Police mistakes, defence manoeuvres halt fatal explosion criminal probe, court docs reveal

For a year, Ottawa police mistakes and defence team tactics have brought the criminal investigation into an explosion that killed six people in 2022 to a grinding halt, court documents recently made reportable show.

Two and a half years after the blast, the Ottawa Police Service and lawyers for Eastway Tank, Pump and Meter owner Neil Greene blame each other for the delayed investigation into whether criminal negligence causing death and bodily harm may have occurred.

The documents shed light on what prompted the criminal probe in the first place, a year after the explosion, and just days before the Ministry of Labour laid regulatory charges against Greene and Eastway.

And they contain a police officer's allegation that Greene appeared to be trying to conceal boxes of paper records when officers executed search warrants last summer.

Police acknowledge they made mistakes in documents they submitted to convince judges to grant their initial warrants against Greene, officer affidavits state.

Greene's lawyers argue those mistakes resulted in a breach of Greene's Charter rights when police seized 26 boxes full of physical documents from an office.

But the defence team isn't just trying to quash that specific seizure. It's also trying to quash police production orders for insurance documents and the Ministry of Labour's investigative report, as well as all the other seizures, court filings show.

His lawyers say the report and insurance filings formed the basis of the criminal investigation, and that obtaining them was essentially a "fishing expedition" for grounds that a crime may have occurred.

They want everything seized to date returned to Greene.

Police court filings say the move by Greene's counsel is frivolous and wasting more time in an already delayed and important investigation. Greene's lawyers, meanwhile, say a police application to dismiss the defence bid to quash everything has no merit.

'Now he's stalling'

Louise Martel, partner of Rick Bastien who died in the explosion, said she thinks Greene is holding up the investigation.

"If you don't have anything to hide, you're going to give everything. And at the beginning that's what he said — I'm going to co-operate with the police. I'm going to give all what they need — and now he's stalling," she said earlier this month.

"It's not going to bring them back, but it's going to give us peace, knowing that justice was done. And it's not. It's not been done."

Greene has not been charged with any crime. He and Eastway pleaded guilty in April to regulatory provincial offences for failing to ensure that diesel used for testing trucks wasn't contaminated with gasoline or other flammable liquids. Eastway also pleaded guilty for failing to adequately inform, instruct and supervise workers about safe fuel storage and handling to protect them from contaminated diesel.

Police say they need to examine everything they've seized to determine whether the separate criminal investigation into possible criminal negligence should continue or stop.

Whether they'll be able to is up in the air.

CBC News argued successfully in Superior Court last week to report on the contents of affidavits filed by police in 2023 — also known as informations to obtain, or ITOs — which officers wrote to convince judges to order multiple search warrants in the case. CBC reported on the existence of the warrants earlier this month.

Conference call with ministry prompted investigation

Ottawa police say they did not have grounds to believe a crime may have occurred until after the Ministry of Labour's year-long investigation into the Jan. 13, 2022, explosion. The arson unit had earlier determined the explosion and fire hadn't been deliberately set, and then the ministry took the lead, a police affidavit states.

Things changed on Dec. 22, 2022, when the ministry, the police arson unit and the Office of the Fire Marshal hopped onto a video conference call, according to an affidavit by Det. Carissa Johnston, the lead investigator assigned to the case.

The ministry said it would be laying provincial charges against Greene and Eastway.

Arson unit officers were concerned by what the ministry had to say. Specific statements made by the ministry during the call were redacted in Johnston's affidavit, but a staff sergeant emailed an inspector to say a criminal investigation may be warranted.

On Jan. 3, 2023, police determined the west district criminal investigations unit would handle the case, with Det.-Sgt. Michael Cathcart as case manager.

The ministry's regulatory provincial charges against Greene and Eastway came three days later.

From around then into July 2023, police did about 30 interviews with current and former Eastway employees, and prepared documents for production orders and search warrants, Cathcart wrote in an affidavit.

The day of the seizure

An office space in Kanata North that Greene had been using after the explosion was searched the morning of July 26, 2023, a Wednesday, according to a partially redacted September 2023 ITO by Cathcart, the police case manager.

He was one of the officers present for the search that day, and his observations and allegations are contained in his ITO asking for a subsequent search.

Greene told police he was "very pressed for time" because he had to take a family member to an important medical appointment, Cathcart wrote.

Cathcart asked Greene to tell him where a computer storage device containing business data could be found.

Greene was reluctant, so Cathcart called Greene's lawyer, who told Greene to comply. Then they moved to another part of the office.

"As I walked into this space, I noted the odour of gas/diesel in the air, something that would seem normal by the pumps at a gas station, but not in an office environment," Cathcart wrote.

Greene pointed out the device Cathcart was looking for.

'Strange' behaviour

But something seemed off to Cathcart.

