Back to the Ashes of the RCBYC

A spectator (you know who you are) recently referenced my June 2019 article about the Royal Cape Breton Yacht Club (RCBYC), the 113-year-old building that graced the Sydney waterfront until 3 May 2013, when it was destroyed by fire.

This reminded me that I had never properly followed up on that initial story, which was based on a little cache of documents released by the Atlantic Canada Opportunities Agency (ACOA).

In it, I focused on the behind-the scenes action that led to the sale of the club to Enterprise Cape Breton (ECBC). The development agency had refused to fund repairs to the iconic RCBYC on the grounds that the estimated (and very likely inflated) costs — “in excess of $2.5 million” — were too high, even as it was quietly negotiating a $4 million non-repayable “contribution” to a brand new marina in Ben Eoin.

Royal Cape Breton Yacht Club

Royal Cape Breton Yacht Club (CBC photo)

ECBC paid $280,000 for the RCBYC with the intention of demolishing it, an intention that sparked opposition from local quarters, but before the case for preserving the building could be made, the club burned to the ground. And before Canada’s Auditor General Michael Ferguson could begin a planned investigation into ECBC’s Ben Eoin investment and proposed RCBYC demolition, ECBC head John Lynn was fired and the agency folded into ACOA.

I said in that original article that I would seek out police and fire reports related to the fire, after noting that the Cape Breton Regional Police Service (CBRPS), in a 4 May 2013 press release stated:

The Forensic Ident Unit and Arson Investigator were…called to assist the Fire Marshal’s Office with an investigation into the cause of the fire.

But the Fire Marshal’s Office told me they were never asked to investigate the yacht club fire and that I should direct my inquiries to the CBRPS. Which I did, and, to their credit, they responded promptly. I’m the one who dropped the ball, filing the information away, intending to return to it immediately, then forgetting about it.

Until today, that is.

 

Fire Marshal

I received a copy of a Fire Report Form dated 30 July 2013 and signed by Deputy Fire Marshal Doug MacKenzie, who has since been named OFM director.

Information had been redacted and the explanatory code given was 20(1), which refers to the federal Access to Information and Privacy Act (ATIP). I’m not entirely sure why the federal law would apply to this information, which seems to have come from the provincial Department of Labour and Advanced Education (where the Office of the Fire Marshal was held until 2014, when it moved to Municipal Affairs). My best guess is that the province retrieved the record from the Canadian Fire Statistics Database, but I can’t say for sure. I’ve asked the Office of the Fire Marshal for clarification but as of press time had not received a response.

Bottom line, however, is that the information redacted was the information I was most interested in seeing:

Redacted portion of RCBYC fire report.

(The scraps of codes visible give a hint as to the content, but to understand them I need access to the National Fire Code of Canada, used here in Nova Scotia. I’ve applied for this, through the National Research Council’s virtual store, but it’s going to take a few days to process my request.)

Luckily, the report also includes some notes from MacKenzie, who explains he was not called to the fire but went of his own volition:

I was leaving my office on Prince Street for a meeting at the civic center when a Sydney fire truck went by, I could tell they had a serious call by the high usage of the air horn. I proceeded to drive to the Esplanade, along the way I could see the smoke in the sky. I went to the scene to take photos and make observations in the event that the OFM was requested to complete an investigation.

MacKenzie certainly seemed to think his office would be called upon to “complete an investigation.” He noted that, when he arrived at the fire at 13:54, he took photos and identified himself to Deputy Fire Chiefs Jim Drisco and Richard Bulley, letting them know he was “on scene if they required OFM assistance,” although he was there to “observe only” at that point.

As he was watching the “fire suppression activities,” he received a call from Deputy Fire Marshal Paul MacCormick, and “advised him” that he might “need assistance” should the OFM be “requested for an investigation.” (MacCormick joined MacKenzie at the scene soon after.)

But MacKenzie also realized any investigation would be difficult:

Spoke with Jim Drisco and [Platoon Chief] Charlie Long [who was in command of the scene] on the amount of damage to the structure and the fact the excavator had deposited debris and spread the building materials, making it extremely difficult for a physical examination of the area of suspected origin.

