R. v. Centennial Zinc Plating Ltd., (2004) 353 A.R. 300 (QB)

• Judge: Watson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 20, 2004
• Citations: (2004), 353 A.R. 300 (QB);2004 ABQB 211

R. v. Centennial Zinc Plating Ltd. (2004), 353 A.R. 300 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. MR.145

Her Majesty the Queen (appellant) v. Centennial Zinc Plating Ltd. (respondent)

(0205 50836 S1; 2004 ABQB 211)

Indexed As: R. v. Centennial Zinc Plating Ltd.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Watson, J.

March 16, 2004.

Summary:

Centennial Zinc Plating pleaded guilty to unlawfully releasing or permitting the release into the environment of a substance in an amount, concentration or level or a rate of release that caused or could cause a significate adverse effect contrary to s. 98(2) of the Environmental Protection and Enhancement Act.

The Alberta Provincial Court, in a decision not reported in this series of reports, imposed a $125,000 fine on Centennial. The Crown appealed.

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

Criminal Law - Topic 5810.2

Sentencing - Sentencing procedure and rights of the accused - Reasons for sentence - A company pleaded guilty to an offence under the Environmental Protection and Enhancement Act - The Crown sought, inter alia, an order for community service requiring the company to fund a research and academic study project - The trial judge imposed a fine, but refused to make such a community service order - The Crown appealed, arguing, inter alia, that the trial judge failed to give adequate reasons for his decision - The company argued that the trial judge's remarks during earlier phases of the proceedings shed light on why he elected not to include a community service order as part of his final disposition - The Alberta Court of Queen's Bench agreed that the fairest way to evaluate the trial judge's reasons was by reference to his remarks at each phase of the proceedings - It seemed clear that the trial judge intended his earlier remarks to form part of the entirety of his reasons - See paragraphs 100 to 102.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The Alberta Court of Queen's Bench stated that "While acceptance of a joint submission remains a judicial decision, it is difficult - particularly in light of the authority that seems lately to restrict the discretion of judges to refuse joint submissions within the range of the reasonable - to characterize acceptance of the joint submission as being a precedent of the same sort as a considered judgment with reasons ... Though a Trial Judge is always free to indicate concerns to Counsel and ask for more explanation before adjudicating for or against the joint submission, it is hard to construe a decision which accepts a joint submission as much more than a finding that the joint submission was within the realm of the reasonable. As such, a judgment like that is not much of a marker to set either starting point, or a tariff range. It is more of an example than a precedent." - See paragraphs 126 and 127.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle) - [See Criminal Law -Topic 5813 ].

Pollution Control - Topic 9183

Offences - Sentencing - Considerations - A company pleaded guilty to an offence under the Environmental Protection and Enhancement Act - The company spent over $168,000 to remedy the situation - The Alberta Court of Queen's Bench held that the company's remedial costs were not a mitigating factor in determining the overall penalty - The company's duty to clean up the site was required by law quite apart from the prosecution of the matter - There might be merit in considering special effort beyond what the law required, for, inter alia, its reflection of an improved attitude by the company - It was difficult to see how denunciation or deterrence could be achieved by a disposition that made a company do what it was supposed to do in the first place - The opposite effect was more likely: "to deduct the cost would depreciate the offence and deflect the necessary punition" - Similarly, rehabilitation would not be achieved by a disposition that would encourage an offender to wait until prosecution before taking the necessary steps to comply with the law - See paragraphs 109 to 113.

Pollution Control - Topic 9183

Offences - Sentencing - Considerations - A company pleaded guilty to an offence under the Environmental Protection and Enhancement Act - There was no information of the company's finances on which to discern the possible impact of a fine or a community service order as proposed by the Crown - The Alberta Court of Queen's Bench stated that the Crown did not have the onus to prove a particular corporate offender did not have a particular financial status (although it was wise for the Crown to offer evidence on the point if the company had substantial means) - However, the company's failure to lead hard evidence on the point did not invite an adverse inference (e.g., that the company profited considerably from the offence or was, despite its appearance, quite a successful business well able to pay fines and other costs) - Further, financial status was only one of many factors - A trial judge should be cautious about associating a penalty more with the offender's means than the particulars of the offence - Such an approach might encourage poorer corporations to be oblivious to legal duties and encourage well-to-do corporations to simply inventory the cost - See paragraphs 114 to 118.

