The TSB report (released August 19) on the Lac-Mégantic train derailment really held no surprises when it came to the failures of the MM&A. The company was found to have insufficient training, procedures and supervision – the three pillars of a satisfactory compliance system. Moreover, its weak safety culture contributed to the continuation of unsafe conditions and unsafe practices, and compromised the railway’s ability to effectively manage safety.

But the report did not stop there, the TSB also finding that less than satisfactory regulatory oversight by Transport Canada was a factor contributing to the disaster. Despite being aware of significant operational changes at MM&A, Transport Canada did not provide adequate regulatory oversight to ensure the associated risks were addressed. It did not follow up to ensure that recurring safety deficiencies at MM&A were effectively analyzed and corrected, and consequently, unsafe practices persisted. The limited number and scope of safety management system audits that were conducted by Transport Canada Quebec Region, and the absence of a follow-up procedure to ensure MM&A’s corrective action plans had been implemented, contributed to the systemic weaknesses in the railway’s safety management system remaining unaddressed.

The picture created by the Report is somewhat like Walkerton, wherein patchy regulatory oversight failed to correct documented operational deficiencies within the Town’s drinking water system. One large difference, however, is that, unlike in Walkerton where the Koebel brothers were engaged in a fraud on public safety, there is no suggestion in the report of subterfuge on behalf of the MM&A.

What the report does not do (and was not intended to do) is set out the basis for which the MM&A and its three employees, including the train engineer, are exposed to conviction for multiple charges of criminal negligence causing death laid against them in May. To be successful, the Crown must be able to prove that the accused acted in a manner that was a marked and substantial departure from what was reasonably expected of them in the circumstances, creating a risk of physical harm to the public that they recognized but continued on with, or simply did not think about.

That could be a difficult objective.

The Report finds that the derailed train was not braked in a manner consistent with the Canadian Rail Operating Rules, but that does mean that the braking method was a criminal departure from the norm, particularly if it was comparable to the industry standard in use at time, and one that remained uncorrected by Transport Canada.

As to the risk, coincident with the report’s release, a number of media outlets obtained and released transcripts of the recorded telephone conversations between the engineer and the MM&A duty dispatcher (also charged) immediately before and after the derailment. From the transcripts, it is apparent that the engineer knew that the single engine (of five) left running on the stopped train experienced a fire and had been shut down. That is potentially important, because the engineer braked the train using a combination of air and hand brakes and without engine power the former would slowly disengage. The engineer offered to re-attend at the train to start another engine but was told there was no need. That is just one potential fact amongst many, but it is not consistent with the uncaring mindset criminal negligence demands.

Parked trains are obviously not supposed to move and derail causing catastrophic damage. But if they do it does not necessarily mean a crime has been committed. An act is not criminal simply because it has caused harm. The challenge in this case for a judge or jury will be staying focused on the acts or omissions of the accused and not straying into the damage caused as a mean of judging them.