R. v. Canadian National Railway and Kennedy Date:, 2012 BCPC 330

Citation: R. v. Canadian National Railway and Kennedy Date: 20120703 2012 BCPC 0330 File No: 73045-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CANADIAN NATIONAL RAILWAY and RORY KENNEDY RULING ON VOIR DIRE OF THE HONOURABLE JUDGE ROMANO Counsel for the Crown: John D. Cliffe, Q.C. and Steven Postman Counsel for the Defendant Canadian National Railway Company F. Mark Rowan Counsel for the Defendant Rory Kennedy : Christopher Harvey, Q.C. Place of Hearing: Abbotsford , B.C. Dates of Hearing: October 25, 27, 28, 2011; January 9, 10, 16, 17, March 23, 30,

April 3, 26, 27, 30, May 1, 10, 31, June 5, 21, 2012 Date of Judgment: July 3, 2012 [ 1 ] The defendants, Canadian National Railway Company and Rory Kennedy are jointly charged on Count #1 of Information 73045 as follows: On the 23 rd day of June 2009, at the public crossing at grade of the railway track, by Riverside Street, at the City of Abbotsford, in the Province of British Columbia, did unlawfully allow part of a movement, to wit: Train Q1014121, to stand on a part of the said public crossing at grade, for a period longer than five (5) minutes, when vehicular or pedestrian traffic required passage, in violation of

section 103(

d) of the Canadian Rail Operating Rules, and did thereby commit an offence contrary to section 41(2)(

d) of the Railway Safety Act. [ 2 ] The defendant, Canadian National Railway Company, stands charged alone on Count #2 of Information 73045 as follows: On the 13 th day of January, 2010, at the public crossing at grade of the railway track, by 96 th Avenue, in the Township of Langley, in the Province of British Columbia, did unlawfully allow part of a movement, to wit: Train M3025113, to stand on part of the said public crossing at grade, for a period longer than five (5) minutes, when vehicular or pedestrian traffic required passage, in violation of

section 103(

d) of the Canadian Rail Operating Rules, and did thereby commit an offence contrary to section 41(2)(

d) of the Railway Safety Act. [ 3 ] Ms. Barbara Wilson testified that on June 23, 2009 she was a teacher at Sandy Hill Elementary School. A field trip was arranged for the day and she was in charge of taking 57 grade 4 and 5 students on this field trip. The field trip involved biking from the Sandy Hill Elementary School in Abbotsford to a swimming pool in the Matsqui area of Abbotsford. Ms. Wilson described for the Court the route she and her students took including travelling on Riverside Street.

At approximately 10:30 am as they approached the public railway crossing on Riverside Street a freight train was stopped on the tracks blocking the crossing. Ms. Wilson said she and the students waited on the north side of the tracks while the train remained stationary on the tracks. Approximately an hour passed. She described a number of vehicles being stopped at the crossing unable to proceed because the train had the crossing blocked. Ms.

Wilson called the secretary at her school asking her secretary to contact the police to see if there was something happening on or near the tracks to account for why the train was stopped for such a long time. Ms. Wilson received a call back from her secretary advising that the police were looking into it. Ms. Wilson said the crossing signal was active, namely the arm or bar was down preventing vehicles, cyclists and pedestrians from crossing the tracks, lights were flashing and bells were ringing. Ms. Wilson was unable to see the end of the train from either direction.

At no time did she see any CN Rail employees. Another train approached the crossing on the second set of tracks and within minutes after that train cleared the crossing the stationary train blocking the crossing began moving and cleared the crossing. Ms. Wilson said it was approximately 11:45 a.m. when the train cleared the crossing. Not surprisingly, the delay in having to wait for the train to clear the crossing resulted in the student’s field trip being considerably inconvenienced. [ 4 ] Ms.

Wilson was shown a book containing 5 aerial photographs of the area where she and the students were biking and the railway crossing at Riverside Street. Ms. Wilson identified the aerial photos as accurately depicting the area. Ms. Wilson identified the park where they were cycling to by placing a #1 on photo #1. The aerial photos were marked as Exhibit #1 on the trial and will be referred to as and when required in my reasons. [ 5 ] Ms. Wilson was shown a second book containing 9 photos. Ms.

Wilson identified photo #9 as accurately depicting the Riverside Street railway crossing viewed from an eastward looking direction. Ms. Wilson identified photo #8 as accurately depicting the Riverside Street public railway crossing being viewed from a westward direction. She noted this photo as displaying the crossing signal. This book of photos was marked as Exhibit #2 on the trial and will be referred to as and when required in my reasons. [ 6 ] In cross-examination, Ms. Wilson agreed that once the train on the other set of tracks passed by the stationary train, the stationary train started moving very quickly.

Ms. Wilson agreed that she was contacted by a Mr. Ian Campbell, a Transport Canada investigator. The initial contact was by telephone in September or October of 2009 and there was follow up communication and correspondence via e-mail. [ 7 ] Ms. Wilson was referred to a number of e-mails which were collectively marked as Exhibit #3 on the trial. Ms. Wilson acknowledged having authored the e-mails which were addressed to Ian Campbell. These e-mails are self-explanatory and will be referred to as and when required in my reasons. Ms.

Wilson is uncertain as to what if any e-mails may have been exchanged between her and Mr. Campbell between September 24, 2009 and October 14, 2009, and she is uncertain as to what if any contact or communication she may have had with Mr. Campbell between October 14, 2009 and November 25, 2009. EVIDENCE ON THE VOIR DIRE [ 8 ] A voir dire was entered into at this stage of the trial as counsel for the defendants have made application seeking an order granting a stay of proceedings on the basis of abuse of process or in the alternative, exclusion of evidence that was obtained in breach of the defendants’

section 7 and/or

section 8 Charter Rights. [ 9 ] Brennan Barr testified on the voir dire that he has been employed by Canadian National Railway Company for 24 years. For the last 17 years he has worked as a locomotive engineer. In addition to his duties as a locomotive engineer, in 2009 and 2010 he was president of the Union. He has operated trains for many years on the Yale Subdivision which runs from Thornton Yard which is just underneath and to the west of the Port Mann Bridge to Boston Bar. Mr Barr is very familiar with the CN rail track in the Langley and Abbotsford area.

He described for the court the significance of “signals” which are devices located alongside the track at various locations and are the form of control that locomotive engineers are required to obey. Mr. Barr is very familiar with the location of these signals. These signals operate much the same as traffic control devices. The signals are controlled by a rail traffic controller (hereinafter referred to as RTC), who is situated at an office in Edmonton. [ 10 ] Mr. Barr was referred to Exhibit #1, the five aerial photos and confirmed the accuracy of the photos. In viewing photo #1 of Exhibit #1, Mr.

Barr located the CN railway tracks on the photo and noted that the red dot with the number 90.35 beside it is a mileage

marker and refers to the number of miles this marker is located measured westward from Boston Bar. Mr. Barr noted that this marker is located at the Glenmore Road railway crossing. He noted a similar red dot on photo #1 with the number 88.15 beside it and commented that this is another mileage marker and is located at the Riverside Street railway crossing. In Photo #2 of Exhibit #1, Mr. Barr identified the CN railway tracks as traversing across the photograph. Mr. Barr labelled with the number #1 on the photograph the location of a signal.

He commented that there is another signal which is not shown on the photo which is located at mile marker 84.1. In viewing photo #3 of Exhibit #1, Mr. Barr stated that the CN railway tracks depicted in this photo are double tracks. Mr.

Barr viewed described photo #4 of Exhibit #1 as depicting the township of Fort Langley and noted for the Court the CN rail track displayed in the photo running from mileage marker 103.60 where there is a public railway crossing and viewed from west to east to mileage marker 102.92 where there is another public railway crossing onto mileage marker to 102.85 where there is another public railway crossing. Mr. Barr said this

section of CN track is all double tracks. Mr. Barr viewed photo #5 of Exhibit #1 describing the photo as being a tract of land just to the East of Fort Langley and again noted for the Court the CN railway tracks including the mileage marker 101.8. Labelled on the map are the words “Rawlinson Sub” which Mr. Barr said refers to a subdivision of CN Railway tracks which run to Point Roberts. Mr. Barr labelled with the number #1 on photo #5 of Exhibit #1 the location of a clutch of signals and switches which he referred to as where the Hydro station is. [ 11 ] Mr.

Barr testified that at approximately 10:00 a.m. on June 23, 2009, he received a phone call on his cell phone from Al Campbell. Mr. Barr knows Al Campbell very well having worked with him for many years. Al Campbell is a locomotive engineer for CN Rail. Al Campbell was contacting Mr. Barr in Mr. Barr’s capacity as president of the union. Al Campbell explained to Mr. Barr that he was operating Train 101 and was at Mile 84 and was concerned that he was “short on time.” Mr. Barr explained to the Court that being “short on time” means nearing the end of one’s maximum allowable time for his work shift.