Pollution Control - Topic 9186

Offences - Sentencing - Community service order - Section 234(1)(h) (formerly s. 220(1)(h)) of the Environmental Protection and Enhancement Act provided that in addition to any penalty that might be imposed on a person convicted under the Act "the court may ... make an order ... directing the offender to perform community service" - The Alberta Court of Queen's Bench stated that "s. 234(1)(h) can be read to provide for a discretion on the part of a Trial Judge to impose upon a corporate offender a second sanction in addition to a basic punitive sanction for the offence. The Legislature has balanced various elements of the public interest and has provided for the possibility of a 'community' service to come from an offender who has contributed to what is essentially a 'community' problem, namely, despoiling of the environment shared by Albertans. ... Read in context, the community service provision is additional to case-specific repair penalties. In its service of the wider public interest, the provision is not limited to a specific parochial purpose." - See paragraphs 103 to 108.

Pollution Control - Topic 9186

Offences - Sentencing - Community service order - Section 234(1)(h) (formerly s. 220(1)(h)) of the Environmental Protection and Enhancement Act provided that in addition to any penalty that might be imposed on a person convicted under the Act "the court may ... make an order ... directing the offender to perform community service" - The Alberta Court of Queen's Bench stated that setting off a fine against a community service order was not mandatory, but it could not find a global approach to be necessarily wrong either - See paragraph 121.

Pollution Control - Topic 9276

Offences - Sentences, fines and penalties - Discharge of pollutant - Over eight years, Centennial Zinc Plating, a metal plating operation, released cyanide and chrome VI compounds into the environment due to improper storage methods - Centennial pleaded guilty to unlawfully releasing or permitting the release into the environment of a substance in an amount, concentration or level or a rate of release that caused or could cause a significate adverse effect (Environmental Protection and Enhancement Act, s. 98(2)) - Centennial spent over $168,000 to remedy the situation - Its cleanup was exemplary and its current measures resulted in "a zero discharge situation" - The Crown recommended a fine of $75,000 and a community service order requiring Centennial to spend $200,000 to fund a research and academic study project - The trial judge imposed a fine of $125,000 and refused to make a community service order - The Alberta Court of Queen's Bench dismissed the Crown's appeal.

Trials - Topic 1084

Summary convictions - Informations and search warrants - Laying of - Time for - Limitation period - A company was charged under the Environmental Protection and Enhancement Act - The information was sworn on May 15, 2002 - The count indicated a date range from September 1, 1993 to April 3, 2001 - Section 226 of the Act (formerly s. 212) provided that a prosecution could not be commenced more than two years after the later of the date on which the offence was committed or the date on which the evidence of the offence first came to the Director's attention - The Alberta Court of Queen's Bench held that the reach of the count back to May 15, 2000, took in facts sufficient to support the count - The court stated that the facts of the time period prior to the limitation were still relevant as context even if a separate count for earlier time periods might have encountered a limitation problem - Facts prior to an expired limitation period may still be relevant and admissible as context to offences within the limitation period of a regulatory public welfare offence - See paragraphs 3 and 4.

Trials - Topic 3550.1

Punishments - Sentencing - Fines - Considerations - [See second Pollution Control - Topic 9183 ].

Cases Noticed:

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1; 129 C.C.C.(3d) 321; 20 C.R.(5th) 1; [1999] 5 W.W.R. 545; 58 B.C.L.R.(3d) 18; 1998 CarswellBC 2545, refd to. [para. 4, footnote 4].

