Crimes and culpability

Two court judgments, both delivered just before Christmas, are instructive not just for their content but for the way they let daylight in upon the magic of judicial thinking in Canada. It’s hard to pass up such a golden opportunity to see the inside of the sausage machine.

Walkerton, Ont., was performing its function as the county town of Bruce County on Dec. 17, holding a session of the Ontario Superior Court. The case at hand was the one that made Walkerton famous around the world: the epidemic of water-borne bacterial infection in May 2000 that claimed seven lives and put more than 150 in hospital.

Water-utility manager Stan Koebel was sentenced to a year in jail for the quaintly titled offence of “committing a common nuisance,” in that he falsified records and lied about test results that would have led to an earlier discovery of the contamination of the town’s water supply. His brother Frank, the former utility-commission foreman, was convicted of the same offence and sentenced to nine months house arrest.

Mr. Justice Bruce Durno said the Koebel brothers “did not and do not stand alone” as the authors of the Walkerton epidemic. In that he echoed the findings of a formal inquiry headed by Mr. Justice Dennis O’Connor, who spread the blame around to several quarters, including the Ontario government, partly on the grounds that spending cuts had impaired the ability of the province’s Ministry of the Environment to monitor drinking water quality.

In Yellowknife, N.W.T., Mr. Justice Arthur Lutz delivered a judgement in a civil case brought by families of nine strikebreaking miners murdered at the Giant gold mine in 1992. The families, and the miner who discovered the nine miners’ bodies, sought damages both in compensation for loss and for suffering.

Mr. Justice Lutz found for the plaintiffs, and awarded $10 million against a number of defendants named in the suit. He found Roger Warren, the striking miner convicted of murder in the deaths of the nine men, liable for 26% of the judgment; mine owner Royal Oak Mines (now bankrupt) and the parent union of the striking local, the Canadian Automobile Workers, liable for 23% and 22%, respectively; security firm Pinkertons liable for 15%; the Territorial government, 9%; and two strikers and a local CAW officer liable for 5% altogether.

In both these cases, someone was convicted of a criminal offence in connection with crimes that led to fatalities; and in both cases, civil courts or judicial inquiries spread the blame around. (Mr. Justice Lutz deserves praise, of a sort, for being quantitative about it.)

Considering the Walkerton case first, we note that much of the public noise around the case centred on a blame-Michael-Harris litany, in which (somehow) the provincial government’s decision to leave water testing to private laboratories caused seven people to die. Except it definitely did not: the private laboratory that tested Walkerton water correctly identified Escherischia and Campylobacter contamination, notified the town, and did everything right. The problem was that the man on the other end of the fax transmission lied about the results.

Mr. Justice O’Connor sensibly shot down the nonsense that was being talked about private laboratories, but still found the provincial government had contributed to the Walkerton epidemic; in particular, that provincial supervision of the local utility was inadequate. Yet that conclusion seems to arise out of the assumption that the province should see to the adequacy of the utilities commission, not that the utilities commission owes a duty of care to the people it serves. And nobody in government — provincial or municipal — made Stan Koebel lie about test results.

In the Giant Mine case, Mr. Justice Lutz takes a murder — done by one man, with several others as accessories — and finds civil liability that attaches to two sides of a labour dispute and to the territorial government.

There can be no doubt that both Royal Oak and the local union were reckless in what they did to the workforce and community in Yellowknife during the 1992 Giant strike. And certainly the company had to have been conscious that threats of violence made it essential that anyone brought in to work during the strike needed an assurance of protection. But neither the union nor the company nor Pinkertons nor the territorial government made Roger Warren kill nine miners.

Yes, organizations have a responsibility to do their jobs right. But it is individuals who carry that responsibility out, or don’t. Judgments that blur that line do a disservice to the law and to society.