RCMP probe of fatal Come By Chance refinery blast slowed by legal issue

The Mounties haven't been able to examine potential evidence seized a year ago in their probe of a fatal explosion at the Come By Chance refinery in eastern Newfoundland because of a tangly legal dispute.

That's according to provincial court filings obtained by CBC News.

"There is currently a claim of solicitor-client privilege attached to many of the exhibits seized and this matter is making its way through the courts," RCMP Cpl. Steven Hatch wrote in a Nov. 17 affidavit.

"Due to the solicitor-client privilege claim, many of the items seized have not been reviewed or analyzed at this time, once a decision on this claim is reached investigators will require time to review the exhibits and forward some exhibits for further analysis."

Hatch's affidavit was filed at provincial court to get a judge's permission for police to hold onto items seized via search warrants last year. A hearing on that application is scheduled for next week.

The provincial court filings do not provide details about the nature of the items taken by police.

Nowthe solicitor-client privilege issue referenced by Hatch is going before a Newfoundland and Labrador Supreme Court judge, to determine whether those seized items should be off-limits to investigators.

The details of that Supreme Court proceeding are covered by a sweeping publication ban.

Last week, Justice Valerie Marshall granted a Crown request to restrict public access, with a hearing to be held behind closed doors.

1 died after explosion, 7 seriously injured

A flash fire on Sept. 2, 2022, resulted in the death of one worker at the Braya Renewable Fuels refinery in Come By Chanceand serious injuries to seven others.

Shawn Peddle, 47, of Clarenville died in hospital six weeks after the blast.

The Mounties began an investigation in January 2023 into possible charges of criminal negligence causing death and criminal negligence causing bodily harm.

• Mounties launched criminal negligence probe months after fatal Come By Chance refinery blast

Several weeks later, in early March, the RCMP executed search warrants at the refinery.

But according to the RCMP affidavit filed at provincial court last fall, the search at the Braya operation in Come By Chance was not the first time warrants were executedor evidence seized.

Provincial occupational health and safety investigators seized "a number of exhibits from Braya during their initial investigation," court filings note.

On Jan. 25, 2023, after the Mounties decided to launch a criminal investigation, they got a search warrant and took custody of 63 exhibits from OHS in St. John's.

Another five exhibits were seized during the RCMP search of the refinery site in early March.

Claim 'will likely impede the speed of the investigation,' RCMP says

In an email to CBC News on Thursday afternoon, Cpl. Hatch said the solicitor-client privilege claim has been asserted on "much of the evidence" seized by the RCMP.

"The investigative team has taken steps to safeguard this evidence until this claim makes it way through the court and a determination is made," Hatch wrote.

"Although this determination is expected to be a lengthy process and will likely impede the speed of the investigation, investigators remain committed."

Braya Renewable Fuels issued a statement to CBC News when asked about the ongoing privilege issue.

"We are appreciative of the Crown's efforts to date concerning important procedural matters related to the investigation," spokesperson Karen White wrote.

"As this matter is before the courts, we are not able to speak further on this matter."

Application to unseal search warrants

There is yet another court proceeding still not concluded that relates to police searches in the wake of the fatal flash fire.

Days after the Mounties descended on the Come By Chance refinery last March, CBC News filed an application to have those search warrant documents unsealed.

That resulted in the release of heavily redacted records last summer.

Arguments continued at provincial court up to the end of the year over whether more information could be made public.

• RCMP fears evidence will be destroyed, witness jobs imperiled, if fatal refinery probe info revealed

In court filings, RCMP Const. Branton Langley described the refinery probe as an "extremely complex investigation."

The Crown said it remained in its early stagesand further disclosure would mean a "serious risk that evidence will be destroyed, witnesses influenced, and investigative avenues jeopardized."

In a Nov. 30 hearing, Crown lawyer Dana Sullivan told the court that investigators were still trying to gather information for experts in the oil and gas industry to analyze, noting that the subject matter is "really not in our knowledge wheelhouse." She said those experts had not yet been retained.

CBC News, meanwhile, argued the Crown had not satisfied the legal test required to keep the information secret.

In his decision, Chief Judge Robin Fowler mostly sided with the Crown and RCMP, ruling that the bulk of the sealed information would remain under wraps.

"I'm concerned that at this point no expert has been retained to help direct the investigation. However, my role at this juncture is not to critique an ongoing investigation," Fowler noted in his ruling on Dec. 14.

"I do not agree with the Crown that this is the early stages of the investigationbut instead am satisfied that this is an ongoing investigation. And based on the material provided, I'm not certain of the amount of time it will take to conclude. I'm satisfied on the balance of probabilities that there is a risk to the public interest of compromising an ongoing investigation."

However, Fowler rejected the Crown's arguments that the privacy of victims or witnesses would be breached if their names were released. The judge said the court had not been informed that any specific victim requested that their identity be protected.

He imposed a publication ban on their names an order CBC had agreed to abide by in its submissions.

"This will allow CBC to ask these individuals directly for an interview and then individuals can choose if they want to interact with the reporter," Fowler noted.

Those revised search warrant documents with the unredacted names have not yet been provided to CBC News.

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