is to denigrate the profession of locomotive engineer.
Again, there is no question in my mind that Harding was guilty, regardless of the jury's verdict, and the Jury was given missinformation by the judge himself, and as Euclid has been trying to convince me, the Crown really did not do a careful job in presenting the case, as proven by the jury's verdict!
"That's all there is to it."
Sorry Dave. There are railroad rules and there are civil governmental laws. Rules are not laws. I presume Harding has been adjudicated by MM&A for his rule violations and lost his employment. Civil laws area enacted by the various civil jurisdictions and do not incorporate railraod rule books in their structures.
Euclid Murphy Siding I don't feel it's a technical misunderstanding as much as it is a euclidonian semantics game. In typical fashion, you have once again decided that only you know what the people mean based on what they said. The jury saw it differently than you did, so naturally you feel they just didn't understand it as well as you do. You are once again only a hop, skip & a jump away from saying it all depends on what the definition of 'is' is. No, I don't think there is anything I am suggesting that conflicts with the way the jury saw it. Maybe you should think about it a little more. There is most definitely semantics involved, but I am not introducing it. The semantics are in the way the expert witness Stephen Callaghan described the idea of relying on air brakes during securement in the pre-accident rules, and how Mr. Walsh interpreted that information. That is the best incidence of sematics that I have ever seen. It leads to the two opposing interpretations that I described in my first post. I will add a little clarfication soon.
Murphy Siding I don't feel it's a technical misunderstanding as much as it is a euclidonian semantics game. In typical fashion, you have once again decided that only you know what the people mean based on what they said. The jury saw it differently than you did, so naturally you feel they just didn't understand it as well as you do. You are once again only a hop, skip & a jump away from saying it all depends on what the definition of 'is' is.
No, I don't think there is anything I am suggesting that conflicts with the way the jury saw it. Maybe you should think about it a little more. There is most definitely semantics involved, but I am not introducing it. The semantics are in the way the expert witness Stephen Callaghan described the idea of relying on air brakes during securement in the pre-accident rules, and how Mr. Walsh interpreted that information. That is the best incidence of sematics that I have ever seen. It leads to the two opposing interpretations that I described in my first post. I will add a little clarfication soon.
Firelock76 Folks, a long time ago I gave up trying to second-guess juries and why they reach the decisions they do. I always keep in mind I'M not in the courtroom and I don't see and hear what the jury sees and hears. If the jury aquits in a case I or most people would assume would be "open and shut" the obvious conclusion is the defendant is in fact not guilty, or the prosecution failed to prove it's case. That's all there is to it.
Folks, a long time ago I gave up trying to second-guess juries and why they reach the decisions they do.
I always keep in mind I'M not in the courtroom and I don't see and hear what the jury sees and hears. If the jury aquits in a case I or most people would assume would be "open and shut" the obvious conclusion is the defendant is in fact not guilty, or the prosecution failed to prove it's case.
That's all there is to it.
However, in this case, a mistrial should be called. The judge made the very grevious error in saying the Harding did not transgress any law. 112 is a law, just like running a red light is against the law. And Harding has always admitted he broke that law. The fact that others did and that it was common practice does not contradict the FACT that he broke the law.
[/quote]
jeffhergertThe Section 11(h) of the Canadian Charter of Rights and Freedoms prohibits double jeopardy. It's different from our laws in that acquittals can be appealed. If a new trial is ordered, it's not considered double jeopardy. Once all appeals are exhausted, then the double jeopardy provision kicks in. http://www.torontodefencelawyers.com/blog/general-category/section-11-canadian-charter-rights-freedoms/ Jeff
http://www.torontodefencelawyers.com/blog/general-category/section-11-canadian-charter-rights-freedoms/
Jeff
If the OJ mess had happened in Canada - we might still be hearing appeals.
