R. v. Bremner and Bremner Engineering and Construction Ltd., (1993) 147 A.R. 235 (QB)

• Judge: O'Leary, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 13, 1993
• Citations: (1993), 147 A.R. 235 (QB)

R. v. Bremner (1993), 147 A.R. 235 (QB)

MLB headnote and full text

Her Majesty The Queen (respondent) v. Richard L. Bremner and Bremner Engineering and Construction Ltd. (applicants)

(Action No. 9301-1203C6)

Indexed As: R. v. Bremner and Bremner Engineering and Construction Ltd.

Alberta Court of Queen's Bench

Judicial District of Calgary

O'Leary, J.

December 13, 1993.

Summary:

The accused and his construction company were charged with unlawfully depositing a deleterious substance (silt-laden water) in water frequented by fish contrary to s. 36(3) of the federal Fisheries Act. The accused claimed that they exercised due diligence in attempting to comply with s. 36(3) and sought a stay of proceedings under s. 24(1) of the Charter of Rights and Freedoms on the ground that delay in laying the charges violated ss. 7, 11(b) and 11(d) of the Char­ter.

The Alberta Provincial Court, in a decision reported 119 A.R. 81, found the accused guilty. The court stated that the precharge delay did not violate the accused's Charter rights and due diligence was not exercised.

The Alberta Provincial Court, in a decision reported 119 A.R. 128, fined the corporate accused $10,000 and the individual accused $2,000. Three years later, the accused applied to extend the time to appeal their convictions and sentences.

The Alberta Court of Queen's Bench dis­missed the application.

Criminal Law - Topic 7468

Summary conviction proceedings - Appeals - Extension of time for appealing - An accused engineer and his construc­tion company were charged with unlaw­fully depositing a deleterious substance in water frequented by fish - The accused was convicted in June 1990 and sentenced in September 1990 - In May 1993, a discipline committee of the Association of Professional Engineers, Geologists and Geophysicists of Alberta suspended the accused engineer - In preparing to appeal from the committee's decision, the accused's solicitors advised him that there were defences which might have resulted in their acquittals at trial - In August 1993, the accused applied to extend the time to appeal their convictions and sen­tences - The Alberta Court of Queen's Bench dismissed the application, where the evidence was based on information and expertise which was available at trial - See paragraphs 1 to 15.

Criminal Law - Topic 7468

Summary conviction proceedings - Appeals - Extension of time for appealing - An accused engineer and his construc­tion company were convicted and sen­tenced for unlawfully depositing a del­eterious substance in water frequented by fish - Three years later the accused applied to extend the time to appeal their convictions and sentences - The accused asserted that the judge's conclusion that the discharge was a "deleterious substance" was unreasonable where there was no evidence or insufficient evidence that there were fish in the water or that it was a fish habitat - The Alberta Court of Queen's Bench dismissed the applica­tion, stating that the trial judge's con­clusion was not unreasonable and the accused would not have a reasonable pros­pect of success on appeal - See paragraphs 16 to 25.

Pollution Control - Topic 4084

Water - Dumping - Deleterious sub­stances - Section 36(3) of the federal Fisheries Act prohibited the deposit of a "deleterious substance" - The Alberta Court of Queen's Bench stated that "[t]he deposit of silt is not the deposit of a 'dele­terious substance' merely because it could harm fish or fish habitat. To be deleteri­ous, the deposit must have the potential to actually harm fish or fish habitat. That means that one or both of fish or fish habitat must be exposed to a risk of harm as a result of the deposit" - See para­graphs 21.

Words and Phrases

Deleterious substance - The Alberta Court of Queen's Bench discussed the meaning of "deleterious substance" as used in s. 36(3) of the Fisheries Act, R.S.C. 1985, c. F-14 - See paragraphs 3, 20, 21.

Cases Noticed:

R. v. Cole (1976), 18 Nfld. & P.E.I.R. 181; 47 A.P.R. 181; 33 C.C.C.(2d) 242 (Nfld. Dist. Ct.), appld. [para. 9].

R. v. Mohammed (F.) (1989), 61 Man.R.(2d) 192; 52 C.C.C.(3d) 470 (C.A.), consd. [para. 11].

R. v. MacMillan Bloedel (Alberni) Ltd. (1979), 47 C.C.C.(2d) 118 (B.C.C.A.), consd. [para. 20].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(a) [para. 17]; sect. 815(1), sect. 815(2) [para. 8].

Fisheries Act, R.S.C. 1985, c. F-14, sect. 34(1) [para. 3]; sect. 36(3) [paras. 1, 3].

Rules of Court (Alta.), rule 850.3(1) [para. 8].

Counsel:

R.W. Eden, Q.C., and G.E. Peterson, for the applicants;

A.H. Channer, for the respondent.

This application was heard before O'Leary, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary.

The judgment of O'Leary, J., was delivered on Dece­mber 13, 1993 and filed on Decem­ber 14, 1993.