In his own summary of the case, CBRPS Arson Investigator Cst. A.J. MacIsaac said that a constable on the scene, Ryan Lawrence, had spoken to Long who said the fire was “deemed suspicious” and would “have to be investigated.” But:

They do not have a starting point for the fire because the flames and smoke were too strong to control. The building was unable to be saved. [Long] advised a [Hy-Hoe] was being brought in to tear down the [remaining] wall left standing to help fight the fire. There was no hope in saving the building at all.

MacIsaac, in a “supplementary occurrence report” filed on the day of the fire said he’d spoken with Paul MacCormick and Doug MacKenzie regarding the fire and:

Deputy Marshall MacKenzie advised that he is unable to process scene due to demolishing of building.

MacKenzie, in his own notes, put it somewhat differently:

…a request for the Office of the Fire Marshal to conduct or take control of the scene was never received. OFM Deputies provided information on the processes, and assisted with some analyses, but were not requested to do an investigation.

 

The Fire

All the times in the reports I received are approximate, but at about 13:20, according to what he later told police, the manager of the Charlotte Street Scotiabank, whose office overlooked the Yacht Club, saw smoke and flames, although he reported seeing no one suspicious in the area.

At about 13:40, Cst Ryan Lawrence and Cst. Curtis MacDonald, who had been in the parking lot behind Centre 200 responding to a complaint, saw “visible black smoke in the sky.” (Lawrence said they’d arrived at Centre 200 at about 13:30, and he’d driven up Prince Street to get there, at which point, no smoke was visible.)

Fire at Royal Cape Breton Yacht Club

Fire at Royal Cape Breton Yacht Club (Source: CTV)

Police weren’t actually dispatched to the fire, they followed the smoke, reaching the RCBYC at “about” 13:45, just as Sydney Fire was arriving on the scene. By that time, according to Lawrence:

The building had been engulfed in flames. The back of the building facing the harbour was filled with smoke and fire.

Lawrence listed himself, MacDonald, Sgt. Scott Reeves and Cst. Trevor Whitewood as the officers who had responded. At a request from Platoon Fire Chief Long, the police secured the perimeter with caution tape and moved pedestrians to the intersection of Dorchester and Esplanade.

MacDonald said he saw “a suspicious male on a red bicycle wearing a grey hooded sweater.” When he approached the man to ask him to move behind the barrier, the cyclist “quickly sped off in the direction of Dorchester Street.”

Lawrence said “several other departments” arrived on the scene to assist:

  • Public Works came to block the street and sidewalks
  • Nova Scotia Power attended to disconnect the power to the building
  • EHS in case of injuries
  • Scotia Propane to shut down and help the Fire Dept. control the tanks in case the fire caused an explosion
  • ECBC – owners of the building

Lawrence spoke with the ECBC reps on the scene, property managers Rod MacKeigan and Wendy Somerton-Stone, who said there was nothing valuable inside the club and while the building still had power there was nothing, as far as they knew, “that would cause a small explosion.” (More about that in the witness accounts.)

MacKeigan said he would have been one of the last people in the building, having entered on Tuesday, April 30, with some CBRM employees to disconnect boardwalk lights from the boat house. MacKeigan said the building was locked afterward and had smoke alarms “that would have went off at the time of the fire.”

 

Witnesses

Police gathered witness reports in a number of ways — some witnesses pro-actively approached officers at the scene, some called the police, some were contacted based on information they gave 911, some seem to have been approached by police both by phone and in person — but rather than get too hung up on how information was obtained or which officer obtained it, I thought it would be more helpful just to summarize what the various witnesses had to say.

Doug MacKenzie, the deputy Fire Marshal, for example, spoke with two volunteer fire fighters who told him that had “not noticed anything” when they went into the Scotiabank branch on Charlotte Street but “when they came out about 4 mins later” the “entire rear” of the Yacht Club was “involved in heavy black smoke throughout the structure.” MacKenzie passed this information along to the police.

A Supervisor Operator at the Communications Centre told Cst. Ryan Lawrence there were “numerous” 911 calls reporting the fire:

The ones they were able to get names and numbers for were placed on the incident sheet. The rest were either quick calls and hang ups or transferred to another 911 Communication Center in Nova Scotia due to the massive call volume [tying] up the lines.

