R. v. Starosielski (T.), 2001 ABPC 208

• Judge: Sully, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: November 16, 2001
• Citations: 2001 ABPC 208;(2001), 302 A.R. 226 (ProvCt)

R. v. Starosielski (T.) (2001), 302 A.R. 226 (ProvCt)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. NO.121

Her Majesty The Queen v. Tom Starosielski

(70177811P20101-03; 2001 ABPC 208)

Indexed As: R. v. Starosielski (T.)

Alberta Provincial Court

Sully, P.C.J.

November 16, 2001.

Summary:

The accused farmer was charged with two counts of unlawfully diverting water contrary to s. 5(1)(a) of the Water Resources Act. The farmer pumped water out of a "slough" located on his land.

The Alberta Provincial Court found the farmer not guilty on the ground that the impugned conduct was authorized as "maintenance" under his water supply system licence. The farmer was also entitled to rely on the defences of officially induced error and reasonable mistake of fact.

Evidence - Topic 4022

Witnesses - General - Credibility - Considerations - The Alberta Provincial Court adopted and applied the following statement respecting credibility: "The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions." - See paragraph 63.

Trials - Topic 1102

Summary convictions - Defences - Mistake of fact - [See Waters - Topic 8095 ].

Waters - Topic 135

Natural waters - Riparian rights - General -Interference or diversion of water flow - The Alberta Provincial Court stated that notwithstanding legislation regulating watercourses "there remains in Alberta a vestige of the common law rights of a riparian to protect his property against flooding in certain limited circumstances" -The right was not limited to acts during actual flooding - The right could be exercised where there was a reasonable apprehension of future flooding - However, where a farmer charged with unlawfully diverting water contrary to s. 5(1)(a) of the Water Resources Act did not act for the purpose of protecting his property, riparian rights provided no defence to the strict liability offence - See paragraph 72.

Waters - Topic 6008

Conveyances, licences, etc. - Licence - Interpretation - The Alberta Provincial Court stated that "'the interpretation of a licence is not on the same level as interpretation of a statutory provision where legislative intent may be a consideration. Rather a licence may require an interpretation of the administration of the law by an executive agency. A licence also involves the interface between public interests and private rights and accordingly combines the principles of both public and private law. Consequently, the interpretation of a licence may involve greater latitude in the use of extrinsic evidence than is permitted with statutory provisions." - See paragraph 107.

Waters - Topic 8092

Offences - Defences - Officially induced error - [See Waters - Topic 8095 ].

Waters - Topic 8095

Offences - Defences - Authorization under licence or permit - A slough was located on a farmer's land - In conjunction with a licence to operate and maintain a water supply system, the farmer constructed a berm and licensed weir to preserve the slough at the required elevation - The advice and directions of a Water Resources official was sought and relied on - The farmer pumped water out of the slough on the downstream side of the weir, for the purpose of removing contaminants from the water supply system - The farmer was charged with unlawfully diverting water contrary to s. 5(1)(a) of the Water Resources Act - The Alberta Provincial Court found the farmer not guilty - Maintenance of the water supply system was authorized by the licence - Dewatering the slough to permit cleaning of contaminants constituted reasonable maintenance - Further, the farmer relied on the Water Resources official and was entitled to plead officially induced error - Finally, if the farmer erred in interpreting what constituted "maintenance" under his licence, such was a reasonable mistake of fact that also afforded him a defence to the charge - See paragraphs 53 to 137.

Cases Noticed:

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 40 C.C.C.(2d) 353, refd to. [para. 58].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161, refd to. [para. 61].

Farnya v. Chorney, [1952] 2 D.L.R. 354 (B.C.C.A.), refd to. [para. 63].

R. v. White, [1947] S.C.R. 268, refd to. [para. 64].

Tottrup v. Alberta (1979), 17 A.R. 563 (C.A.), refd to. [para. 72].

R. v. T.G. (1990), 102 A.R. 289 (Prov. Ct.), refd to. [para. 73].

R. v. Cancoil Thermal Corp. (1986), 14 O.A.C. 225; 27 C.C.C.(3d) 295 (C.A.), refd to. [para. 94].

R. v. Jorgensen (R.) (1995), 189 N.R. 1; 87 O.A.C. 1; 102 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 94].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 105].

R. v. Laidlaw Environmental Service Ltd., [1994] O.J. No. 4194 (Prov. Div.), refd to. [para. 106].

Kelly v. O'Brien, [1942] O.R. 691 (C.A.), refd to. [para. 106].

Rizzo and Rizzo Shoes (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 109].

R. v. St. Paul (Town) (1993), 150 A.R. 372 (Prov. Ct.), refd to. [para. 110].

R. v. Molis (1981), 33 N.R. 411; 55 C.C.C.(2d) 558 (S.C.C.), refd to. [para. 133].

R. v. Davidson (1971), 3 C.C.C.(2d) 509 (B.C.C.A.), refd to. [para. 133].

R. v. Sisto Finance NV, [1994] O.J. No. 1184 (Prov. Div.), refd to. [para. 134].

Statutes Noticed:

Water Resources Act, R.S.A. 1980, c. W-5, sect. 5(1)(a) [para. 54].

Counsel:

Susan McRory, for the Crown;

Orville T.G. Morrow, for the defendant.

This case was heard before Sully, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on November 16, 2001.