Police not probing recent rail disasters, crude oil derailments, deaths for possible negligence

Public police forces are choosing not to investigate major accidents at CN and Canadian Pacific Railway, including recent crude oil train crashes and deadly derailments, a CBC News investigation into Canada’s rail system has found.

Instead, the RCMP, Ontario Provincial Police and other forces routinely defer to little-known federal railway police run by CP and CN, leaving the companies to investigate themselves with no outside police looking into potential criminal negligence.

It’s infuriated some families of workers killed on the railways who claim a “double standard” where outside police are willing to move in to clear blockades along Canada’s rail lines but routinely don’t investigate rail corporations in the event of major disasters or fatalities.

“It makes me angry,” said Tara Jijian, whose husband was killed working at CP’s rail yard in Regina.

“Because the blockades and protests affect the economy somewhat, everybody rushes to make sure that, you know, ‘We have to clear this off, this has to be dealt with,’ ” said Jijian.

“But when it’s a person that is killed on those same railway tracks, the police just absolutely refuse to get involved.”

Instead, outside police defer to the railways, which since the 19th century have employed their own fully authorized federal police forces, which have all the powers of regular police.

But unlike public police, rail police lack any civilian oversight, are paid for by private companies and are not governed by any formal police act.

CBC has uncovered a string of recent major rail crashes where no police force of any kind stepped in – or only railway company police investigated — leaving what some say is a vacuum of accountability when it comes to potential criminal negligence on Canada’s rail lines.

Fiery derailments, no police

In three recent derailments that leaked millions of litres of crude oil in Saskatchewan and Ontario, no police agencies investigated, CBC has found.

In early December, when 33 tanker cars crashed and exploded southeast of Saskatoon, CP Railway said their police service did not investigate and referred inquiries to the RCMP.

“The RCMP has been involved and has jurisdiction,” a CP spokesperson said.

The RCMP appeared dumbfounded.

“I’m not totally sure where you are getting your information,” the RCMP told CBC, pointing back to CP police and the Transportation Safety Board as the lead agencies.

“In this case we were only there for traffic control and to assist if required with any type of evacuation,” the RCMP said.

Two months later, just seven kilometres down the same CP rail line, a second crude oil train derailed and exploded, forcing evacuation of the hamlet of Guernsey.

Drone footage shows second derailment in two months

Neither CP police nor the RCMP investigated, despite striking similarities in the crash on the same rail line where regulators had earlier found problems with the track.

In northern Ontario, neither OPP nor CN Police are investigating the derailment of an oil train near Fort Frances on Feb. 18, 2020, involving 26 crude oil tanker cars, CBC has confirmed.

Unlike in a highway car crash where police investigate, in rail a crash the Transportation Safety Board is the agency with the responsibility of probing causes and coming up with safety recommendations.

But the TSB does not lay charges and said it is not “legally competent to assign fault.”

The TSB says that’s up to police.

“The fact that TSB is investigating does not preclude any other agency from investigating in accordance with its own mandate (e.g. police, coroner, regulator, etc.),”  TSB spokesperson Geneviève Corbin wrote in an email.

Railway police say outside forces are welcome to step in.

“The RCMP not only have jurisdiction to investigate offences that occur on CP property but are duty-bound to do so,” said CP spokesperson Jeremy Berry.

The RCMP and other forces point back to railway police and say they won’t intervene unless asked.

This finger pointing and jurisdictional dodge ball means that in Canada, public police forces seldom — if ever — investigate failures by railways in major disasters, including after a runaway train in the B.C. mountains last winter that killed three crew members.

In connection with that crash, a Transportation Safety Board official has publicly called for the RCMP to investigate potential criminal negligence.

CBC asked both CN and CP whether, in the past 20 years, they’ve ever called in outside police to lead investigations into a major railway incident involving a death, serious injury or derailment. Both declined to answer that question or answer whether they have ever criminally charged an employee related to railway operations.

The RCMP, OPP, Toronto Police or Hamilton Police — all of which helped clear recent rail blockades — couldn’t point to a single case over 20 years where they used their authority to probe a railway crash or fatality.

Rail corporations ‘above the law’

A lawyer for the families of Jamie Jijian, who was killed in CP’s Regina yard in 2012, and Kevin Timmerman, who was killed in CN’s Saskatoon yard in 2015, is going to court to challenge the railway police system.

