Annex A - Terms of Reference & Conduct of the Investigation

A.1 Terms of Reference

The Terms of Reference (ToRs) for this independent internal investigation were conveyed on 4 April 2008, with a subsequent clarification delivered on 14 April. The ToRs required an independent and unbiased assessment and review of the circumstances leading to and following the capsizing of L’ACADIEN II. The key areas for determination and assessment in the ToRs were:

• the sequence of events that led to and followed the occurrence;
• how the incident occurred, why the incident occurred;
• whether there was compliance with: Canadian Coast Guard (CCG) policies, procedures and work practices including the CCG Towing Policy; general practices for non-Search and Rescue (SAR) assistance to vessels; the common practices of good seamanship; and regulatory and industry standards; and
• any other matters related to the occurrence that were deemed necessary and relevant to ensuring a full and clear understanding of the occurrence.

In addition to ascertaining the course of the events surrounding the incident, the goals of the investigation were related to making preventative safety-oriented recommendations so as to preclude, to the degree possible, such a tragedy from occurring again. Neither direct blame nor implicit responsibilities were sought by the process.

The presence of shared interests and parallel investigations was acknowledged in the ToRs, most notably those of the Transportation Safety Board of Canada (TSB) and of the Royal Canadian Mounted Police (RCMP). Each was mandated and defined by specific Canadian legislation with the former being provided specific exclusivity in law, in this case the Canadian Transportation Accident Investigation and Safety Board Act, establishing that TSB alone was authorized to make specific findings as to causes and contributing factors of an occurrence. The clarification to this investigation’s ToRs was meant to ensure the investigation team was fully cognizant of both the range and the limitations of their mandate.

Though not stated explicitly in the mandate of the ToRs, it is important to acknowledge that the Commissioner’s verbal directives included specific guidance as to prioritizing the conduct of the investigation. In gauging the spectrum of approach for the coming effort, that being from expeditious and efficient through to complete and exhaustive, it was determined that while a timely explanation of the circumstances was a desirable, the imperative was to do a thorough and complete examination of all the pertinent factors so as to enhance the validity of the report and the attendant lesson and recommendations. In short, the guidance affirmed that when in doubt, the investigation team would attempt to dig deeper.

A.2 Engaging the Survivors and the Families of the Victims

After coming together and building an initial work plan in Ottawa, the initial trip of the core investigation team was to the Magdalen Islands to embark on their investigation with the two survivors and key witnesses and to initiate a relationship with the families of the victims. Viewed as key stakeholders in the process, it was determined that informing the families of the investigation team’s mandate and progress was a prime deliverable. Reaching out in this fashion opened the door to the next key possibility, the inclusion of the families’ expectations and questions early on in the fact-gathering stage of the investigation. This helped provide an important lens for the team by which to view questions and scrutinize events, as well as perspective for their analysis. A follow-up visit in June to offer a mid-way update was profoundly useful in confirming the thoroughness of the investigation and in allowing follow-up issues to be identified before completion of the report. Again, the commitment to the families of a briefing on the final commentary, observations and recommendations was important to the overall success of the investigation process.

A.3 The Investigation Team

The Commissioner of the Coast Guard determined that while an internal investigation into the capsizing of L’ACADIEN II was required, the nature of the tragedy and the involvement of the Coast Guard’s leadership team in managing the event might preclude the required perception of independence and fairness should he select a senior Coast Guard officer to lead the investigation. To guarantee himself of an unbiased arm’s length perspective, a mariner’s viewpoint and a capacity to assess systemic factors, he chose to approach the Canadian Navy for assistance in finding a suitable investigator. Subsequent deliberations resulted in the Commissioner appointing Rear Admiral Roger Girouard (Ret’d), the recent Commander of Maritime Forces Pacific and the Regional Search and Rescue (SAR) Commander for British Columbia and the Yukon, as the head of the internal investigation.

In turn, and in an effort to keep the investigation effort agile and efficient, the core investigation team was limited to two other individuals. This included Mario Pelletier, a senior Coast Guard officer with an engineering and seagoing background, currently serving in Coast Guard Headquarters, as well as Captain Sylvain Bertrand a seagoing Coast Guard officer based in Quebec Region, currently serving as Commanding Officer of the CCGS DES GROSEILLIERS, though not at sea and engaged with the events pertaining to the incident. Both were invaluable in helping to address the lead investigator’s questions and queries in a timely and productive manner. They assisted in the witness interview process and were participants in the assessment and analysis portion of the investigation. Their conduct was impartial and professional throughout.

Additional regional or technical expertise and assistance was occasionally required by the inquiry team, apart from that sought out for testimony for inclusion in the review process. This was provided by Captain Tony Kasprzak, Superintendent, Fleet Safety and Security, of the Coast Guard’s Maritime Region Offices, and Paul Rudden, the Maritime SAR Coordinator at the Joint Rescue Coordination Centre in Halifax. Each brought specific niche expertise from the Regional or Search and Rescue communities.

