R. v. Gemtec Ltd. et al., (2007) 321 N.B.R.(2d) 200 (TD)

• Judge: McNally, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: February 20, 2007
• Jurisdiction: New Brunswick
• Citations: (2007), 321 N.B.R.(2d) 200 (TD);2007 NBQB 199

R. v. Gemtec Ltd. (2007), 321 N.B.R.(2d) 200 (TD);

    321 R.N.-B.(2e) 200; 827 A.P.R. 200

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2007] N.B.R.(2d) TBEd. JN.015

Renvoi temp.: [2007] N.B.R.(2d) TBEd. JN.015

Gemtec Limited and Robert Lutes (appellants) v. Her Majesty the Queen (respondent)

(M/A/0003/06; 2007 NBQB 199; 2007 NBBR 199)

Indexed As: R. v. Gemtec Ltd. et al.

Répertorié: R. v. Gemtec Ltd. et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

McNally, J.

June 4, 2007.

Summary:

Résumé:

The New Brunswick Provincial Court found Gemtec Ltd. and its president, Lutes, guilty of the following violations of s. 36(3) of the Fisheries Act (Can.): (1) unlawfully depositing or permitting the deposit of leachate, a deleterious substance, into Jonathan Creek, a tributary of the Petitcodiac River; and (2) unlawfully depositing or permitting the deposit of leachate into the Petitcodiac River. On count (1), the court ordered an absolute discharge of both accused. On count (2), the court fined Lutes $1,000, ordered him to pay an additional $1,000 to the court to be distributed to the Receiver General of Canada in trust for the Environmental Damages Fund and ordered him to pay a further $1,000 to the court to be distributed to the Jonathan Creek Committee exclusively for the purposes of the restoration of Jonathan Creek. As for Gemtec, the court fined it $5,000, ordered it to pay an additional $10,000 to the court to be distributed to the Receiver General of Canada in trust for the Environmental Damages Fund and ordered it to pay a further $10,000 to the court to be distributed to the Jonathan Creek Committee exclusively for the purposes of the restoration of Jonathan Creek. The accused appealed against their convictions. The Crown appealed against the sentences imposed.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeals.

Pollution Control - Topic 4084

Water - Dumping - Deleterious substances - The City of Moncton retained Gemtec to implement a plan, which Gemtec prepared, for the closure of the City's landfill site on the north shore of the Petitcodiac River - The plan was to comply with all federal and provincial regulatory requirements, including s. 36(3) of the Fisheries Act (Can.) - The plan included landscaping and monitoring measures but did not include measures or methods to contain and/or prevent the deposit of leachate into the River and its tributary, Jonathan Creek - In fact, Gemtec built a 400 meter long pipe to collect the leachate and deposit it into the Creek - The trial judge found Gemtec and its president, Lutes, who both controlled the closure, guilty of violating s. 36(3) by unlawfully depositing or permitting the deposit of leachate, a deleterious substance, into the Creek and the River - The defence of due diligence was not made out - The New Brunswick Court of Queen's Bench, Trial Division, upheld the decision - See paragraphs 1 to 38.

Pollution Control - Topic 4085

Water - Dumping - Defences - [See Pollution Control - Topic 4084 ].

Pollution Control - Topic 4085

Water - Dumping - Defences - The City of Moncton retained Gemtec to implement a plan, which Gemtec prepared, for the closure of the City's landfill site on the north shore of the Petitcodiac River - The plan was to comply with all federal and provincial regulatory requirements, including s. 36(3) of the Fisheries Act (Can.) - The plan included landscaping and monitoring measures but did not include measures or methods to contain and/or prevent the deposit of leachate into the River and its tributary, Jonathan Creek - Gemtec and its president, Lutes, were charged with violating s. 36(3) by unlawfully depositing or permitting the deposit of leachate, a deleterious substance, into the Creek and the River - The accused invoked officially induced error - The trial judge rejected the defence and found the accused guilty - The officials contacted were not "appropriate" in that they did not have relevant responsibility respecting s. 36(3) - Also, the accused did not have the plan reviewed by Environment Canada or the Department of Fisheries and Oceans, nor did they seek any legal advice in relation to it - The New Brunswick Court of Queen's Bench, Trial Division, upheld the decision - See paragraphs 39 to 47.