Al Campbell also stated to Mr. Barr that he was being compelled to take the train onto the double track and he was concerned about being able to comply with the rules pertaining to blocked crossings. Mr. Barr advised Al Campbell that he would attend and see what he could do to assist. Mr. Barr referred to photo #2 of Exhibit #1 and said he understood Al Campbell’s train to be located just to the right of 84.7. After the phone call, Mr. Barr drove from Langley to Matsqui. Mr. Barr described for the court driving at approximately 11:00 a.m. eastbound along Harris Road.

He referred to photo #1 of Exhibit #1 noting Harris Road and Glenmore Road. Mr. Barr could observe while driving eastbound on Harris Road that the public railway crossing at Glenmore Road was clear. Approximately 50 rail car lengths to the east of the Glenmore Road crossing Mr. Barr could see a CN Rail locomotive stopped with rail cars attached to it. Mr. Barr labelled with the number #2 and an arrow on photo #1 of Exhibit #1 the location of where the locomotive was stopped. Mr. Barr continued driving eastbound on Harris Road and observed that the public railway crossing at Gladwin Road was blocked by this train.

Mr. Barr did not see any vehicles or pedestrians stopped as a result of this train blocking the crossing at Gladwin Road. Mr. Barr continued travelling eastbound on Harris Road and was able to observe the rail cars attached to the locomotive as being stationary. Mr. Barr’s objective at this point was to find what he referred to as the “tail end of the train.” Mr. Barr turned left onto Riverside Street and travelled northbound towards the public railway crossing. Mr. Barr observed approximately a dozen vehicles backed up on the south side of the crossing. Mr.

Barr spoke to the driver of a city of Abbotsford vehicle and suggested that the driver may wish to consider an alternate route. Mr. Barr also spoke to other motorists who were stopped and offered them the same advice. Mr. Barr did not see any pedestrians. Mr. Barr observed the crossing arm was down and its lights and bells were operating. Mr. Barr made these observations at approximately 11:15 a.m. Mr. Barr drove to the crossing at Mile 87.26 from Bell Road and the crossing was clear. He then drove to the public railway crossing at Sorenson Road and observed that crossing to be blocked by the train. Mr.

Barr then drove to the north side of the crossing at Riverside Street and observed the crossing was blocked by the train and approximately 20 cars lined up and pedestrians including approximately 50 children with bicycles. Mr. Barr labelled with an arrow and the number #3 on photo #1 of Exhibit #1 where the “tail end” of the train was located. Mr. Barr said the train cleared the Riverside Street crossing at approximately 11:55 a.m. Mr. Barr drove back to his residence. He received a call from Al Campbell at approximately 12:05 to 12:10 p.m. and Al Campbell confirmed that he had been relieved. [ 12 ] Mr.

Barr was asked what the phrase “cut the train means.” Mr. Barr explained that this involves dividing the train up into two or more sections and is commonly done to avoid blocking crossings. Mr. Barr went onto explain the procedure involved in “cutting the train.” The time to complete the procedure of “cutting the train” varies depending on the circumstances. Mr. Barr identified the train blocking the crossing as #101 and further described it as a “container train” which is afforded higher priority in terms of travel time. [ 13 ] Mr.

Barr labelled photo #2 of Exhibit #1 with the number #1 in a circle as being the location of the Sumas Mountain signal and switches. Mr. Barr referred to photo #2 of Exhibit #1 and said to the east of mileage marker 84.7 is a signal at mileage 84.1. Mileage 84.1 is not shown on photo #2 of Exhibit #1. The signal is located on the right hand side of the tracks and is a single aspect signal which can display red, green or yellow in colour. Red means stop and proceed, green means proceed and yellow means be prepared to stop. The track at this location is single track. [ 14 ] Mr.

Barr believed he saw a train travelling on the other set of tracks pass the stationary train. [ 15 ] Mr. Barr was referred to photo #9 of Exhibit #2 and confirmed the photo as accurately depicting an eastward view of the public railway crossing at Riverside Street. [ 16 ] Mr. Barr viewed photo #8 of Exhibit #2 and confirmed the photo as accurately depicting a westward view of the public railway crossing at Riverside Street. He noted the railway crossing apparatus in this photo and said the bulbs and lights engage upon a train approaching the crossing when the train hits the bond wire located in the track. Mr.

Barr noted a signal mast in the photo with two lights. Mr. Barr viewed photo #1 of Exhibit #2 and identified the switch at Sumas Mountain displayed in the photo. Mr. Barr explained that the switch is electronically controlled from the rail traffic controller’s office, although it can be operated manually. Mr. Barr labelled photograph #1 of Exhibit #1with a circle inside of which he placed the number 1 to identify the location of the Sumas Mountain Switch. [ 17 ] Mr. Barr confirmed knowing Bob Lee as an individual he works with. Mr. Lee is a locomotive engineer and in 2009 Mr.

Lee was chairman of the Union. [ 18 ] In cross-examination Mr. Barr was referred to a document entitled “CN Best Practices Train Handling Guide Yale Subdivision.” Mr. Barr said he is very familiar with this document. This document was marked as Exhibit “A” on the voir dire. Mr.

Barr described for the Court his training to become a locomotive engineer. He explained the terms “throttle manipulation,” “dynamic brake,” “automatic brake,” as found on page 2 of Exhibit “A.” Mr. Barr explained what is meant by the term “independent brake” found on page 3 of Exhibit “A.” Mr. Barr explained what is meant by the term “cycle braking” found on page 4 of Exhibit “A.” Mr.

Barr said it is not a requirement that locomotive engineers carry a copy of “Exhibit “A” with them, but locomotive engineers are required to carry with them a book entitled “timetable referencing” and this book contains much of the information contained in Exhibit “A.” Mr. Barr agreed that the CN Railway and CP Railway share each other’s railway tracks. More specifically, eastbound rail traffic from Matsqui to Ashcroft will travel on CP Railway’s tracks and westbound rail traffic from Ashcroft to Matsqui will travel on CN Railway’s tracks. This is referred to as a “co- production agreement.” Mr.

Barr agreed that crossing the rail bridge over the Fraser River is sometimes delayed when the bridge is open to allow for boat traffic to pass through. The bridge is owned by CP Rail. Mr. Barr agreed that when the bridge is open, there would be communication between CP Rail RTCs and CN RTCs. Mr. Barr reviewed pages 7 through 15 of Exhibit “A” and confirmed the accuracy of the schematic diagrams as depicting the various sections of track from Boston Bar to Langley. The diagrams are labelled showing the location of mileage markers, signals, and public crossings. [ 19 ] Mr.

Barr agreed that it is his understanding that rule 103(

d) of the Canadian Rail Operating Rules does not apply to private railway crossings. [ 20 ] Mr. Barr was asked whether it is the conductor or locomotive engineer who is in charge of the train. Mr. Barr responded that the conductor is in charge of the train, the engineer is in charge of the locomotive. Mr. Barr was unable to comment on the number of cars using the Glenmore Road crossing on a daily basis. Mr. Barr agreed that the Riverside Street public crossing is the busiest public crossing in Matsqui. [ 21 ] Mr. Barr was unable to recall whether he spoke to Bob Lee on June 23, 2009.

Marked as Exhibit “B” on the voir dire was an affidavit of Jennifer Paulson sworn October 18, 2011. Mr. Barr was referred to page 250 of Exhibit “B” on the voir dire which is a page entitled “Summary of events – Brent R. Harradine.” Mr. Barr agreed he knows Brent Harradine and that Mr. Harradine is an employee of Transport Canada. After reading page 250 in Exhibit “B” on the voir dire Mr. Barr agreed that he would have talked to Bob Lee by cell phone on June 23, 2009. He was unsure as to whether he called Bob Lee or Bob Lee called him. Mr.

Barr agreed that he would have given Bob Lee the details of his observations and findings as to the events of June 23, 2009 and that he knew Bob Lee would inform Brent Harradine of those details [ 22 ] Mr. Barr disagreed with the suggestion that on June 23, 2009 the union was engaged in some kind of job action. His response was, “I’m not aware of any job action.” Mr. Barr denied the suggestion that he was coming to the assistance and support of Mr. Campbell in what amounted to job action to cause problems for the employer. Mr. Barr denied the suggestion that what happened on June 23, 2009 was orchestrated. Mr.

Barr agreed that the train Al Campbell was operating could have made it from mile 84.7 to Abrahamson, a distance of 6.3 miles, travelling at track speed in considerably less time than 40 minutes. When asked why Al Campbell’s train was unable to cover the aforementioned distance in a reasonable amount of time, Mr. Barr said that was a question Al Campbell could answer. [ 23 ] In re-examination, Mr. Barr said that the decision to cut a crossing is usually made by the conductor, but the RTC can have some input into this decision depending on the circumstances. Mr.