“The problem is that it puts an elite group of corporations above the law,” said Tavengwa Runyowa, who filed a constitutional challenge last month after seeing a documentary by CBC’s The Fifth Estate on the B.C. derailment case.

“We cannot have a situation in Canada where corporations can own the police who will investigate them, and tell nothing to the victims of the people who died on their premises. We’re saying it’s unconstitutional,” said Runyowa.

In the challenge, the families are arguing that Jijian and Timmerman were denied their right to life, liberty and security of person through a failure of the railway police to effectively investigate their own companies, which they allege allowed safety problems to persist and ultimately costing the two men their lives.

CN and CP declined to comment and have not yet filed a response with the court.

In the case of Jamie Jijian, the family pleaded with Regina police to step in to conduct an independent probe.

They received a leaked internal Transport Canada death report that’s usually kept confidential, which pointed to failures at CP. It concluded Jijian was crushed to death moving rail cars in a yard amid snow-covered tracks, an “atypical track configuration” and a “risky” decision by a supervisor.

But Regina police refused.

“Despite your assertion that there is a conflict of interest in this matter, it remains our position that this falls within the jurisdiction of the CP Police Service,” a lawyer for the Regina police wrote to Runyowa.

Similarly, in Saskatoon, no outside police stepped in after the 2015 death of CN conductor Kevin Timmerman.

He was walking along the tracks in the CN yard when he was struck from behind by a train.

A TSB rail safety advisory concluded that the yard traffic co-ordinator had changed the work plans inside the yard, rerouting a train, and failed to alert all the crew on the ground.

Timmerman’s family says CN police have refused to provide any information.

“If it was a traffic accident or a murder or anything like that, the RCMP within Canada would investigate it, and there’s reports and there is accountability to everybody, right?” said Lori Desrochers, Timmerman’s former spouse.

“Here you’ve got a police force that’s paid by a company. Well, of course they’re not going to call out their employer,” she said. “When it comes to fatalities, the RCMP should be involved.”

The families have written to Prime Minister Justin Trudeau, Attorney General David Lametti and Transport Minister Marc Garneau, as well as the commissioners of the RCMP and OPP, pleading for changes in the policing of railways.

“We are concerned with what appears to be a double standard in how the RCMP responds to railway policing incidents,” their letter said.

“When Canada’s railway companies need assistance, for example policing the Wet’suwet’en protests and their supporters, the RCMP readily intervenes,” wrote Runyowa.

“However, when there is a workplace death, derailment, oil spill or other railway incident that may be attributable to railway companies themselves, the RCMP defers to the private police forces that the companies fund and control.”

CP Rail’s police chief said in a statement that the Canadian Pacific Police Service is compliant with the Railway Safety Act and is “independent of CP when acting pursuant to their law enforcement powers.”

CN declined to respond to questions from CBC.

‘Untenable, unprecedented’

Canada’s biggest rail union, Teamsters Canada Rail Conference, is calling for the total abolition of railway police.

Curt Griffiths, a professor of policing studies at Simon Fraser University in B.C., calls railway police a “historical anomaly” left over from the late 1800s when Canada’s railways were being built.

“It’s quite unbelievable actually that you’re leaving it to a railway police to investigate itself when there are particularly serious injuries or deaths involved and potentially negligence,” Griffiths said.

“I think most Canadians are going to be surprised that you have police officers with all the powers of a public police officer with none of the accountability,” said Griffiths.

Griffiths believes Canada’s laws need to be rewritten to make investigation of rail disasters the job of the RCMP and to take it out of the hands of railway company police.

“The current arrangement is untenable. It’s actually unprecedented these days and it cannot be fixed within the existing situation. You have to change the structure and you have to change the arrangement: they can’t be both public and private police.”

Garneau, Canada’s transport minister, has not been available for an interview.

In a statement, Transport Canada said outside police have “discretion” and “can investigate any criminal conduct if they have jurisdiction over the area where the accident occurred,” citing the Lac-Megantic derailment in 2013 as one example where both RCMP and Quebec provincial police took charge.

However, the federal regulator declined to answer questions about reforming railway police.

CBC