Lawrence attempted to contact eight of the people who had called 911 and succeeded in reaching five of them:

One witness had exited the Joan Harriss Cruise Pavilion and seen smoke rising from the side of the Yacht Club closest to the Holiday Inn. He did not see anyone around the building or hear an explosion. He got into his vehicle and drove toward the building and by the time he reached it, it was “up in flames.” He ran down and knocked on the door of the club to be sure no one was inside. At this point, he saw the fire truck coming, so “got into his vehicle and left.”

Another witness, who worked at 122 Charlotte Street, said she and a friend were having a cigarette behind that building when they saw smoke coming from the “back” of the Yacht Club (which I think means the harbor side of the building). She ran inside to get her phone and began taking pictures, which she supplied to the police (I believe they are the photos in the slideshow below, although they weren’t identified as such by the CBRPS). She said at first there was “a bit of smoke” and then “she heard a loud explosion and the flames went right through the building.” She did not see anyone around.

A third witness, a retired RCMP officer, said he’d been walking south on the boardwalk “before the fire started” and saw “a male on a bike standing between the boathouse and the yacht club.” He thought the man was suspicious and was able to give police a detailed description of him. The witness continued walking and, and as he passed the Holiday Inn, the man on the bike passed him, travelling south. The witness said the man “stopped at the Holiday Inn, looked in the direction of the yacht club then continued on riding his bike.” The witness continued walking as far as the Civic Centre and when he looked back, he saw people “looking at something around the corner of the Holiday Inn.” He started walking back and saw smoke.

A fourth witness, who worked at Flavour 19 restaurant on Pitt Street, said he saw the building on fire but did not “hear or see anything around.”

Lawrence doesn’t say where the fifth witness was situated, just that she saw the fire “just as the smoke was coming up from the building.” She said it was coming from the corner closest to the Holiday Inn but within “a couple of minutes” the entire building was in flames. She did not hear or see anything or anybody around the Yacht Club.

 

CCTV

If this were a television show, the case might well have turned on CCTV footage from nearby security cameras. But this is real life, so it didn’t work out quite so well.

There were security cameras in the area: at Scotiabank, at Governor’s Pub (whose owner had not seen anything or anyone around the Yacht Club) and at the Holiday Inn.

But Scotiabank’s manager told police the bank had no cameras outside the building pointed in that direction.

three surveillance cameras

According to the Supplementary Occurrence Report filed by the Arson Investigator, Cst. AJ McIsaac, on 6 August 2013,  video was “seized” from Governor’s, but:

…it was the wrong time frame, and only showed the view of the step in front of the building with a far shot of the street. Nobody could be ID[ed] on the video nor did any emergency vehicles arrive…

And finally, a maintenance worker at what some of the police reports were still calling the “Delta” (the former name of the Holiday Inn) brought Cst. Dennis MacSween to the rooftop to see the camera and determine “if any info could be gained” from it, but it was “highly elevated” and “pointed towards [W]estmount” and would not have had a shot of the Yacht Club or the boardwalk. (Apparently the owners of the Holiday Inn live in fear of an invasion by sea.)

 

Arson

The focus of the police investigation of the fire moved very quickly  to the man they believed had started it.

As noted above, Cst. Curtis MacDonald reported seeing a “suspicious” man on a bike while he was herding pedestrians at the fire scene. And at 15:00 on the day of the fire (while firefighters were still battling the blaze which they didn’t bring under control until roughly 16:30), the retired RCMP officer mentioned above, Brian Phinney, contacted Sgt. Jody Wilson to tell his story of a man on a bicycle near the Yacht Club who was behaving “suspiciously,” making Phinney think he might have been stealing the bike.

Phinney provided a description of the man — approximately 25 years old, stocky build (transcribed, you couldn’t make this up, as “stalky” in the police report), approximately 5 feet 8 inches tall, lazy or crossed eye, clean shaven, clear complexion, wearing denim carpenter-style jeans, a baseball cap with a hood over it and ” a coat that looked like a Canada Post Coat, only without any patches.”