Barr said that numerous times he has parked trains on the single track at mileage 84.7, mileage 81.9, and mileage 79.5. He elaborated saying that no public crossings are blocked because there are no public crossings at these locations. [ 24 ] In response to my questions, Mr. Barr said he actually had a number of phone conversations with Al Campbell on June 23, 2009. There was the initial telephone conversation between the two of them at around 10:00 am and that was followed by a number of conversations while Mr.

Barr was driving to find the location of Al Campbell’s train. [ 25 ] The next witness called by the Crown on the voir dire was Mr. Glen Alan Campbell (hereinafter referred to as Al Campbell). He testified that he is a retired locomotive engineer and was employed as such by CN Rail from 1980 to August 1, 2010. On June 22, 2009, he was in Kamloops. He was called for work duties at 2040 hours to operate a train leaving Kamloops at 2240 hours. Al Campbell was to operate the train from Kamloops to Roberts Bank.

The train number was “Q101421.” He thinks there were 3 locomotives and attached to the locomotives were rail cars carrying ship containers. The total length of the train was 10,700 feet. The conductor working with Al Campbell was Rod Meers. Al Campbell has made this trip from Kamloops to Roberts Bank many times and the average travel time is approximately 10 hours. Al Campbell explained that he is required to work a 12 hour shift and his shift commences when the train is scheduled to leave. Accordingly, Al Campbell was scheduled to work from 2240 hours on June 22 nd to 1040 hours on June 23, 2010.

Al Campbell said his train departed on time. He described for the court the interior of the locomotive saying that he is seated on the right hand side and the conductor is seated on the opposite side. In front of him are two computer screens and a speedometer and to his left is a control stand. There is a radio with an accompanying handset. The radio is constantly on and tuned to Channel 1. He is able to communicate with the RTC via the radio or alternatively by cell phone. The computers have clocks on them which are set to Eastern Time. In addition he has a watch and a cell phone which displays the time.

During the course of this trip, he recalled communicating with the RTC many times, both via the radio and via cell phone. Al Campbell said he became increasingly concerned during the trip that he was not going to have a sufficient time to reach his destination within the allotted 12 hour work shift. He said his train was experiencing numerous delays and there was communication between him and a female RTC suggesting that he and Mr. Meers may be relieved by another train crew at Boston Bar. The delays included track maintenance workers and train volume.

Approximately 3 hours prior to the expiration of his 12 hour shift, Al Campbell made a courtesy call to the RTC advising of “his time being up in 3 hours.” The anticipated crew change did not take place at Boston Bar. After leaving Boston Bar, Al Campbell’s train experienced further volume delays. Between “Floods” and mileage 84.1, Al Campbell received radio communication from a female RTC that his train would be waiting for 2 trains at Abrahamson, one of which was a passenger train.

Al Campbell again expressed concern that he was nearing the end of his 12 hour shift and suggested that a good place to “tie his train down” would be at mileage 84.1 and a relief crew could attend at this location known as Dyke Road. Al Campbell was concerned that proceeding west of Sumas Mountain would involve cutting crossings and there would not be sufficient time to do that. The female RTC advised she was relieving “Don” another RTC and would discuss with him what should be done.

Don thought it was a good idea to “tie the train down” at mileage 84.1 but said he would have to check with the “chief” to see what should be done. The chief refers to the chief RTC. After speaking to the chief, Don advised Al Campbell that the chief wanted Al Campbell to pull his train down to Abrahamson clear of the Sumas

Mountain switch. Al Campbell via cell phone called the chief and expressed his concern about having to pull his train down to Abrahamson. Al Campbell spoke again to RTC “Don” and tried to convince “Don” that the appropriate decision would be to stop the train at mileage 84.7. “Don” asked if Al Campbell minded if the “chief” sat in on the conversation and Al Campbell said that would be ok. Al Campbell spoke to the chief and the chief told Al Campbell to pull the train up until the tail end of the train was clear of Sumas Mountain.

Al Campbell asked the chief how the chief expected him to do that given he was reaching the end of his 12 hour shift and the chief’s response was “I don’t want to go there.” Al Campbell moved his train from mileage 84.7 onto the double track, occupying the south track and proceeded westward until the tail end of his train cleared the Sumas Mountain signal. The head end of Al Campbell’s train was approximately 30 rail car lengths east of the Glenmore Road public crossing.

According to Al Campbell a rail car length averages 100 feet and his train would have been approximately 3000 feet east of the Glenmore Road public crossing. Al Campbell confirmed with RTC “Don” that the tail end of his train was clear of the signal at Sumas Mountain. Al Campbell’s train was stopped at 10:40 am on June 23, 2009.

When asked if there was a reason why he didn’t move closer to the Glenmore Road crossing, Al Campbell replied “because time was up.” Al Campbell was asked, “Did you comply with the RTC’s request?” Al Campbell responded “Yes I did.” Adding “He had a gun to my head; I didn’t want to do it.” [ 26 ] Al Campbell stated that he had stopped at the Dyke Road crossing many times in the past and described it as an excellent location to stop and park “long” trains without blocking any public railway crossings. [ 27 ] After stopping his train, Al Campbell remained in the cab of his locomotive along with conductor Rod Meers for the better part of an hour waiting for a relief crew.

While in the cab of the locomotive, the locomotive engine is running and the throttle is in the idle position. Al Campbell said he knew his train was blocking at least three public railway crossings and knew one of those crossings was at Riverside Street. At no time did Al Campbell advise any member of the public that his train was blocking public railway crossings. At no time did he meet with any train master. A train master is someone whom Al Campbell described as being his supervisor.

After 50 minutes to an hour after having stopped his train, a westbound train on the north set of tracks pulled alongside Al Campbell’s train and locomotive engineer Richard Comparelli and conductor Robert Nedokis got off this train and onto Al Campbell’s train. Mr. Comparelli and Mr. Nedokis were the “relief” crew. Al Campbell is familiar with both Mr. Comparelli and Mr. Nedokis as work acquaintances. After exchanging what Al Campbell referred to as “our orders,” Mr. Comparelli and Mr.

Nedokis took care and control of Al Campbell’s train and pulled the train up to the Glenmore Road public crossing where Al Campbell and Rod Meers disembarked the train and waited for a taxi to pick them up. Al Campbell described himself as being physically tired at this time. [ 28 ] Al Campbell recalled having telephoned Brennan Barr while he was travelling westbound from the Dyke Road crossing. The purpose of calling Mr. Barr was to speak to Mr. Barr in his capacity as union president and advise Mr. Barr of what was taking place. More specifically, he told Mr.

Barr that he was being told by the chief RTC to pull his train up clear of the Sumas Mountain signal and that he was running short on time. Al Campbell said he was very concerned about what was going on and he did not want to do or say anything that might jeopardize his employment. Mr. Barr told Al Campbell to do what was being requested and that Mr. Barr would get back to him. Mr. Barr told Al Campbell to make sure he was making notes. Al Campbell believes he only spoke to Mr. Barr on one occasion. I pause at this point to note that Mr.

Barr testified that he and Al Campbell had a number of conversations on the morning of June 23, 2009. [ 29 ] Al Campbell said he might have talked to Bob Lee, the chairman of the union, later on in the day of June 23, 2009 and it would have been via e-mail. [ 30 ] Al Campbell viewed photo #2 of Exhibit #1 and said that “Dyke Road” is at the red dot labelled “Sumas Mountain 84.7.” He labelled with a red marker using the #2 and an arrow as designating mileage 84.1 on photo #2 of Exhibit #1.

The road to Cox Pitt is Dyke Road. [ 31 ] Al Campbell listened to an audio CD of a number of recordings of conversations that took place on the morning of June 23, 2009 between the RTC office in Edmonton and Conductor Rod Meers and between the RTC office in Edmonton and himself. Al Campbell was provided with a transcript corresponding to these recorded conversations and while listening to the recordings he referred to the transcript. Each recorded conversation has a number beside the conversation which is the time the conversation took place.

The speakers in the conversation are identified by the letter “C” which refers to the origin of the speaker as being the RTC office in Edmonton and “T” which refers to the origin of the speaker as being the train crew of Al Campbell’s train. Al Campbell said that the recorded conversations do not contain all of the conversations that took place on June 23, 2009 between himself and the RTC. He says that he also communicated with the RTC by way of his cell phone as he did not want to embarrass anyone because of what was a difficult situation. Mr.

Meers was also using his cell phone to contact the RTC. [ 32 ] With respect to recorded conversation at 0959:27, Al Campbell identified the female voice identified by the letter “C” in the transcript as being the RTC in Edmonton and the male voice identified by the letter “T” in the transcript as being Conductor Rod Meers. [ 33 ] With respect to recorded conversation at 0959:46, Al Campbell identified the female voice identified by the letter “C” in the transcript as being the RTC in Edmonton and the male voice identified by the letter “T” in the transcript as being Conductor Rod Meers. [ 34 ] With respect to recorded conversation at 1005:25, Al Campbell identified the male voice identified by the letter “C” in the transcript as being RTC “Don” in Edmonton and the male voice identified by the letter “T” in the transcript as being Conductor Rod Meers.