Pollution Control - Topic 9276

Offences - Sentences - Fines and penalties - Discharge of pollutant or harmful substance - Gemtec and its president, Lutes, were found guilty of violating s. 36(3) of the Fisheries Act (Can.) by unlawfully depositing or permitting the deposit of leachate, a deleterious substance, into the Petitcodiac River and its tributary, Jonathan Creek - The trial judge imposed $25,000 in fines and penalties on Gemtec and $3,000 on Lutes, for a total of $28,000 - The Crown appealed, seeking $70,000 to $80,000, on the basis of existing caselaw - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeal - The caselaw cited by the Crown came from outside New Brunswick - The offenders in that caselaw included large national or multinational corporations and the City of Kingston - By contrast, Gemtec was an employee owned New Brunswick company having total annual revenues of approximately $4,000,000 - The $28,000 penalty on the accused had a greater effect on them than a $65,000 penalty imposed on a multinational oil company or even a $150,000 penalty imposed on the City of Kingston - See paragraphs 57 to 62.

Lutte contre la pollution - Cote 4084

Eau - Immersion de déchets - Substances nocives - [Voir Pollution Control - Topic 4084 ].

Lutte contre la pollution - Cote 4085

Eau - Immersion de déchets - Moyens de défense - [Voir Pollution Control - Topic 4085 ].

Lutte contre la pollution - Cote 9276

Infractions - Peines - Amendes et pénalités - Rejet de polluant ou d'une substance nocive - [Voir Pollution Control - Topic 9276 ].

Cases Noticed:

R. v. G.J.G. (2002), 254 N.B.R.(2d) 131; 664 A.P.R. 131; 2002 NBCA 99, refd to. [para. 20].

R. v. Fowler (M.O.) (2006), 304 N.B.R.(2d) 106; 788 A.P.R. 106; 2006 NBCA 90, consd. [para. 21].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, consd. [para. 24].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, consd. [para. 27].

R. v. Alexander (B.) (1999), 171 Nfld. & P.E.I.R. 74; 525 A.P.R. 74 (Nfld. C.A.), consd. [para. 34].

R. v. Starvish (1987), 79 N.S.R.(2d) 136; 196 A.P.R. 136 (C.A.), refd to. [para. 35].

R. v. Harris (J.L.) (1997), 165 N.S.R.(2d) 73; 495 A.P.R. 73; 121 C.C.C.(3d) 64 (C.A.), refd to. [para. 35].

Lévis (City) v. Tétreault (2006), 346 N.R. 331 (S.C.C.), consd. [para. 39].

R. v. Jorgensen (R.) et al., [1995] 4 S.C.R. 55; 189 N.R. 1; 87 O.A.C. 1; 102 C.C.C.(3d) 97, consd. [para. 39].

R. v. MacMillan Bloedel (Alberni) Ltd. (1979), 47 C.C.C.(2d) 118 (B.C.C.A.), leave to appeal refused, [1979] 1 S.C.R. xi; 29 N.R. 89, consd. [para. 47].

R. v. R.K.J. (1998), 207 N.B.R.(2d) 24; 529 A.P.R. 24 (C.A.), consd. [para. 55].

Fletcher v. Kingston (City), [1999] O.J. No. 5705 (Prov. Div.), dist. [para. 57].

R. v. Welwood Canada Ltd., [1999] B.C.J. No. 2242 (Prov. Ct.), dist. [para. 57].

R. v. Shell Canada Products Ltd., [1992] B.C.J. No. 2975 (Prov. Ct.), dist. [para. 57].

R. v. Echo Bay Mines Ltd., [1993] N.W.T.J. No. 44 (Terr. Ct.), dist. [para. 57].

Counsel:

Avocats:

Robert L. Kenny, Q.C., for the appellants;

Paul Adams, for the respondent.

These appeals were heard on February 20, 2007, by McNally, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following decision on June 4, 2007.