R. v. CIP Inc., [1992] 1 S.C.R. 843; 135 N.R. 90; 52 O.A.C. 366; 71 C.C.C.(3d) 129; 12 C.R.(4th) 237; 9 C.R.R.(2d) 62; 7 C.O.H.S.C. 1; 1992 CarswellOnt 82, refd to. [para. 5, footnote 5].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 162 C.C.C.(3d) 298; 210 D.L.R.(4th) 608; 50 C.R.(5th) 68; 2002 CarswellNfld 74, refd to. [para. 9, footnote 8].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327; 46 C.R.(4th) 269; 1996 CarswellBC 1000, refd to. [para. 12, footnote 16].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; 102 C.C.C.(3d) 193; 129 D.L.R.(4th) 657; 43 C.R.(4th) 269; 28 W.C.B.(2d) 516; 1995 CarswellBC 906, refd to. [para. 12, footnote 17].

R. v. General Scrap Iron & Metals Ltd., [2003] 5 W.W.R. 99; 322 A.R. 63; 11 Alta. L.R.(4th) 213; 2003 CarswellAlta 19; 2003 ABQB 22, leave to appeal denied [2003] A.W.L.D. 273; 327 A.R. 84; 296 W.A.C. 84; 2003 CarswellAlta 436 (C.A.), refd to. [para. 16, footnote 18].

65302 British Columbia Ltd. v. Minister of National Revenue, [1999] 3 S.C.R. 804; 248 N.R. 216; [2000] 1 W.W.R. 195; 179 D.L.R.(4th) 577; 69 B.C.L.R.(3d) 201; 99 D.T.C. 5799 (Eng.); 99 D.T.C. 5814 (Fr.); [2000] 1 C.T.C. 57; 1999 CarswellNat 2222, refd to. [para. 86, footnote 49].

Minister of National Revenue v. Shell Canada Ltd., [1999] 3 S.C.R. 622; 247 N.R. 19; 178 D.L.R.(4th) 26; 99 D.T.C. 5669 (Eng.); 99 D.T.C. 5682 (Fr.); [1999] 4 C.T.C. 313; 1999 CarswellNat 1809, refd to. [para. 87, footnote 51].

Shell Canada Ltd. v. R. - see Minister of National Revenue v. Shell Canada Ltd.

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193; 29 C.R.(4th) 113; 23 W.C.B.(2d) 211; 1994 CarswellBC 576, refd to. [para. 100, footnote 54].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 212 D.L.R.(4th) 1; 100 B.C.L.R.(3d) 1; 18 C.P.R.(4th) 289; 2002 CarswellBC 851; 2002 SCC 42, refd to. [para. 105, footnote 58].

R. v. United Keno Hill Mines Ltd. (1980), 1 Y.R. 299; 10 C.E.L.R. 43 (Terr. Ct.), refd to. [para. 116, footnote 59].

R. v. Van Waters & Rogers Ltd. (1998), 220 A.R. 315 (Prov. Ct.), refd to. [para. 121, footnote 60].

R. v. C.H. and T.D.T. (2001), 277 A.R. 342; 242 W.A.C. 342; 153 C.C.C.(3d) 317; 2001 ABCA 87, refd to. [para. 126, footnote 61].

R. v. Tkachuk (E.A.) (2001), 293 A.R. 171; 257 W.A.C. 171; 159 C.C.C.(3d) 434; 17 M.V.R.(4th) 4; 2001 ABCA 243, refd to. [para. 126, footnote 61].

R. v. G.W.C., [2001] 5 W.W.R. 230; 277 A.R. 20; 242 W.A.C. 20; 150 C.C.C.(3d) 513; 89 Alta. L.R.(3d) 217; 2000 ABCA 333, refd to. [para. 127, footnote 62].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1; 71 C.P.R.(3d) 417; 50 Admin. L.R.(2d) 199; 1997 CarswellNat 368, refd to. [para. 131, footnote 63].

Statutes Noticed:

Mechanics' Lien Act, R.S.N.S. 1989, c. 277, sect. 6(1) [para. 20].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 105, footnote 58].

Counsel:

Susan McRory (Agent for the Attorney General Special Prosecutions Branch), for the appellant;

Shannon K.C. Prithipaul (Gunn & Prithipaul), for the respondent.

This appeal was heard on February 20, 2004, by Watson, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on March 16, 2004.