At line 21 of the transcript it reads “That’s not the same chief that had 3 :(colon) 55 we leave there at Rosedale is it?” Al Campbell said the transcript is in error and the correct reading should be “355 relieved” as opposed to “3:55 we leave.” The transcript was amended accordingly. Al Campbell said that the reference to chief in the conversation is to the chief RTC. At lines 6 and 7 on page 2 of the transcript, RTC Don says “Okay.

Well, I guess I might as well take down that light, okay, take down the light at Sumas.” Al Campbell says that he believes at this point in time he had pulled his train up past the crossing at mileage 84.7 and RTC Don is going to change the Signal at Sumas shown as #1 on photo #2 of Exhibit #1. Al Campbell was asked about the comment at lines 24 and 25 on page 1 of the transcript which reads “You can tell him (indiscernible) what happened here.

It’s kind of like being at Yuk Yuk’s here without the ten dollar cover charge here.” Al Campbell said this is Conductor Meers referring to the situation as being somewhat of a comedy of errors. Al Campbell said the name “Hunter” which is heard in the conversation and appears at line 4 on page 2 of the transcript refers to Hunter Harrison who was the CEO of CN Rail at the time.

[ 35 ] With respect to the recorded conversation at 1012:22, Al Campbell identified the male voice identified by the letter “C” in the transcript as being RTC “Don” in Edmonton and the male voice identified by the letter “T” in the transcript as being Conductor Rod Meers.

Channel 2 which is heard in the conversation is the channel that allows for communication between train crews and the RTC. [ 36 ] With respect to the recorded conversation at 1013:10, Al Campbell identified the male voice identified by the letter “C” in the transcript as being RTC “Don” in Edmonton and the male voice identified by the letter “T” as being conductor Rod Meers.

In the conversation, RTC “Don” says at lines 23 and 24 on page 2 of the transcript “Okay, lights up at Sumas there on the south track.” Al Campbell was asked what does the phrase “lights up” mean and responded saying that the RTC is changing the signal to a less restrictive signal than “stop.” Al Campbell said this conversation took place when his train was at Dyke Road. [ 37 ] With respect to the recorded conversation at 1023:44, Al Campbell identified the male voice identified by the letter “C” in the transcript as being RTC “Don” in Edmonton and the male voice identified by the letter “T” as being himself.

This conversation took place when the train is moving westward from mileage 84.7 to Sumas Mountain. At line 25 on page 3 of the transcript are the words “chain view.” Al Campbell says this should be corrected to read “Cheam view” and the transcript was amended accordingly.

During the conversation, Al Campbell tells RTC “Don” at line 21 on page 3 of the transcript “This is eating up big time here.” Al Campbell explained that what he is referring to is that “time” is passing and he’s concerned about the 12 hour shift clock expiring. [ 38 ] With respect to the recorded conversation at 1028:10, Al Campbell testified that the male voice identified by the letter “C” in the transcript is a person he understood to be the chief RTC in Edmonton, and the male voice identified by the letter “T” as himself.

This conversation is happening just as Al Campbell’s train is leaving mileage 84.7. [ 39 ] Marked as Exhibit “C” on the voir dire was the CD containing the audio recordings of conversations at various times between the RTC office in Edmonton and the crew of Train 101, namely conductor Rod Meers and engineer Al Campbell. These conversations took place on the morning of June 23, 2009.

Marked as Exhibit “D” on the voir dire was a transcript of the aforementioned conversations as amended by Al Campbell during his testimony on the voir dire. [ 40 ] Al Campbell said at one point in time via cell phone he contacted Thornton Yard in an effort to speak to a train master and was told that all the train masters were in meetings and no one knew what was going on. [ 41 ] Al Campbell explained for the Court the process of slowing down and stopping a train that is 10,700 feet in length. [ 42 ] Al Campbell stated emphatically that he did as he was asked and stopped his train clear of Sumas Mountain switch.

He added, “I was traumatized by what was being ordered.” He was asked whether he received any radio communication from RTC about blocked crossings or blocking the diamond and responded saying he never had any communication from anyone. [ 43 ] Al Campbell said he was not disciplined with respect to any actions he took or didn’t take on June 23, 2009. [ 44 ] At the outset of cross-examination of Al Campbell the following Exhibits were marked on the voir dire: [ 45 ] Exhibit “E” e-mails from Al Campbell to Bob Lee on June 24, 2009 and notes made by Al Campbell. [ 46 ] Exhibit “F” transcript with handwritten notes of Al Campbell of Transport Canada interview of Al Campbell by Ian Campbell and Susan Born August 12, 2009. [ 47 ] Exhibit “G” transcript of recorded conversations with handwritten notes of Al Campbell (same as Exhibit “D” except contains Al Campbell’s written notes). [ 48 ] Exhibit “H” single page schematic diagram with the words 70.0 “Hot Box” at top of page. [ 49 ] Al Campbell confirmed that the handwritten notes on Exhibit “E’ are his handwriting.

The notes were made at various times. He does not recall speaking directly to Bob Lee. He did not have any help drafting the e-mails to Bob Lee. [ 50 ] Al Campbell did not ask Brennan Barr to come out to the location of his train nor did he know that Brennan Barr had come out to the location of his train. He said he could not remember if he spoke to Mr. Barr one or two or three times. He said “I believe there was a second call.” He believes he spoke to Mr. Barr during the taxi ride back to Thornton Yard.

I pause at this point to note that this testimony is inconsistent with his direct examination wherein he said he only spoke once to Mr. Barr. He said that Mr.

Barr was the only one from the union he talked to on June 23, 2009. [ 51 ] Al Campbell confirmed that he is the author of the handwritten notes on Exhibit “G.” [ 52 ] Al Campbell disagreed with the suggestion that he was told to pull his train down to the Abrahamson crossing and added “I was told to pull the train down clear of Sumas Mountain.” [ 53 ] At the continuation of the voir dire on January 9, 2012, counsel for Canadian National Railway filed an affidavit sworn by Jennifer Paulson on January 7, 2012.

This affidavit was marked as Exhibit “I” on the voir dire. [ 54 ] Al Campbell was referred to Exhibit “I” on the voir and agreed that page 9 of the affidavit is an e-mail authored by him to Crown counsel, Mr. Cliffe. After reviewing the phone records for his cell phone for June 23, 2009, which records are found at page 10 of Exhibit “I” on the voir dire, Al Campbell agreed that between 10:18 am and 11:36 pm on June 23, 2009 he talked to Brennan Barr on five occasions.

I pause at this point to note this is in contrast to his previous testimony where in direct examination he said he spoke to Brennan Barr on one occasion and early on in cross-examination he said he could not remember if he spoke to Mr. Barr on one, two or three occasions. It was suggested to Al Campbell that Brennan Barr gave him some counselling on how to deal with the Company. Al Campbell responded “he, meaning Brennan Barr, told me to do what I was told.” Al Campbell disagreed with the suggestion that he had a grievance that day because another crew had been relieved at Arnold.

Al Campbell disagreed with the suggestion that Rod Meers was

being disrespectful to the chief and that Rod Meers had a strong grievance about the way things were being done. When asked why he involved the union, Al Campbell responded, “Because they were putting me in this precarious position of having all the crossings blocked.” [ 55 ] Al Campbell was referred to a document which defence counsel called the “Bach-Simpson” extended log. The “Bach- Simpson” extended log (hereinafter referred to as the “download”) was marked as Exhibit “J” for identification on the voir dire.

The download shows data about the travel of a specific locomotive such as time, throttle position, speed, and distance on a specific date. The locomotive in this particular download is locomotive number 5720 and the date of travel is June 23, 2009. More specifically, it is a download of the travel of the locomotive Al Campbell was operating on June 23, 2009. Al Campbell said he had never seen a document or record of this nature and as such he was unfamiliar with the data contained in the download. Al Campbell agreed that he is able to speed up the train from 1 mph to 19 mph in approximately three minutes.

He agreed that at certain times he was slowing the train down. He adamantly disagreed with the suggestion that he was slowing the train down to create problems for his employer. [ 56 ] It was pointed out to Al Campbell that his cellular phone records show outgoing calls to Bob Lee and incoming calls from Bob Lee. Al Campbell said he did not recall talking directly to Bob Lee. [ 57 ] Al Campbell agreed that once past the signal at Sumas Mountain he would be in a position to increase the speed of the train to get to Abrahamson.

He further agreed that if the train was travelling at a speed of ten miles per hour, he could stop the train within 45 seconds. He elaborated saying stopping the train depends on a number of factors including the grade, the length of the train, and the weather. [ 58 ] Al Campbell was asked, “You weren’t being instructed to block Riverside crossing?” Al Campbell responded, “Yes, I was.” [ 59 ] Al Campbell was referred to Exhibit “E” on the voir dire and agreed that on June 24, 2009 he sent an e-mail to Bob Lee.