samfp1943 BaltACD Miningman Firelock-- Canada has no "Double Jeopardy" law. If a defendant has been found not guilty of a crime, the Crown may appeal the ruling all the way to the Supreme Court of Canada. Should new evidence surface after a "not guilty" verdict, even years or decades later, the person found not guilty can and will be charged again and re-tried. One jury giving a "not guilty" verdict is not a lifetime pass. It simply means that at that time and place, the Crown was not able to prove their case. If the defendant is actually not guilty, all well and good, but if they are in fact guilty and sufficient evidence surfaces later, same guy back to court with same charges. Sounds like Canadian 'justice' eats the rotten apple to the core. Not Guilty is never the end of the potential for persecution. Thanks, Miningman! I for one appreciate the response! And to BaltACD... 'Persecution' may be the most appropriate response where no law concerning application of Double Jeopardy exists under the Canadian legal system.
Thanks, Miningman! I for one appreciate the response!
And to BaltACD... 'Persecution' may be the most appropriate response where no law concerning application of Double Jeopardy exists under the Canadian legal system.
The Section 11(h) of the Canadian Charter of Rights and Freedoms prohibits double jeopardy. It's different from our laws in that acquittals can be appealed. If a new trial is ordered, it's not considered double jeopardy. Once all appeals are exhausted, then the double jeopardy provision kicks in.
I want to add some clarifying detail to my first post because the point I am making is that the jury may have believed that Mr. Harding did not break any rules in securing the train. I think it is important because it would be completely contrary to what we have been told since the TSB released their final report.
Regarding Mr. Walsh’s point in which he stated: “The Crown’s expert witness Stephen Callaghan has stated quite clearly that leaving your air brakes on and relying on them was generalized in the industry prior to the tragedy and it was a way of functioning.”
As I understand it, the reason Mr. Walsh made this point was to refer to earlier rules that were changed as a consequence of the Lac Megantic disaster. That is why Mr. Walsh includes the phrase, “prior to the tragedy” in his statement. Apparently, the court had stipulated that the previous rules could be used as a basis to judge Mr. Harding’s performance of the oil train securement.
I believe that what Mr. Walsh is saying is that Harding’s dependence on air brakes to provide a portion of the securement was accepted practice according to the rules before the rules were changed after the runaway. That has to be his point, because he had the role of defending Harding, and that point defends Harding.
If the court is allowed to judge Mr. Harding’s securement according to the older rules, and if Mr. Walsh’s point based on Mr. Callaghan’s statement is true; then Mr. Harding’s application of the independent brake during his push/pull test was not a rules violation in the eyes of the court. The only other objection to Harding’s securement was that he set an insufficient number of handbrakes according to the charts and tables. However, Overmod had made the point that those numbers of handbrakes required by the charts are only a recommended starting point. He says that the only factor that can show that the securement has been properly executed is that it passes the handbrake securement (“push/pull”) test. And if the old rules allowed airbrakes to be used for securement, as Mr. Walsh suggested, then Mr. Harding passed his push/pull test with his use of air brakes. Therefore, according to that overall interpretation, Mr. Harding secured his train according to the rules. So there has to be another reason why it ran away.
The problem is that the securement practice that Mr. Walsh presented, by citing Mr. Callaghan, was NOT acceptable according to the older rules that preceded the accident. It has never been acceptable because air brakes can lose their air pressure and release over varying periods of time. Mr. Walsh probably misunderstood Mr. Callaghan. And judging by some of the other statements made by Mr. Callaghan, he may not have made the point clearly. It is easy to have a concept straight in your head, but have something else come out when you speak or write it; and to do this without realizing it.
So if this point was made to the jury and allowed to go unchallenged by the Crown, the jury was left with an incorrect understanding of Harding’s actions in the securement of the train. Essentially, this point would establish that Harding did not break any rules in the securement. So then the difficulty of proving criminal negligence moves from the challenge of establishing the thresholds of “criminal” to finding anything negligent about what Mr. Harding did.
Murphy SidingI don't feel it's a technical misunderstanding as much as it is a euclidonian semantics game. In typical fashion, you have once again decided that only you know what the people mean based on what they said. The jury saw it differently than you did, so naturally you feel they just didn't understand it as well as you do. You are once again only a hop, skip & a jump away from saying it all depends on what the definition of 'is' is.
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