How Sandro Lisi influenced the Elliot Lake mall inquiry

One person is staring at potential jail time. One. That could still change, of course—police continue to investigate the deadly 2012 shopping-mall collapse in Elliot Lake, Ont.—but, more than two years after the roof came crashing down, another arrest seems less and less likely.

Some people (they know who they are) must be praying that’s true.

The lone accused is Sault Ste. Marie resident Robert G.H. Wood, a once-respected engineer now facing multiple charges, including two counts of criminal negligence causing death. His firm was hired to inspect the doomed Algo Centre in April 2012, and Wood, the company president, personally declared the building “structurally sound.” Ten weeks later, the rooftop parking lot caved in, crushing Doloris Perizzolo and Lucie Aylwin.

Police allege that Wood, now 65, did not conduct a “competent and thorough” inspection and failed “to recognize and report obvious and urgent structural integrity deficiencies.” If convicted, he could spend the rest of his life in prison.

Related: One step from death: The Algo Centre Mall collapse

It was that prospect that prompted a unique, last-minute request earlier this year. The discredited engineer had already finished testifying (voluntarily) at a parallel public inquiry when the Ontario Provincial Police laid criminal charges in January. Fearful that the inquiry’s final conclusions could now taint potential jurors at his eventual trial, Wood asked Commissioner Paul Bélanger to temporarily censor certain portions of his report, due for release later this fall.

Public inquiries are fact-finding missions, tasked with providing recommendations, rather than assigning civil or criminal liability. But Bélanger does have the authority to issue findings of “misconduct,” and Wood was especially concerned that such a conclusion could influence would-be jurors and jeopardize his Charter right to a fair trial. The solution, he argued, was to black out any possible mention of misconduct on his part until the criminal case is complete (or he elects to be tried by a judge alone, thus avoiding the potential for biased jurors).

On Monday, Bélanger denied his request, ruling that the public’s right to know trumps Wood’s “speculative” concerns about a fair trial—which is still many months, if not years, away. “Mr. Wood’s application is effectively founded on the purported risk that the release of the Commission’s report would irremediably taint the pool of potential jurors in his criminal trial,” Bélanger wrote in his 19-page decision. “It is apparent from the recent case law that courts have been affording less weight to this concern, given the lack of evidence to suggest that it is impossible to empanel an impartial jury.”

The recent case law? Another high-profile suspect whose criminal charges have generated even more pre-trial publicity than Robert Wood’s: Alexander (Sandro) Lisi, Toronto Mayor Rob Ford’s former driver.

In his ruling, Bélanger repeatedly references the extortion charges laid against Lisi “relating to the video of the mayor of Toronto allegedly smoking crack cocaine.” In that case, media organizations successfully argued that portions of the police search warrant applications should be unsealed, despite Lisi’s claim that the contents would hurt his chance of a fair trial.

“I am prepared to accept that there is some risk to Mr. Lisi’s fair trial rights that might arise from the release of this material,” Justice Ian Nordheimer ruled last November.

“Undoubtedly, some of the references in the intercepted private communications will not reflect well on Mr. Lisi. But I contrast that possibility with certain other salient facts. One is that there has already been a fair amount of publicity in this matter that does not reflect well on Mr. Lisi, as his counsel fairly acknowledged. It is not therefore clear that this additional material will significantly affect any impressions that may have already formed in the minds of the public.”

That same logic can be applied to Wood’s predicament, Bélanger ruled. His connection to the Algo Centre collapse has been widely reported in the media, his testimony at the inquiry (spread over two days) was broadcast live and remains posted online, and other witnesses offered their own opinions about his conduct. “Many participants filed submissions urging me to make certain findings with respect to Mr. Wood’s conduct,” Bélanger wrote. “The evidence and those submissions are all available on the Commission’s website.”

Though he didn’t dispute those facts, Wood argued that Bélanger’s final report will carry considerably more weight in the public’s mind, especially if it includes a finding of misconduct. But again, the commissioner cited the Lisi ruling, which noted that “the passage of time” before a trial tends to limit the possibility of tainted jurors. “Despite what some may think, experience shows that members of the public do not remember, in any great detail, events that they read or heard about months earlier,” Nordheimer wrote, in another passage cited by Bélanger. “Anyone with experience sitting through a challenge for cause based on publicity can attest to that reality. People either paid little or no attention to the matter in the first instance, or have only the vaguest recollections of the event when questioned about it.”

Wood’s trial will not begin until late 2015, at the earliest, “by which time memories of potential jurors will undoubtedly have faded,” Bélanger wrote. “[I]s it reasonable to keep an integral and significant part of the Commission’s report hidden all this time? I think not.”

Bélanger continues: “One should not assume that persons summoned for jury duty will not be able to disassociate themselves from information that they may have heard or read in the media. The whole jury system depends on jurors acting responsibly and in good faith and obeying the direction of the trial judge.”

In his application, Wood also insisted that the proposed publication ban would be a “temporary limited exercise,” not a permanent redaction. Lisi’s lawyers mounted a similar argument: that the ban on the search warrant applications would be lifted as soon as his criminal trial ended. But, as Nordheimer pointed out, such a submission “ignores the reality that what is referred to here as a ‘temporary’ ban is one that could operate for two or more years . . . The impact of a publication ban of that length on the immediacy that naturally arises from the public’s right to have information, especially when it relates to current affairs, is so significant that it may well be, in practical terms, the equivalent of a permanent ban.”

And that, Bélanger concluded, would fly in the face of his mandate: to report the whole truth, not part of it.

“Such a redaction order would prevent the publication of a possibly important and integral part of the report, which the public and community of Elliot Lake have been waiting for for over two years,” he concluded. “Indeed, the result could be that part of my findings and recommendations would appear insufficiently substantiated or advanced without a fulsome analysis.”