He said the reason for sending the e-mail was so that no engineer would be put in the position he was in on that day. He was unaware there would be a prosecution. After reviewing his cellular telephone records, he was unable to recall having placed a phone call to Bob Lee’s residence on July 7, 2009. He was unable to recall placing telephone calls to Transport Canada on July 7, 2009. [ 60 ] Al Campbell described conductor Rod Meers as being a bit of a challenge to work with saying Rod Meers was easily excitable. He agreed that on the June 23, 2009 trip, Mr.

Meers was excited. [ 61 ] Al Campbell was cross-examined at length about whether he could have moved his train closer to Glenmore crossing resulting in his train being clear of the Riverside crossing. He was referred to Exhibit #1 and agreed that Riverside crossing is shown at mileage 88.1 and Glenmore crossing is at mileage 90.35. He agreed that the difference in distance between the two crossings is 2.20 miles. Accordingly, given his train was 2 miles in length, it would have been able to fit between the two crossings. Very reluctantly, he conceded that theoretically that would be the result.

He agreed that Riverside crossing is the busiest. He was asked “If you had actually gone to Abrahamson, neither Sorenson nor Riverside would have been blocked?” He responded, “Probably not.” [ 62 ] It was suggested to Al Campbell that the crossing at Gladwin road is a private crossing and that the operating rules regarding blocking a public crossing have no application to blocking this crossing.

Al Campbell disagreed with this suggestion and stated that while the operating rules may not apply there are Greater Vancouver Terminal rules which apply and this crossing is not to be blocked. [ 63 ] Al Campbell was asked, “If you had pulled up to Glenmore just shy of the bonds, people would have been able to cross.” Al Campbell responded. “I would think so.” He was next asked “If you would have stopped at this point you would have been clear of the Riverside crossing.” He responded, “I don’t know.” [ 64 ] Al Campbell was cross-examined at length with respect to the contents of the download.

He was asked where his train was at 10:26:21 am on June 23, 2009. He replied that he wasn’t sure and then said he was close to the switch at Sumas Mountain. [ 65 ] Al Campbell agreed with the download entry showing the train’s throttle being in position 5 at 10:26:21 am. He agreed that the throttle remained in position 5 through until 10:27:36 am as shown in the log. He agreed that the speed of the train increased from 11 miles per hour to 17 miles per hour during this time period. He agreed that the download shows that at 10:27:46 am the throttle position being decreased.

He agreed with the suggestion that between 10:27:46 am to 10:29:52 am he moved the throttle position from 4 to 1 and that is what the log entries show. He agreed with the suggestion that at 10:33:59 am he moved the throttle position to zero and that is what the download entry shows. He was asked, “All you were doing was trying to get your tail end clear of Sumas Mountain?” He responded, “Yes.” [ 66 ] Al Campbell agreed that at 10:37:08 am he put the train brakes on.

He was asked whether he put the engine brakes on at 10:37:26 as the download indicates and responded saying “apparently so, I don’t recall that.” Al Campbell agreed to gradually slowing the train down from 10:31 am to 10:37 am. He agreed that somewhere around Sumas Mountain switch he had the throttle position up to five or six. He disagreed with the suggestion that at approximately 10:27 am he spoke to the chief and the chief was prepared to take responsibility for blocking any crossings. He said this conversation took place while his train was stopped at mileage 84 at the Dyke Road crossing.

He later said the conversation took place between mileage 82.5 and 84.8. [ 67 ] Al Campbell was asked to review his cell phone records again. The cell phone records are found at pages 29 to 31 of Exhibit “I” on the voir dire. It was pointed out to Al Campbell that the cell phone records indicate that on June 23, 2009 and July 7, 2009 that calls are being made to or being received from Bob Lee and Brennan Barr. Al Campbell said there are no other records of phone calls to Bob Lee or Brennan Barr.

With respect to a phone call to him at 8:17 am on July 7, 2009 from Brennan Barr, Al Campbell recalled that Brennan Barr was asking him if the company had approached him with respect to disciplining him for what happened on June 23, 2009. [ 68 ] Al Campbell was referred to page 210 of Exhibit “B” on the voir dire and confirmed that he authored the e-mail dated June 24, 2009 9:48 am addressed to Bob Lee. He disagreed with the suggestion that the first time he spoke to the chief was at 10:27 am on June 23, 2009 saying that he spoke to the chief at 10:10 am on that date.

[ 69 ] Al Campbell agreed that he told the prosecutor, Mr. Cliffe that he communicated with the RTC with his cell phone. He was then asked, “You didn’t make any calls to RTC on your cell phone? He responded, “No.” [ 70 ] Al Campbell had no knowledge of conductor Rod Meers trying to contact an individual by the name of Kirk Carroll. [ 71 ] Al Campbell was referred to page 212 of Exhibit “B” on the voir dire and agreed that this is an e-mail from him to Bob Lee dated June 24, 2009 at 10:55 am. He was uncertain if this e-mail was disclosed by him to Mr.

Cliffe in September 2011. [ 72 ] Al Campbell was referred to page 210 of Exhibit “B” on the voir dire and asked to compare the e-mail sent by him to Bob Lee to the e-mail sent by Bob Lee to an undisclosed recipient found at page 212 of Exhibit “B” on the voir dire. More specifically, he was asked to account for the difference in his e-mail where he says that at 10:10 am at mile 84 he talked to the RTC while in Bob Lee’s e- mail it refers to the train being at mile 84.3. Al Campbell was unable to account for the different mileages referred to.

He was also unable to account for the difference between his e-mail where he says at 10:27 am he called the RTC and the e-mail of Bob Lee which says “the crew” called the RTC at 10:26 am. Al Campbell said he never supplied Bob Lee with any different information than that contained in his e-mail of June 24, 2009.

Al Campbell could not recall if he supplied Bob Lee with the information contained on page 213 of Exhibit “B” on the voir dire which reads, “The crew managed to pull up to and stop short of Glenmore Road (mileage 90.35) precisely at their twelfth hour.” Al Campbell said he did not supply Bob Lee with the information contained on page 213 of Exhibit “B” on the voir dire which reads, “At this point the 10,792 foot train was sitting on the following three crossings: central Fraser Valley Road at mileage 89.27, Sorenson Street at mileage 88.66, and Riverside Road (Mission Hwy) at mileage 88.15.” Al Campbell does not know where Bob Lee obtained this information from and agreed that it appears as if someone obtained more specific information. [ 73 ] Rod Meers testified that he hired on with CN in 1981.

He worked as a conductor for 32 years retiring on July 18, 2009. He described his job as a conductor including his being responsible for the safe travel of the train. Part of his job duties includes “cutting crossings.” The RTC in Edmonton provides instructions and directions for the travel of the train. The cab of the locomotive is equipped with radio equipment to allow for communication with the RTC. In addition, personal cell phones are commonly used to communicate with the RTC. Mr. Meers testified that he used his personal cell phone routinely to communicate with the RTC.

His cell phone provider is through an American Company called Verizon. His knowledge of his cell phone plan is that if he is not charged for the cell phone call it will not show up on his cell phone records. [ 74 ] Mr. Meers testified that he is very familiar with the CN mainline track between Thornton Yard and Kamloops having averaged 14 trips per month along this track for many years. On June 22, 2009 he was ordered to work at 2240 hours in Kamloops and assigned as the conductor to work on CN Train 101. He described Train 101 as a container train destined for Roberts Bank.

His scheduled shift was a legal maximum of 12 hours and accordingly he was to be off duty at 1040 hours on June 23, 2009. The locomotive engineer on Train 101 was Al Campbell. [ 75 ] As Train 101 approached Hope, Mr. Meers became very concerned that he would not make the intended destination of Roberts Bank within the allowable 12 hour work shift. He explained that it takes 3 hours to get from Hope to Roberts Bank and he only had 2 hours and 20 minutes left in his 12 hour shift.

He further explained that the trip was taking longer than anticipated because of the volume of rail traffic resulting in slower travel time. He stated that “his train” was not responsible for the delays. There was difficulty contacting the RTC to advise the RTC of his concern. He testified that between Hope and Mile 84 he used his personal cell phone to try and contact the chief RTC. He made four unsuccessful attempts to contact the chief RTC leaving voice messages expressing his concern that time was running short and the train would not be able to make Roberts Bank within the allowable time on their shift.

He included in his message a request that someone return his call. Mr. Meers said he tried phoning Network Operations on two occasions to speak to the supervisor of the chief RTC. He left a message on his first call and on his second call he said he identified himself and the line went dead. [ 76 ] At mile 84, the train was stopped as there was a “clear to stop signal” at Sumas Mountain. Stopping at this location was required so as not to block any crossings. RTC came on the radio and advised Mr. Meers that they would be meeting two eastbound trains at Matsqui. [ 77 ] Mr.

