Continued from Part 4 – The Question of Justification
When a fire occurs certain options are open to investigating and law enforcement bodies in the Province. Under Section 8 of The Fire Prevention Act [link is to the RSN 1990 version of the Act] an investigation must be carried out by local or special assistants to the Fire Commissioner where property has been destroyed or damaged by fire. That investigation is made "for the purpose of ascertaining whether the fire was the result of negligence, carelessness, accident or design". That, presumably, was the form of investigation which was begun promptly after the fire in Elizabeth Towers took place. An investigation can lead to the filing of a formal complaint under the Criminal Code, and to a prosecution for arson. That was what did happen in this case.
Two other methods of enquiry are available for the investigation of the cause of a fire. One method is in accordance with Section 126 of The Summary Jurisdiction Act, as amended by The Summary Jurisdiction (Amendment) Act, 1971.[See note below] Subsections (1), (2) and (4) read:
(1) Subject to this section, whenever any property is damaged or destroyed by fire, the magistrate exercising jurisdiction in the district where the fire occurred or any other magistrate or any justice designated by the Minister of Justice may conduct an enquiry to ascertain the cause or origin of the fire, and shall conduct such enquiry if directed to do so by the Director of Public Prosecutions.
(2) A magistrate or justice conducting an enquiry under this section has and may exercise all of the powers conferred on a Commissioner by Section 3 of The Public Enquiries Act.
(4) Every magistrate or justice conducting an enquiry under this section shall, as soon as practicable after the completing of the enquiry, send a report to the Attorney General stating in particular his opinion as to the cause of the fire and whether it appears to have been of incendiary origin and shall forward with the report all of the evidence taken by him at the enquiry.
The other method available is under Section 22 of The Fire Prevention Act. Subsections (1), (2), (3) and (7) read:
(1) Subject to the approval of the Minister, the Fire Commissioner, or any other person designated by the Minister, may hold an enquiry into the cause, origin, extent and circumstances of any fire, and the approval of the. Minister required by this subsection may be given generally in respect of all fires occurring in a prescribed area or particularly in respect of a specified fire.
(2) For the purposes of an enquiry under this section, the Fire Commissioner or person directed to hold the enquiry may with the approval of the Minister employ such legal, technical, scientific, clerical or other assistance as he may deem necessary.
(3) When holding an enquiry under this section, the Fire Commissioner or the person directed to hold the enquiry shall have all of the powers conferred on a Commissioner by Section 3 of The Public Enquiries Act.
(7) Every person who holds an enquiry under this section shall, ,as soon as practicable after the completion of the enquiry, send a report to the Attorney General stating in particular his opinion as to the cause of the fire and whether it appears to have been of incendiary origin and shall forward with the report all of the evidence taken by him at the enquiry.
In considering the procedure followed in the investigation of the Elizabeth Towers fire we must do so in the light of evidence available at the time, not from the vantage point of the hindsight which this Enquiry has. As the police investigation proceeded it appeared that the fire had been deliberately set, that is, that the offence of arson had been committed. Under those circumstances, the procedure followed was a quite proper one^ for it would likely lead to the laying of charges under the Criminal Code of Canada and, ultimately, to a trial. Quite understandably, it would appear at that time that any other form of enquiry would not be necessary. Indeed, while an enquiry could have been carried on, it would have been of doubtful propriety, for it could have been prejudicial to a fair trial, particularly if an accused elected trial by jury. It is a matter of record that a charge was brought against Dr. Farrell, that he elected trial by judge and jury and that at the conclusion of a preliminary enquiry the charge was dismissed. There is now no reason why an enquiry should not be held under The Summary Jurisdiction Act or under The Fire Prevention Act. An enquiry under either of those Acts could be more comprehensive than the preliminary enquiry because evidence which could not be called at the preliminary enquiry could be called at an enquiry under The Summary Jurisdiction Act or The Fire Prevention Act.
I therefore recommend that the Honourable the Minister of Justice take such initiative as may be open to him to cause an enquiry to be held under either The Summary Jurisdiction Act or The Fire Prevention Act.
Dated at Corner Brook in the Province of Newfoundland the 16th day of August, 1979
P. LLOYD SOPER, D.C.J.
NOTE: The Summary Jurisdiction Act was replaced in 1979 by the Summary Proceedings Act.
Section 22 of the Summary Proceedings Act states:
22. Where property is damaged or destroyed by fire, a judge may hold an inquiry to ascertain the cause or origin of the fire, and shall hold that inquiry on direction of the Director of Public Prosecutions.
Section 25 confers on a judge in such an inquiry the powers of a commissioner under the Public Inquiries Act. This continues the powers under the section of the former Act cited by Soper. Likewise section 30 details the report to be made to the Attorney general at the conclusion of an inquiry.