 

Cst. AJ MacIsaac “fanned out this description” to dispatch. He wrote in his own case file synopsis that he “suspected that the male described could be Derrik [sic] Harris” (Derrick Joseph Harris, whose name is spelled variously “Derrick” and “Derrik” and “Derek” in the police reports). An email was sent out to all patrols as well to be on the lookout for “a male matching the description.”

Around midnight on 4 May 2013, Cst, Donald W. Reginato “observed a suspicious male riding a bike in the middle of Dorchester Street near the Esplanade” and “stopped to see if the rider was in distress or if he had any issues as he was riding the bike in the middle of a roadway.” (It’s beyond the scope of this article to parse all of this, but I would like to know what police mean when they say someone looked “suspicious.” Does riding a bike down the middle of a deserted street at midnight make you “suspicious?”)

Reginato identified the man as Harris and dispatch advised he was on a probation order with several conditions, none of which Harris was breaching, so he was “free to carry on his way.” But, according to Reginato’s own report:

Moments later while on routine patrol [Reginato] observed Harris standing on Governors Pub property, [Reginato] asked dispatch to repeat the conditions again for Harris and it was confirmed that Harris was to stay away from any establishment that sells alcohol as a primary product. Harris at this time was riding his bike away from the front steps of Governors towards a parking lot, [Reginato] approached Harris and advised him to step off the bike. Harris followed the instructions, Harris was then arrested on scene for breaching his probation order, Harris was searched, handcuffed and placed in the rear of a police vehicle.

The cops searched Harris and found  marijuana (in violation of his probation order) and a small pipe. A subsequent search found four lighters. They charged him with three breaches of his probation order, including “not being of good behaviour.”

Reginato called MacIsaac to tell him Harris was under arrest “on different charges” and in police lock-up.

At 00:40 hours, MacIsaac called Cst. Leo Farrell and told him a man matching the description sent out on 3 May 2013 had been “apprehended” and was “presently in custody at Central Lock-up facility.”

Farrell’s account of Harris’ arrest is different enough to quote:

As a result of the BOLO sent out by Sgt. WILSON he Cst. REGINATO had observed a male on Dorchester Street riding a bike and later again on the front steps of Governors Pub directly across from the fire scene of fire that destroyed the Royal Yacht Club Esplanade Sydney. Cst. REGINATO stated that the male Derek [sic] HARRIS had on clothing matching that of the BOLO had same physical characteristics and was riding a bike as described by a witness.

(No concerns about Harris being “in distress” or “having issues.” Reginato stopped him because he recognized him — so why claim otherwise in an official report?)

MacIsaac went into Central Division, where Harris was being held, and at 02:45, he and Farrell went to Harris’ cell and informed him that, from that point on, all conversations would be recorded.

They then took him to an interview room where they questioned him until 04:06.

 

Confession

MacIsaac informed Harris he was being investigated with “regards to the Arson” that occurred at the Yacht Club on 3 May 2013.

Harris said he understood his rights and the police caution and did not wish to speak with counsel and then, according to MacIsaac and Farrell’s report (I didn’t receive a full account of the interview) Harris said he was at the Yacht Club on 3 May 2013 and “set the fire by using a Tim [H]ortons bag, and cardboard, on a couch that was outside the Yacht Club on the first level.”

Harris said he’d watched the fire burn for “about 5 minutes” before taking off from the scene.

Harris advised that he didn’t go there with the intention of setting the fire, but was angry, and decided to light it. Harris stated that after lighting the fire he made his way back to [redacted] and stayed inside until the point that he was arrested.

Harris’ clothes were seized and logged into evidence “as 9 separate bags.” (Elsewhere in the documents it’s noted there were no burn marks on the clothes and MacIsaac “could not tell if there were any smoke odours” on Harris.)

On 26 September 2013, MacIsaac reported having conducted a photo array with Phinney. I am not sufficiently familiar with police investigations to know if it is unusual for the police to wait four months after an incident to conduct a photo array, but it seems strange to allow that much time to elapse before conducting an exercise that depends on human memory. (MacIsaac recorded his plans to prepare a “photo line up” on the day of the fire.) At any rate, here’s the report:

CBRPS Occurence Report

 

Case dismissed

On 23 May 2014, Provincial Court Judge Brian Williston ruled that Harris’ confession was “the result of an inducement and therefore not given freely or voluntarily.”