Meers was referred photo #2 of Exhibit #1. He confirmed that the photo accurately depicts the CN mainline. He explained that mile 84 is just east of mile 84.7 and that the “clear to stop” signal is located just to the east mile 84.7. The crossing located at mile 84.7 is a private crossing known as Dyke Road crossing. The switch at Sumas Mountain is located at the circled number one on the photo. In order to see the signal at Sumas Mountain Mr. Meers said the train would have to be pulled up approximately 1800 meters east of the Sumas Mountain switch. [ 78 ] Mr.

Meers testified that while waiting at mile 84, the train was not blocking any crossings. His concern was that if the train proceeded westbound crossings would be blocked. He said that it was standard procedure for trains to remain stopped at mile 84 so that no crossings are blocked. He stated that RTC was aware of this standard procedure. Stopping trains at mile 84 can and does result in trains being backed up along this stretch of track. [ 79 ] Mr.

Meers and Al Campbell were instructed via radio by the chief RTC to move the train westbound clear of the Sumas Mountain switch. [ 80 ] Exhibit “C” on the voir dire was played for Mr. Meers and he was provided with Exhibit “D” on the voir dire which is a transcript and confirmed the accuracy of both the audio recording and corresponding transcript. He reviewed the exchange between Al Campbell and the chief RTC. He said he did not recognize the voice of the chief RTC. From Mr.

Meer’s point of view it was clear that the chief RTC was directing he and Al Campbell to make sure their train was clear of the switch at Sumas Mountain. Mr. Meers offered his opinion that the real concern was with respect to Train 111 which was behind Train 101. He referred to this train as the “money train” and “their baby” and that the Company focuses its attention on keeping Train 111 moving at all costs. [ 81 ] Mr.

Meers said that as a result of moving Train 101 westbound to clear the Sumas Mountain switch that when the train was stopped it was blocking four crossings (Gladwin Road, Sorensen Street, Riverside Street and Bell Road). The head end of the train came to a stop just east of Glenmore Road. Mr. Meers said it would take a really good employee approximately an hour and 45 minutes to cut

the four crossings. No steps were taken to secure the train as the instructions were that a relief crew would be attending soon to take control of the train. [ 82 ] Mr. Meers repeatedly expressed his concern about the crossings being blocked and the risk that it poses for the public. He described for the Court a previous experience he had where he took it upon himself to cut a crossing without being instructed to do so and was severely chastised by the company for doing so. [ 83 ] Mr. Meers said that he knows Kirk Carroll as being an individual who is in charge of Network Operations in Edmonton.

He has never met or spoken to Kirk Carroll. On June 23, 2009 when he called the Network Operations office in Edmonton he does not know who answered the phone. [ 84 ] While Train 101 was stopped, Mr. Meers did not speak to any member of the public. He was asked “why he didn’t speak to any members of the public.” and responded, “Because they get pretty irate when you block a crossing.” Mr. Meers said it was 10:50 am according to his time when Train 101 stopped. He was asked how he felt physically at the time the train stopped and he answered, “Tired.” [ 85 ] After Train 101 stopped, Mr.

Meers got off the train and walked up to meet the taxi at Glenmore Road. He said the walk was 15 to 20 minutes and the taxi arrived a few minutes later. Al Campbell got a ride with the relief crew. [ 86 ] Mr. Meers labelled with the #5 on photo #1 of Exhibit #1 the place where the head end of Train 101 stopped. He was asked why Train 101 was not pulled down closer to Glenmore Road and responded, “I was under the understanding that when we cleared the switch as Sumas Mountain we were to stop.” [ 87 ] Mr.

Meers said he was not disciplined by CN for not pulling Train 101 up closer to Glenmore Road nor was he disciplined for any of his conduct on June 23, 2009. [ 88 ] Mr. Meers was referred to Exhibits “C” and “D” on the voir dire, and confirmed that the transcript marked as Exhibit “D” accurately sets out the conversation he had with RTC “Don.” He said the comment or remark he made contained at line 20 on page “2” of the transcript marked as Exhibit “D” on the voir dire was a sarcastic remark. [ 89 ] Mr. Meers testified that Train 101 had been standing at least 45 minutes to an hour when he left in the taxi.

During that time, he never saw any train masters. [ 90 ] In cross-examination Mr. Meers was asked whether he would be surprised if the “download” shows Train 101 moving at mile 84 as opposed to being stopped. Mr. Meers responded, “The download isn’t always right.” Mr. Meers said he thinks they were stopped at mile 84 for 15 to 20 minutes. [ 91 ] Mr. Meers disagreed with the suggestion that the normal thing to do would be to apply the dynamic brakes on the train so as to bring the train to a stop at Abrahamson.

He said he had never seen an engineer or conductor use the dynamic brakes on a train past Hope. [ 92 ] Mr. Meers was referred to Exhibit “J” for identification, the download. He was specifically referred to the entry at 10:21:39 am which shows the dynamic brakes being applied through until 10:23:51 am. He was specifically referred to the entry at 9:47:54 am which shows the dynamic brake being applied through until 9:52 am. Mr. Meers was asked, “So the dynamic brake was being operated?” Mr. Meers responded, “According to the download.” [ 93 ] Mr.

Meers disagreed with the suggestion that the instructions from the RTC were to go to Abrahamson. Mr. Meers was adamant that the instructions were to clear the switch at Sumas Mountain. Mr. Meers was referred to page 210 of Exhibit “B” on the voir dire which is an e-mail from Al Campbell to Bob Lee dated June 24, 2009. In the aforementioned e-mail, Al Campbell writes at 10:10 “With Chief standing beside Don we were told to pull train to Abrahamson and cut crossings...” Mr. Meers disagreed that this is what they were being told to do. [ 94 ] Mr.

Meers said he has looked at the consist for Train 101 which shows the length of the train being 10,740 feet. He said when he left Kamloops on Train 101, in his journal he showed the length of Train 101 as being 14,780 feet. He said that if they had pulled Train 101 to Abrahamson they would not have been able to cut any crossings. Mr. Meers said he was aware that the maximum allowable length of trains travelling west from Edmonton is 12000 feet, but said “that’s not what happens.” [ 95 ] Mr.

Meers was asked why he did not tell RTC that it was or would be an impossible task to cut the crossings required to be cut within the time remaining on his 12 hour shift. Mr. Meers responded, “He knows how long it takes to cut a crossing.” [ 96 ] Mr. Meers was referred to Line 19 on page 4 of Exhibit “D,” and agreed that this is the first mention by the chief RTC of getting the tail end of the train clear at Sumas Mountain. Mr. Meers said he can’t really recall having conversations with RTC or the chief RTC after mile 84. [ 97 ] Mr.

Meers disagreed with the suggestion that Train 101 could have been parked between Glenmore Road and Riverside Street without blocking the Riverside Street crossing. He said that the train was too long to do this and that the train was stopped at the most practical place to stop. [ 98 ] Mr. Meers disagreed with the suggestion that the chief RTC did not say to him that he would take full responsibility for blocking crossings and for working over 12 hours. [ 99 ] Mr.

Meers was asked why he didn’t work a further minute to move the train closer to the Glenmore Road crossing and responded, “Because time is up.” He added that it would have taken considerably longer than a minute to move the train closer to Glenmore Road.

[ 100 ] Mr. Meers said he has no knowledge of it being one of the functions of the union to report violations of the “no blocking crossings for in excess of five minutes” rule and “working in excess of 12 hours” rule. [ 101 ] Mr. Meers was referred to the cellular phone records of Brennan Barr which showed a total of 5 phone calls being made between 10:48 am and 11:56 am either as originating with Al Campbell to Brennan Barr or being received by Al Campbell from Brennan Barr. Mr. Meers said he had no knowledge of these calls between Al Campbell and Brennan Barr.

Marked as Exhibit “K” on the voir dire were the cell phone records of Brennan Barr. [ 102 ] Mr. Meers disagreed with the suggestion that it was Al Campbell’s intention to block the Riverside Street public crossing. He disagreed with the suggestion that it was Al Campbell’s intention to make things as difficult as possible for CN. [ 103 ] Pages 102, 103, 104 and 105 were added to Exhibit “J” for identification. [ 104 ] Mr. Meers agreed that Train 101 stopped at 10:40 am. He agreed that it stopped approximately .42 miles back from Glenmore Road which is the equivalent of 2218 feet.

He said he would be guessing to say how long it would have taken for Engineer Al Campbell to position Train 101 .42 miles west of where Train 101 was stopped. [ 105 ] Mr. Meers was referred to photo #1 of Exhibit #1 and to Exhibit “A” on the voir dire. He agreed that the distance shown between Riverside Street and Glenmore Road on these two Exhibits is 2.2 miles or 11,616 feet. He was referred to Exhibit #4 for identification which is the AEI consist of Train 101. The AEI consist shows the length of Train 101 as being 10,574 feet 9 inches.

