Eastway Tank bid to quash Ottawa police search warrants can proceed, judge rules

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Eastway Tank will be allowed to proceed with its application to quash Ottawa police search warrants and have documents and electronic storage devices returned to company owner Neil Greene, according to a judge’s ruling Friday.

The documents were among 26 boxes of evidence seized by Ottawa police in a July 2023 search of the company’s office and Greene’s car and home as police reopened a criminal investigation into the 2022 explosion and fire that killed six Eastway workers.

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Greene’s lawyers have asked a judge to quash the search warrants and return seized documents, business records and electronic data that may be protected by solicitor/client privilege.

The lawyers are also asking for a declaration from the court that the July 26, 2023 search and seizure violated Greene’s charter rights.

Those arguments have not yet been heard in court as the matter is set to resume in December.

Greene has not been charged with any criminal offence.

In April, Eastway and Greene pleaded guilty to three Ministry of Labour charges and were fined a total of $850,000.

An initial investigation by Ottawa police found no criminal wrongdoing in the explosion, but police opened a new criminal negligence investigation after the provincial offence charges were laid in December 2022.

Ottawa Police Service lawyer Vanessa Stewart argued that the investigative team, at the time the search warrants were executed, believed they were authorized in the seizure of business documents related to Eastway, along with digital data storage devices.

The day after the seizure, OPS was notified by Greene’s lawyers that some of the material could be protected by solicitor-client privilege.

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Green is represented by Mark Ertel and Kirstin Macrae with the Bayne Sellar Ertel Macrae law firm.

In November, Ottawa police asked the court for an order appointing an independent referee to review the documents.

In a hearing in August, Stewart argued Greene’s application to quash the warrants was “manifestly frivolous” and “would inevitably fail” if it was allowed to be heard in court.

On Friday, Superior Court Justice Julie Bergeron disagreed with that argument and sided with Greene’s defence.

An application for a summary dismissal should only be granted “if the application is manifestly frivolous,” Bergeron ruled, citing legal precedent that is designed to “preserve fair trials, protect the accused’s right to full answer and defence, and to ensure efficient court proceedings.

“If the frivolous nature of the application is not manifest or obvious, then the application should not be summarily dismissed and should instead be addressed on its merits,” Bergeron ruled Friday.

Eastway Tank and Greene’s application “is not manifestly frivolous,” Bergeron ruled, and the judge said she believes “there is a possibility the application could succeed.”

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Eastway and Greene “are not required to wait until charges are laid before seeking a remedy for a breach of their charter rights.”

Bergeron said there is no requirement under the Charter of Rights and Freedoms “that a person who has been subject to a lawful search needs to wait until they are charged with an offence to challenge the unlawful seizure of their property and seek a remedy.”

Because of the legal challenge, police have not examined any of the documents, which remain sealed in secure police storage.

In an agreed statement of facts entered during the trial on the Ministry of Labour charges, the court heard that the explosion occurred during a “wet test” of a tank at Eastway’s Merivale Road plant on Jan. 13, 2022.

Wet tests are used to check fuel tanks for leaks, but the court heard that the diesel fuel used in the wet test that day had been contaminated by gasoline, greatly increasing the chance that fuel vapours would explode.

An investigation by Ontario’s Office of the Fire Marshal concluded that a gasoline-air vapour explosion occurred inside Eastway’s main shop, possibly triggered by mechanical spark or static electricity.

That initial explosion triggered a second, larger explosion that brought down the roof of Eastway’s building. Five workers in the plant died in the blast, and a sixth died the following day in hospital.

ahelmer@postmedia.com

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