R. v. Newfoundland Recycling Ltd., (2008) 274 Nfld. & P.E.I.R. 83 (NLTD)

JudgeDunn, J.
CourtSupreme Court of Newfoundland and Labrador (Canada)
Case DateMarch 04, 2008
JurisdictionNewfoundland and Labrador
Citations(2008), 274 Nfld. & P.E.I.R. 83 (NLTD)

R. v. Nfld. Recycling Ltd. (2008), 274 Nfld. & P.E.I.R. 83 (NLTD);

    837 A.P.R. 83

MLB headnote and full text

Temp. Cite: [2008] Nfld. & P.E.I.R. TBEd. MR.007

Newfoundland Recycling Limited (appellant) v. Her Majesty The Queen, as represented by the Attorney General of Canada (respondent)

(200501T8101; 2008 NLTD 38)

Indexed As: R. v. Newfoundland Recycling Ltd.

Newfoundland and Labrador Supreme Court

Trial Division

Dunn, J.

March 4, 2008.

Summary:

The accused was convicted under the Fisheries Act of permitting the deposit of a deleterious substance (100 litres of oil), from its vessel anchored at a wharf, in water frequented by fish. The accused was fined $15,000. The accused appealed against conviction and sentence. The accused submitted that the trial judge erred in determining that the accused had the requisite control to permit and did permit the deposit of the oil. The trial judge also allegedly erred in finding that the vessel was either anchored to the wharf or, alternatively, finding that reference in the charge to "anchored to the wharf" was surplusage and not an element of the offence to be proved by the Crown.

The Newfoundland and Labrador Supreme Court, Trial Division, dismissed the appeal against conviction and sentence.

Criminal Law - Topic 7287

Summary conviction proceedings - Informations - Surplusage - The accused was convicted under the Fisheries Act of permitting the deposit of a deleterious substance (100 litres of oil), from its vessel anchored at a wharf, in water frequented by fish - The accused appealed the conviction, submitting that the trial judge erred in determining that the accused had the requisite control to permit and did permit the deposit of the oil - The trial judge also allegedly erred in finding that the vessel was either anchored to the wharf or, alternatively, finding that reference in the charge to "anchored to the wharf" was surplusage and not an element of the offence to be proved by the Crown - The Newfoundland and Labrador Supreme Court, Trial Division, dismissed the appeal - The trial judge did not err in finding that the accused's failure to exercise control over the vessel, while having the ability to do so, resulted in the oil spill - The reference to "anchored to the wharf" in the information was mere surplusage and not an element of the offence to be proved by the Crown - Alternatively, the trial judge did not err in finding that the Crown proved that the vessel was "anchored to the wharf" - See paragraphs 24 to 42.

Fish and Game - Topic 2180

Fishing offences - Particular offences - Deposit of deleterious substance in water frequented by fish - [See Criminal Law - Topic 7287 ].

Fish and Game - Topic 2713

Offences - Sentence, fines and penalties - Deposit of deleterious substance in water frequented by fish - The accused was convicted under the Fisheries Act of permitting the deposit of a deleterious substance (100 litres of oil), from its vessel anchored at a wharf, in water frequented by fish and was fined $15,000 - The accused appealed the sentence, submitting that it was excessive where the spill was unintentional, relatively minor and caused no immediate environmental damage - There was no evidence that the oil spill reached the shore or that fish or other marine life were killed - The Newfoundland and Labrador Supreme Court, Trial Division, dismissed the appeal - The fine fell within the appropriate range and was not unfit - See paragraphs 43 to 51.

Pollution Control - Topic 4084

Water - Dumping - Deleterious substances - [See Criminal Law - Topic 7287 ].

Pollution Control - Topic 9276

Offences - Sentences - Fines and penalties - Discharge of pollutant or harmful substance - [See Fish and Game - Topic 2713 ].

Cases Noticed:

R. v. Gemtec Ltd. (2007), 321 N.B.R.(2d) 200; 827 A.P.R. 200 (Q.B.), refd to. [para. 16].

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, refd to. [para. 17].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, refd to. [para. 17].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 22].

R. v. Rivtow Straits Ltd. (1993), 38 B.C.A.C. 241; 62 W.A.C. 241 (C.A.), refd to. [para. 31].

R. v. Côté and Vézina, [1986] 1 S.C.R. 2; 64 N.R. 93, refd to. [para. 38].

R. v. Taylor (P.) (2002), 218 Nfld. & P.E.I.R. 354; 653 A.P.R. 354 (Nfld. T.D.), refd to. [para. 45].

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. 46].

R. v. Ship Tahkuna (2002), 210 Nfld. & P.E.I.R. 68; 630 A.P.R. 68 (Nfld. T.D.), refd to. [para. 47].

Counsel:

John Sinnott, Q.C., for the appellant;

Mark Stares, for the respondent, Attorney General of Canada.

This appeal was heard at St. John's, Nfld. and Lab., before Dunn, J., of the Newfoundland and Labrador Supreme Court, Trial Division, who delivered the following judgment on March 4, 2008.

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