He was asked whether he had any reason to believe that this figure of 10,574 feet 9 inches was inaccurate and responded, “I thought we were over 14000 feet.” He was asked whether it was possible that he mixed up the tonnage of the train with the length of the train. He responded, “No.” [ 106 ] Mr. Meers was asked if his train was between 10,574 feet and 10,792 feet in length would his train have fit between Glenmore Road and Riverside Street crossing. Mr. Meers responded that he could not say for sure. Mr.

Meers was asked where he left his journal in which he recorded the length of his train and he said he left it on the unit for the relief crew. [ 107 ] Mr. Meers was referred to Exhibit “J” for identification(the download) and the entry on page 92 at 0959:02 am showing the throttle position at 6 and the speed at 19 miles per hour and the entry at 0959:59 showing throttle position at 4 and the speed at 21 miles per hour. Mr. Meers was asked whether he recalled travelling at 21 miles per hour at approximately 10 am and responded, “No.” [ 108 ] Mr.

Meers was referred to page 94 of the download and asked to scan down the speed column and was asked if he recalled slowing down between 10:06:33 am and 10:15:11 am from 15 miles per hour to 2 miles per hour. Mr. Meers said he recalled slowing down at the hot box detector and getting off the train to relieve himself. He said they were stopped at the hot box detector for 15 minutes, or maybe 10 minutes. Mr. Meers was asked whether the download is inaccurate as compared to his evidence as to the speed of his train and he replied, “Yes.” [ 109 ] Mr.

Meers was referred to page 40 of Exhibit “I” on the voir dire which is the phone records for Mr. Meer’s cell phone. Mr. Meers agreed that the cell phone records show a total of seven calls either being made from his cell phone or received on his cell phone between 8:20 am and 1:26 pm on June 23, 2009. Mr. Meers had no recollection of who he may have called in New Westminster or who he may have called in Toronto. Mr. Meers agreed that his cell phone records do not show any calls having been made to Edmonton on June 23, 2009. Mr.

Meers said that because his cell phone provider is an American company, not all phone calls made in Canada show up on his account. [ 110 ] Mr. Meers was referred to page 23 of Exhibit “B” on the voir dire which is an e-mail from Mr. Meers to Ian Campbell dated September 2, 2009. Mr. Meers agreed that no where in his e-mail does he make mention of his having tried to contact Network Operations. [ 111 ] Mr. Meers agreed that his estimate of his train is that it went from mile 87.25 at Bell Road to mile 90, making it about 2 and ¾ miles long.

He said approximately 15 cars totalling approximately 600 feet were eastbound of the Bell Road crossing. [ 112 ] Mr. Meers agreed that he did not see any members of the public near the head end of the train. It was suggested to Mr. Meers that where Train 101 was stopped was not a practical place to stop with respect to being picked up by a taxi. Mr. Meers responded saying it didn’t matter to him if he had to walk to meet the taxi. Mr. Meers agreed that it is his responsibility to cut the crossings and not the responsibility of the chief RTC. [ 113 ] In re-examination, Mr.

Meers was referred to his personal notes that he made of his trip aboard Train 101 on June 23, 2009. In his personal notes there is a reference to his having made a call to Network Operations. Mr. Meers was referred to photo #1 of Exhibit #1 and he identified a road running parallel to the CN track just west of Glenmore with a red line and the number “6” in “red.” [ 114 ] Bernie Schieber testified that he started working for CN Rail in 1978.

He began work as a trainman, two years later he became a conductor and three years later he became a locomotive engineer and has worked almost exclusively as an engineer for the last 15 years. He described his duties as a locomotive engineer as basically driving the train. [ 115 ] Between the fall of 2009 and the fall of 2010 he was working the extended run from Kamloops to Vancouver and return. He would make on average two runs per week.

He would travel the stretch of rail between Thornton Yard and Abrahamson on average four times per week. [ 116 ] Marked as Exhibit “L’ on the voir dire was a diagram prepared by Mr. Schieber showing the CN rail track from Mile 112 to Mile 86. Mr. Schieber said that Thornton Yard is not shown on his diagram, but is at mile 114. On his diagram VIT refers to Vancouver Intermodal Terminal. His diagram indicates CN double track from mile 112 to Glenn Valley at mile 94.5 where it becomes single track and at Abrahamson which is Mile 90.9 it becomes double track again.

At mile 110.7 is a station known as Hampton which is a power switch and signal where RTC can switch trains from the north to the south track and vice versa. Travelling eastbound there are public

crossings at 96 th Avenue, Glover Road and Church Street. All of these public crossings are in the township of Langley, British Columbia. There is a station called Hydro at mile 101.7 and at this station there is a southbound

section of track known as the Rawlinson Sub which runs to Roberts Bank. Between the Hampton station and the Hydro station signals are located approximately every 2 miles. These signals are all one aspect signals with the exception of the approach signal to the Hydro station located at mile 103.4 which is a two aspect signal. The Matsqui junction is at Mile 87.9 and this is known as the “diamond.” [ 117 ] Mr. Schieber said he is familiar with mile 84 and described it as a place where a lot of trains will stop so as to avoid blocking crossings. [ 118 ] Mr. Schieber was referred to photo number 4 of Exhibit #1.

He confirmed the accuracy of this photo depicting the CN track from mile 104 to mile 101. He identified the CN double track mainline on the Yale Sub, the public crossings at grade at 96th Avenue, Glover Road and Church Street. [ 119 ] Mr. Schieber was referred to photo #5 of Exhibit #1 and confirmed the accuracy of this photo as depicting the CN track from mile 101 to mile 102.5. He identified the CN double track mainline running parallel to River Road through the township of Langley. He identified the #1 as shown on the photo as being the switch where the Rawlinson Sub connects with the CN mainline.

He said there is a signal which is visible to an eastbound train travelling on the north track. [ 120 ] On January 13, 2010, Mr. Schieber was ordered for 1100 hours to be on duty at 1045 hours. He was scheduled to work a 12 hour shift. He was assigned to be the locomotive engineer on Train 302 which he described as a “mixed train.” I understand the term “mixed train” to mean the train consists of a number of different types of rail cars. Mr. Schieber said Train 302 was 7629 feet long. Conductor Lee Humphrey was working with him. Train 302 was to run eastbound from Thornton Yard to Kamloops. [ 121 ] Mr.

Schieber described for the Court getting permission from the RTC to leave Hampton station at mile 110.7 on the north track. He started to pull, which means throttling up and increasing the speed of the train. He testified that he would have got the train up to a speed of 50 miles per hour between mile 106 and mile 107 and it would have taken 4 or 5 minutes to reach this speed. At mile 104 he started to slow the train down as he was approaching a “clear to stop” signal at mile 103.4. Mile 103.4 is just east of the 96 th Avenue public crossing.

A “clear to stop” signal means that the train must be prepared to stop at the next signal which is the signal at the Hydro station, mile 101.7. Mr. Schieber said there was no discussion between he and the RTC with respect to the “clear to stop signal” at mile 103.4. Mr. Schieber started to slow Train 302 down which involved him “throttling down” and setting the air brakes. While passing over the crossing at 96 th Avenue he blew the whistle on the train, he rang the bell while passing over the crossing at Glover Road and blew the whistle on the train while passing over the crossing at Church Street.

He saw the signal at the Hydro station which was a stop signal. Up to this point in time neither he nor conductor Humphrey had spoken to RTC. Mr. Schieber stopped the head end of Train 302 approximately 20 to 25 rail car lengths west of the station at Hydro. This is a distance of approximately 1200 feet. Mr. Schieber explained that he stopped at this distance from Hydro station because he was concerned that if crossings had to be cut he would have room to pull his train up. Mr. Schieber referred to Exhibit “L” on the voir dire and identified the position of Train 302 on the diagram. Mr.

Schieber said he assumed because of the length of his train he was clear of the public crossing at 96 th Avenue. Mr. Schieber was referred to photo #5 of Exhibit #1 and marked the photo with the number 2 as being where the head end of Train 302 came to a stop. Mr. Schieber said he had no idea as to the reason why his train was being stopped at Hydro station. He said he was surprised to see the “clear to stop signal” when he was at mile 104. Once his train was stopped, Mr. Schieber radioed RTC, but there was no response for approximately 10 minutes. [ 122 ] RTC contacted Mr.

Schieber and told him that his train would be waiting at Hydro station for approximately 20 minutes for a westbound train which was coming up to the station at Abrahamson. In addition, he was told that there was a train which had been dropped on the north track at Glen Valley. Mr. Schieber explained the term “dropped” as meaning that the train has been parked and there is no train crew aboard the train. He said that it was unusual to “drop” a train on the mainline. Mr. Schieber identified the dropped train as being Train 102 as shown on Exhibit “L” on the voir dire. Prior to stopping his train, Mr.