In this part of the office Greene was lingering and making small talk, "which I found strange, as earlier he had seemed adamant about leaving" for the appointment, Cathcart wrote.

Greene also stood and walked in a way that Cathcart thought was blocking his view of the rest of the space.

"I formed the belief that Greene was intentionally, albeit subtly, trying to prevent me from looking beyond the area where we were standing. It was this area where the odour of gas/diesel seemed to originate," Cathcart alleged.

The sergeant rounded a corner to take a look. He found an area full of boxes and bins containing physical documents, where the smell of fuel was strongest.

There were also full metal filing cabinet drawers with black soot and debris on their fronts. And there was no cabinet with missing drawers in the office to match them.

Some of the documents appeared to have water damage and warping, as though they had been exposed to the elements, Cathcart wrote.

In a note in parentheses, he added that nearly 50 centimetres of snow had fallen in Ottawa on Jan. 17, 2022.

Three days later, on Jan. 20, 2022, the Ministry of Labour released the explosion site on Merivale Road back to Eastway's care and control, and Eastway's insurance underwriter took photos of the site, according to an affidavit for an ITO filed by Johnston.

The photos showed filing cabinets along a wall with five drawers missing, a tall black empty server tower, files, and bins on desks — as well as parts of the explosion-damaged office covered in snow from the Jan. 17 storm.

Investigators believe the physical documents they found in the Kanata North office came from damaged Eastway offices on Merivale, Cathcart's affidavit states.

Some of the cardboard boxes didn't seem like they'd hold up, so police assembled unused boxes that they found in the office to use instead, Cathcart wrote.

A number of devices and 26 boxes of files and paperwork were seized from the office, to be examined by police on their turf. Everything was taken to a cage in a property room at the police station in Kanata for storage, and the next day, July 27, 2023, Johnston began a rough inventory.

But later that same day, she was asked to stop.

The boxes of documents were loaded into a locked cage, "hidden from view," and the devices were secured in the computer forensics unit at police headquarters on Elgin, Cathcart wrote.

The mistakes

As Johnston was beginning the inventory, the Crown attorney's office relayed a message to police from Greene's lawyers: that police had seized information protected by solicitor-client privilege. 

The rule keeps private communications between lawyers and their clients.

The same day, it was "brought to my attention" that investigators made mistakes with their warrants, Cathcart wrote. "Documents" had not been included in the list of items to be searched (though it appeared in another appendix), among other issues.

"The result is that the contents of the twenty-six boxes were seized unlawfully, under the mistaken belief they were listed in the items to be seized: outside of the scope of the search warrants," Cathcart wrote.

He told Johnston to stop everything while they waited for legal advice.

'Serious implications'

A breach of section 8 of the Charter, which protects people in Canada from unreasonable search and seizure, is a big deal, Cathcart wrote. It can result in evidence being deemed inadmissible for trial, "which can have serious implications in a prosecution."

But Cathcart believes police had authority to seize the boxes of documents, regardless of their "honest error."

A section of the Criminal Code titled "seizure of things not specified" states that anyone executing a warrant can take anything they believe, on reasonable grounds, has been obtained by crime, used in a crime, or contains evidence of a crime.

Police were lawfully at the office for the search, the documents "were plainly visible within the
premises," and investigators believe the documents "will afford evidence of the offences being investigated," he added.

Cathcart's September warrant and ITO asked permission for investigators to re-seize everything they took from Greene in July under the old warrants, and to expand the date range of their search by more than five years: from June 2015 to March 2022 (it had earlier been January 2021 to March 2022).

"A fulsome, thorough, and exhaustive investigation … must be carried out. The loss of 6 lives demands nothing less," Cathcart wrote.

'It just boggles the mind'

Negotiations have been ongoing since last fall between Greene's lawyers and police about seized material protected by solicitor-client privilege.

Contracts over how to weed protected material out — to be paid for by police — were drawn up last year. Some of the work was carried out as of early May, according to police filings, but investigators still weren't given anything to examine.

Then, in mid May, Greene's defence applied to have the warrants and production orders quashed, and everything seized returned.

In mid June the digital evidence was handed over to police, Greene's lawyer Kirstin Macrae said. How long police will be able to keep it is an open question. As for the physical documents, negotiations have broken down and a judge will have to decide how that proceeds.

Later this week, police and Eastway are set to argue whether Greene's bid to quash the warrants and production orders should be dismissed or not.

Both sides can't comment further because the matter is before the court.

Sean McKenny, president of the Ottawa and District Labour Council, said the delayed criminal investigation is frustrating.

"For sure, the families have got to be impacted and affected. They want to be able to close this as best they can," McKenny said earlier this month. "And by having this continually go on in respect to the investigation, it just boggles the mind. It really does."