R. v. Milligan (S.), 2005 NSSC 22

• Judge: Warner, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 04, 2005
• Jurisdiction: Nova Scotia
• Citations: 2005 NSSC 22;(2005), 230 N.S.R.(2d) 146 (SC)

R. v. Milligan (S.) (2005), 230 N.S.R.(2d) 146 (SC);

 729 A.P.R. 146

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. FE.034

Her Majesty the Queen (appellant) v. Scott Milligan (respondent)

(CRSK 227233; 2005 NSSC 22)

Indexed As: R. v. Milligan (S.)

Nova Scotia Supreme Court

Warner, J.

January 31, 2005.

Summary:

The defendant was charged under s. 50(2) of the Environment Act. It was alleged that the defendant was conducting a topsoil removal operation without proper approval. The defendant moved for a directed verdict arguing, inter alia, that the Crown had failed to prove the Activities Designation Regulations and that a search and seizure violated his s. 8 Charter rights. Accordingly, he requested that certain evidence be excluded.

The Nova Scotia Provincial Court, in a decision reported at 221 N.S.R.(2d) 84; 697 A.P.R. 84, dismissed the defendant's motion. The defendant was convicted.

The Nova Scotia Provincial Court, in a decision reported at 226 N.S.R.(2d) 16; 714 A.P.R. 16, imposed a fine of $8,500, together with a victim surcharge, for a total of $9,775. The Crown appealed.

The Nova Scotia Supreme Court dismissed the appeal.

Pollution Control - Topic 9183

Offences - Sentencing - Considerations - The defendant was convicted under s. 50(2) of the Environment Act for conducting a topsoil removal operation without proper approval - The accused received approximately $43,000 for the topsoil - The trial judge imposed a fine of $8,500, together with a victim surcharge, for a total of $9,775 - The Crown appealed, alleging that the trial judge erred by 1) holding that the case was largely concerned with the defendant's failure to follow the approval process; 2) holding that the possibility that the defendant might have been able to obtain future approval was an important and mitigating factor; 3) failing to give appropriate consideration to the factors relating to specific and general deterrence and denunciation; and 4) holding that monies received from the sale of topsoil were not determinative - The Nova Scotia Supreme Court dismissed the appeal.

Pollution Control - Topic 9283

Offences - Sentences, fines and penalties - Removal of topsoil - [See Pollution Control - Topic 9183 ].

Cases Noticed:

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, refd to. [para. 7].

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, refd to. [para. 7].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 7].

R. v. G.W., [1999] 3 S.C.R. 597; 247 N.R. 135; 181 Nfld. & P.E.I.R. 139; 550 A.P.R. 139, refd to. [para. 7].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 7].

R. v. Longaphy (J.F.) (2000), 189 N.S.R.(2d) 102; 590 A.P.R. 102 (C.A.), refd to. [para. 8].

R. v. MacLeod (R.B.) (2004), 222 N.S.R.(2d) 56; 701 A.P.R. 56 (C.A.), refd to. [para. 8].

R. v. MacDonald (C.V.) (2003), 213 N.S.R.(2d) 344; 667 A.P.R. 344 (C.A.), refd to. [para. 8].

R. v. Cotton Felts Ltd. (1982), 2 C.C.C.(3d) 287 (Ont. C.A.), refd to. [para. 12].

R. v. United Keno Hill Mines Ltd. (1980), 1 Y.R. 299 (Terr. Ct.), refd to. [para. 12].

R. v. General Scrap Iron & Metals Ltd. (2003), 322 A.R. 63; 2003 ABQB 22, refd to. [para. 13].

Counsel:

Robert C. Stewart, Q.C., for the respondent;

Lloyd Lombard, for the Crown.

This appeal was heard in Kentville, N.S., on January 4, 2005, by Warner, J., of the Nova Scotia Supreme Court, who delivered the following decision on January 31, 2005.