Provincial Court House, Sydney, NS.

Provincial Court House, Sydney, NS.

As Steve MacInnis of the Cape Breton Post reported:

Williston concluded that because Harris has a diminished mental capacity, the comments made to him by investigator Const. A.J. MacIsaac during an early morning, one-hour interrogation could be construed by Harris as offering a promise that he would not be charged if he admitted to the crime.

The judge said while the conduct of MacIsaac was not oppressive in terms of an individual with an average developmental state, it was oppressive for Harris who has a diminished mental capacity.

“In my view, these circumstances created an atmosphere of inducement such that the will of the accused was overborne and any hesitation he may have had about providing a statement was removed by these inducements,” said Williston.

McInnis explained that during voir dire, Harris’ defense lawyer, Drew Rogers, had first challenged whether Harris’ arrest was valid (Willison ruled it was) before challenging the voluntariness of the statement.

Williston ruled it was not voluntary, referring to MacIsaac’s testimony in which “he admitted to telling Harris police had eyewitnesses who saw him leave the scene, which was not true.” I’m going to quote the Post story at length, rather than trying to rephrase it:

MacIsaac said it was a common technique used by police in a bid to get an accused to open up.

“Const. MacIsaac, further in his cross-examination by defence counsel, testified that other than his own suspicions, he did not have any evidence to suggest the accused was responsible for the fire at the yacht club,” said Williston.

Further, said the judge, the officer testified he had no concern with the manner in which Harris spoke or concern with his mental capacity, having dealt with him in the past.

“It is obvious,” said the judge in his decision, “in viewing the video that the accused Mr. Harris is a person with a disability in relation to his mental capacity.”

During the interview, MacIsaac makes repeated references to witnesses seeing Harris at the scene along with videotape where MacIsaac tells Harris he doesn’t think the fire was a big deal because the building was old, there was nothing inside and no one got hurt.

“Tell me what happened. Tell me why those are the big questions I have. Why? So I can put on paper and go ‘Derrick didn’t mean to hurt anybody.’ I can at least put something on paper so I can put my file back in the filing cabinet. I have more important things to do than this file and I have actual criminals to go after and you are not a criminal,” said MacIssac.

Later MacIsaac tells Harris that the fire isn’t what he has to worry about but rather getting his life back on track and that all he did was make a mistake.

The officer said it was not about jail but more about Harris taking a step forward and moving on, moving out of Sydney.

“The remarks about putting it on paper, that it was not about jail, that he would put his rubber stamp on it, that he could go to bat for Harris, that it will give Harris a second chance sends a message, particularly to a person with an impaired intellectual capacity, that there is an advantage being held out to him if he gives a statement,” wrote Williston, in his decision.

With the statement ruled inadmissible, Crown prosecutor Shane Russell said the crown could not prove its case, and the judge acquitted Harris of all charges — including breaching his probation:

Offence/Charge record

 

 

And so…

I’m realizing why I put the file away and forgot about it — it didn’t really teach me anything I  hadn’t already known about the Yacht Club fire, except, perhaps, how little effort was made to discover its cause.

I get that, faced with a raging fire next to an exposed propane tank, your first concern as a fireman is averting an explosion. But did the site have to be so thoroughly disturbed that an investigation wasn’t even possible? Especially given the kind of public attention already focused on the Yacht Club?

Where did the fire start? What started it? Was there an “explosion?” Why did the fire engulf the building so quickly — was it simply age? Okay, now I’m asking questions for the sake of asking questions, not because I expect answers. But here’s one I think I can venture a response to:

Would the RCBYC have burned down if ECBC had decided to spend the money to repair it? If it had been fenced off ready for renovation work instead of sitting, abandoned, on the waterfront? It had survived 113 years, after all, during which time there must have been some close calls with drunken sailors and open flame and yet, it wasn’t until it was designated for demolition that it burned (or was burned) to the ground.

I know what I think, but I’m going to allow you to draw your own conclusions.