“Nobody is perfect,” Harding’s lawyer argues conductor took reasonable actions
The courtroom was crowded on Monday morning as Charles Shearson, one of team of lawyers defending former Montreal Maine and Atlantic (MMA) train engineer and conductor Thomas Harding, began his closing arguments at Sherbrooke’s Courthouse. Laying out his position in defence of Harding, Shearson focused on his client’s character and his humanity in order to argue that while Harding’s actions on the night of July 5, 2013 were certainly not perfect, they were reasonable.
“We’re not here to judge someone for not being perfect, because nobody is perfect,” Shearson said, claiming that the burden of responsibility for ensuring the safety of the train is being placed entirely upon Harding when, in fact, he was acting in accordance with company regulations within a complex and flawed situation. “Conduct does not arise in a vacuum, and to properly understand it you have to have the pieces of the puzzle.”
The defence attorney reviewed the definition of criminal negligence, pointing out that there is no more serious negligence offence in the criminal code and arguing that the conductor and engineer did not behave in a way that warrants such a serious charge.
“A person’s mindset has to be so careless that it shows a wanton or reckless disregard for others’ safety,” Shearson said.
Rather than reckless, Shearson painted his client as an individual who was generally known for being thoughtful and eas specifically witnessed within the context of the Lac-mégantic disaster trying to help.
“If anything, the evidence shows that Tom Harding was that guy in the class who was always volunteering to do something.” He said.
Shearson made no effort to refute the argument made by the prosecution last week that Harding had not properly followed company rules regarding how to secure a train.
“On the night of July 5, Tom Harding did not do an efficiency test in perfect compliance with rule 112-b,” the lawyer said. “We have never tried to attack that point.”
Shearson proceeded to explain, however, that the reason the defense did not attack that point is that rule 112-b, which stated that a conductor was not to rely on air braking systems in securing a train, did not apply in the situation at Nantes. The lawyer argued that the rule which actually applied, p-21 in the general operating instructions, legally required Harding to engage the air brakes. He then referred to the testimony of expert witness Stephen Callaghan in order to establish that the practice had become an accepted norm within the industry at the time of the derailment.
“It wasn’t negligent to rely on airbrakes in Nantes,” the lawyer said. “It was required by the general operating instructions.”
Shearson pointed out that Harding’s behaviour on the night of the disaster looks dramatically different depending on which of the two rules is emphasized.
Harding’s lawyer also argued that his client had been cast into unfair spotlight by the police investigation after the crash because the natural first suspect in a traffic accident is the driver.
“Police officers do not have the necessary training to investigate a transportation accident,” Shearson said, emphasizing the fact that, “In an organization, responsibility for safety stops at the top.” The attention on Harding, his lawyer said, made him an easy target for others looking to escape their own responsibilities. “There are a lot of things that could have been done to prevent this accident,” he added, noting that “sometimes an accident doesn’t need to be one person’s fault.”
Coming back to Harding’s actions, Shearson argued that a system that demands a human to be perfect is flawed, and that if MMA’S expectation was that Harding should perform his duties perfectly and without fault, then he should have been told as much in advance.
“If no one, not management, no one at MMA or Transport Canada, foresaw a risk at Nantes, is it fair to blame Tom Harding after the fact for not seeing it?” Shearson asked, stating that the railway company had a legal responsibility when it began hauling oil trains through Lacmégantic to evaluate the risks involved in stopping trains overnight in Nantes.
“If our employer sees a risk, we take it for granted that they will provide us with the tools to mitigate that risk,” he said.
Shearson pointed instead to the phone call between Harding and rail traffic controller Richard Labrie after his lead locomotive caught fire on the night of July 5 but before it derailed and exploded in the early hours of July 6 in which the conductor repeatedly asks whether there is anything he should do and is told to “go to bed.”
Shearson’s closing arguments are expected to continue through the day on Tuesday, with instructions to the jury by Judge Gaetan Dumas to follow later this week. At that point, two jurors will be excused at random and the remaining group will begin their deliberations. Those deliberations will continue until such time as they can come to three unanimous verdicts, one for each of the accused; Jean Demaitre, Richard Labrie, and Thomas Harding.