Schieber had heard radio communication originating from westbound Train 731 and he assumed this was the train the RTC was telling him that he would be waiting for. On Exhibit “L” on the voir dire, Mr. Schieber has shown the time to cover the distance from just east of mile 102 to just east of mile 88 as being approximately 20 to 25 minutes. The time of 20 to 25 minutes is what Mr. Schieber was expecting in terms of Train 731’s travel time to Hydro station. [ 123 ] Mr.

Schieber testified that approximately two minutes after stopping his train, conductor Humphrey got off the train and was walking back to cut the crossing at Glover Road. Mr. Schieber said that when crossings are blocked and RTC is not answering you have to do something. Mr. Schieber was unaware at this time that his train was blocking the public crossing at 96th Avenue. After speaking to RTC, Mr. Schieber radioed conductor Humphrey and told him that he would have to cut the crossing at Glover Road. [ 124 ] While stopped, Mr. Schieber was contacted via radio by a male who identified himself as a CN employee.

This male told Mr. Schieber that Train 302 was blocking the crossing at 96 th Avenue by about six cars. He was asked by the male if he, meaning Mr. Schieber could pull his train up 6 cars to clear the crossing at 96 th Avenue and Mr. Schieber after making sure conductor Humphrey was clear of the train, pulled Train 302 up approximately 6 rail car lengths to clear the 96 th Avenue crossing. Conductor Humphrey then cut the crossing at Glover Road.

Because the Glover Road crossing and the Church Street crossing are within a tenth of a mile of each other cutting the Glover street crossing allows the train to be pulled up sufficiently to clear both the Glover Road crossing and the Church Street crossing. Mr. Schieber said that Train 302 was standing on the 96 th Avenue crossing, the Glover Road crossing and the Church Street crossing for approximately 15 minutes. [ 125 ] Train 731 arrived at Hydro Station approximately 30 to 35 minutes after Mr. Schieber having been told by RTC that he would be waiting for this westbound train. Mr.

Schieber said Train 731 was a loaded coal train. Mr. Schieber was asked why Train 731 was given priority over his Train 302 and Mr. Schieber responded that he did not know for sure but added that it is common practice on the railroad to keep trains moving where the crew is running short on time and accordingly he thinks the crew on Train 731 was running short on time.

[ 126 ] Mr. Schieber said he was never disciplined or chastised for his actions on January 13, 2010. To his knowledge, Mr. Schieber said that conductor Humphrey was not disciplined or chastised for his actions on January 13, 2010. [ 127 ] Mr. Schieber was asked if this situation of having blocked the three public crossings in Langley on January 13, 2010 could have been prevented. Mr. Schieber responded that it could have been prevented had RTC advised him at Hampton station that he would be waiting for a westbound train at Hydro Station. With this information, Mr.

Schieber said he could and would have delayed his departure from Hampton station and could and would have travelled at a slower speed from Hampton station timing his arrival at Hydro Station to meet the westbound train as opposed to waiting for the westbound train to arrive and in turn having to cut crossings. Mr. Schieber said that since this incident he has noticed changes in that RTC is giving train crews much more information in advance as to what to expect in terms of potential delays. [ 128 ] In cross-examination, Mr.

Schieber agreed that if he had a train that was 10700 feet in length and the distance between two public crossings was 11,600 feet he would be able to fit his train between the two public crossings without blocking the crossings. [ 129 ] Mr. Schieber was referred to and asked to review a transcript of a recording of a conversation that took place between Mr. Schieber and the RTC on January 13, 2010 at 1313 hours. Mr. Schieber did not recall the conversation including being told by RTC, “can’t get you across the bridge; they got a block on the north end of the bridge. Coal empties are waiting on the Page sub.

Over.” Mr. Schieber was asked whether the transcript revived his memory and he responded, “It kind of reminds me of the congestion that was out there that day. There was definitely congestion.” Mr. Schieber did not know what the block on the north end of the bridge was on that day. This transcript was marked as Exhibit “M” on the voir dire. [ 130 ] Mr. Schieber was referred to page 15 of Exhibit “A” on the voir dire and agreed that between the left side of the page and Hydro station there is no where you can park a 7629 foot train without cutting a crossing.

He further agreed that between the station at Hydro and Glenn Valley it would be difficult to fit in a 7629 foot train without having to cut any crossings. Mr. Schieber agreed that from Glen Valley and Abrahamson is a stretch of single track and that is the only area between Hampton and Abrahamson that has no crossings. [ 131 ] Mr. Schieber was referred to page 14 of Exhibit “A” on the voir dire. He agreed that if Train 731 which was 6728 feet long was stopped at Matsqui Junction at mile 87.9 it would have blocked several crossings.

He further agreed that it would have taken longer for Train 731 to cut crossings than it would for his train to cut the crossing at Glover Road. [ 132 ] Mr. Schieber agreed that given the length of his train, 7629 feet, had he proceeded past Hydro station and gone up to the stop signal at the Page station at mileage 89.8 the tail end of his train would have been hanging out more than one tenth of a mile on the single track west of Abrahamson. He further agreed that this would have blocked all eastbound and westbound traffic on the CN mainline including Train 731. [ 133 ] Mr.

Schieber said it was possible that he was given a “pass stop” to go over the Mission bridge. Mr. Schieber said a “pass stop” is written permission to proceed past a stop signal. Mr. Schieber could not remember how long the overall delay was on January 13, 2010. He agreed that every locomotive is equipped with a washroom. [ 134 ] In re-examination, Mr. Schieber was referred to page 111 of Exhibit “B” on the voir dire. Mr. Schieber said that the conversation in the transcript is a conversation that he had with RTC on January 13, 2010 at 1319 hours.

He agreed that during this conversation there is no mention of any block on the Mission bridge or coal empties being a problem. [ 135 ] It was agreed by counsel that the testimony of Robert Nedokis would be heard in the trial proper. He testified that he has been employed by CN as a conductor for 32 years. He knows both Al Campbell and Rod Meers. He has worked with them over the years as fellow employees. [ 136 ] On June 23, 2009, Mr. Nedokis was working as a conductor on CP Train 805. The locomotive engineer working with Mr. Nedokis was Richard Comparelli. A RTC instructed Mr. Nedokis and Mr.

Comparelli that they were to “yard” CP train 805 in the siding at Arnold. Once that was done, they were going to be taxied to relieve the train crew on Train 101. A short time later, Mr. Nedokis and Mr. Comparelli were advised by RTC that instead of being taxied to Train 101 they would be picked up by Train 111 and taken to Train 101. [ 137 ] Mr. Nedokis and Mr. Comparelli were picked up at the west end of the siding at Arnold by Train 111. They travelled with the crew of Train 111 westward to Sumas Mountain. At Sumas Mountain, Mr.

Nedokis observed Train 101 parked on the south main track between Sumas Mountain and Glenmore Road. Train 111 proceeded westbound on the north main track running parallel to Train 101. Mr. Nedokis noticed the tail end of Train 101 was east of the Riverside Street crossing and the head end of Train 101 was just east of Glenmore Road. The public railway crossing at Riverside Street was blocked by Train 101. There were approximately 10 to 15 rail cars of Train 101 which were east of the Riverside Street crossing. [ 138 ] Mr.

Nedokis observed a lot of commotion on the south side of the Riverside Street public railway crossing. He saw cyclists, trucks, cars and tractors lined up at the crossing for as far as he could see. Mr. Nedokis instructed the conductor of Train 111 to close the windows in the cab of the locomotive to eliminate the risk of anything being thrown into the cab by those members of the public being blocked at the Riverside Street crossing. Mr. Nedokis said it is not uncommon for people who are being blocked at railway crossings to throw things at the train. Mr.

Nedokis did not see any CN train masters at any time. [ 139 ] Once the head of Train 111 reached the head end of Train 101, Train 111 stopped and Mr. Nedokis and Mr. Comparelli got off of Train 111 and boarded the locomotive of Train 101. Train 111 departed. Mr. Nedokis and Mr. Comparelli went through the required procedures before moving Train 101. [ 140 ] Mr. Nedokis explained that mile 84.1 is a very common place to “stage” west bound rail traffic because there are no issues regarding blocking crossings.

In contrast, once a train proceeds past this mileage and has to stop, blocking crossings becomes a major concern.

[ 141 ] In cross-examination, Mr. Nedokis was shown a document entitled AEI Consist Cars Report dated June 23, 2009. This document was marked Exhibit #4 for identification on the trial proper. Mr. Nedokis said he has no familiarity with this document. He agreed that the length of Train 101 shown as 10,574 feet 9 inches on this document sounds possible in terms of the length of Train 101. [ 142 ] Mr. Nedokis was referred to an e-mail at page 213 of Exhibit “B” on the voir dire authored by Bob Lee in whic

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