A.4 Relationship with TSB, RCMP and SAR Community

The reality of concurrent and parallel investigations is familiar to Canadians today. The case of L’ACADIEN II was equally subject to this approach due to the nature of the tragedy and the emergence of particular jurisdictions as a result of specific Laws and Acts. This investigative environment put certain delimitations, or boundaries, on the Coast Guard internal investigation. This had the effect of making the team cognizant and respectful of the perspectives and jurisdictions at play, including certain exclusive roles in terms of arriving at specific causal findings. Though remaining respectful of these zones of mandate or authority, the team was never constrained from addressing any pertinent subject matter or issue as a result, apart from the aspect of the manner in which findings have been dealt with in this report.

The TSB response to the L’ACADIEN II incident was mandated and immediate. As noted above in the discussion of the ToRs, Canadian legislation limits the purview of findings related to contributing and causal factors in maritime accidents to the Board and their investigations. In a practical sense, this did not preclude the Coast Guard’s internal investigation from considering or assessing these domains nor from arriving at pertinent recommendations to improve operational protocols or processes as a result. The impact of the TSB mandate resulted only in precluding the team from making direct comment on causal factors or delivering findings as such in this report. In fact, the two teams met early in the process to reassure themselves and each other of the desire to avoid mutual interference, while establishing a cooperative and collegial dialogue. The appointment of RAdm Girouard (Ret’d) as the Minister’s Observer for the Department of Fisheries and Oceans facilitated this interchange and cooperation. At the same time, it must be clearly noted that all privacy restrictions to which the TSB investigators are subject were upheld, that is to say that while technical findings and general impressions and assessments were discussed and shared, at no time were transcripts, testimonies or particular individual declarations revealed to the Admiral, as such exchanges are precluded by the Act. Don Eaves, the TSB lead for the L’ACADIEN II investigation based in Dartmouth NS, adhered to the appropriate measure of confidentiality, as determined in law. In the end, the capacity to share points of view and assessments was invaluable to this investigation, and the sense of the team is that it served the TSB aims as well. Each encounter expanded the details, perspectives and understandings available to both groups, served to corroborate and add confidence to calculations and outcomes arrived at independently, sometimes from different directions.

A second parallel investigation at hand was being conducted by the RCMP. As agents for the Nova Scotia Medical Examiner, the agency with jurisdiction over determination of the cause of death for the three recovered victims, the RCMP serves to gather the information required to conclude the Medical Examiner’s report. A distinctly separate and somewhat more nuanced aspect of RCMP involvement existed in the form of potential criminal investigation should illegal activity or criminal negligence have been determined to have formed part of the incident scenario. It should be noted as well that with the one crew member remained un-located in the afternoon of 29 March, and was presumed drowned, standing policy was invoked as the Joint Rescue Coordination Centre (JRCC) in Halifax passed the case to the Nova Scotia RCMP as a missing persons file. While no data or testimony was delivered to the RCMP nor expected by their investigators, it was clear to the Coast Guard team that any declared or inadvertent testimony which might point to the criminal spectrum would have to be reported, even if this meant putting the safety-related aspect of their work in abeyance. This threshold was never crossed and indeed, once the team had amassed a reasonably coherent picture of the event as a whole, the RCMP Major Crime Unit lead investigator, Patrick Murphy, was advised of the team’s assessment that no criminal characteristics were evident in any of the testimonies or data. It should be noted that the ongoing nature of the RCMP investigation in concert with the potential for communication between the RCMP and the Coast Guard team gave rise to concerns over self-incrimination by the officers and advice from their legal representation to delay their testimony until the RCMP had declared their work officially concluded. This injected an understandable if unfortunate delay in the interview process. While inconvenient, the delay was not pertinent to the overall investigation or in arriving at the assessments or recommendations.

Another somewhat less evident review activity was conducted by the staff of the Joint Rescue Coordination Centre itself. As mandated by the SAR Secretariat, a review of any major SAR activity or event is conducted to assess the conduct of the event with an aim to constantly improving the overall SAR team’s coordination of what are invariably complex events. Paul Rudden of the Halifax JRCC was the author of this project on behalf of the inter-agency Coast Guard/Canadian Air Force centre. His participation in interviews, tours and a range of the post-event analysis was seen as invaluable, serving both his SAR Secretariat mandate and adding to the perspective of the Coast Guard internal investigation.

While the lay observer might wonder at or even object to the aspect of multiple avenue investigations for a single incident as described above, what is discussed is not a case of absolute and constant duplications, but rather a range of independent looks with appropriate and valuable overlaps. They represent reasonably efficient and often mandated multi-track process to assure that the system arrives at a quality set of findings and recommendations. The lenses in use were different, often rooted in organizational culture, and sometimes unique. Each imparted value to the overall understanding of this tragic accident. The attendant comparing of notes was professional and discrete; where precluded in law, it simply did not occur. The investigations retained their independence and adhered to their mandates while sustaining collegial and productive interchange. In the end, a better product has likely resulted as compared to that which might have been delivered by a single agency alone.

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