R. v. Terroco Industries Ltd.,

• Judge: McIntyre,Ritter,Slatter
• Neutral Citation: 2005 ABCA 141
• Court: Court of Appeal (Alberta)
• Date: 22 November 2004
• Citation: 2005 ABCA 141,(2005), 367 A.R. 1 (CA),[2006] 1 WWR 572,367 AR 1,41 Alta LR (4th) 1,196 CCC (3d) 293,13 CELR (3d) 48,(2005), 367 AR 1 (CA),367 A.R. 1

R. v. Terroco Ind. Ltd. (2005), 367 A.R. 1 (CA);

    346 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. AP.037

Her Majesty the Queen (respondent) v. Terroco Industries Limited (appellant)

(0401-0042-A; 2005 ABCA 141)

Indexed As: R. v. Terroco Industries Ltd.

Alberta Court of Appeal

Ritter, J.A., McIntyre and Slatter, JJ.(ad hoc)

April 8, 2005.

Summary:

A company was convicted of releasing or permitting the release into the environment of a harmful substance (Environmental Protection and Enhancement Act, s. 98(2)) and failing to comply with the safety requirements for the transportation of dangerous goods (Dangerous Goods and Handling Act, s. 19(1)).

The Alberta Provincial Court fined the company $50,000 for the s. 98(2) offence and $5,000 for the s. 19(1) offence. The Crown appealed.

The Alberta Court of Queen's Bench allowed the appeal and substituted fines of $150,000 for the s. 98(2) offence and $15,000 for the s. 19(1) offence. The company obtained leave to appeal (see 348 A.R. 96) and appealed.

The Alberta Court of Appeal dismissed the appeal respecting the s. 98(2) offence, but allowed the appeal respecting the s. 19(1) offence and restored the $5,000 fine imposed by the trial judge.

Pollution Control - Topic 9183

Offences - Sentencing - Considerations - A company was convicted of releasing or permitting the release of a harmful substance (Environmental Protection and Enhancement Act, s. 98(2)) and failing to comply with the safety requirements for the transportation of dangerous goods (Dangerous Goods and Handling Act, s. 19(1)) - On appeal from sentence, the Alberta Court of Appeal set out and discussed the following sentencing principles applicable to environmental offences: (1) culpability; (2) prior records and past involvement with the authorities; (3) acceptance of responsibility; (4) damage/harm; and (5) deterrence - See paragraphs 34 to 64.

Pollution Control - Topic 9183

Offences - Sentencing - Considerations - The Alberta Court of Appeal stated that it was impossible to establish any form of guidelines regarding sentencing under either the Alberta Environmental Protection and Enhancement Act or the Dangerous Goods Transportation and Handling Act - Offences under those Acts were similar to manslaughter in that they could be committed in practically infinite variety - The offences ranged from incidents where due diligence was a near miss to incidents where the Crown nearly established intentional conduct - At the same time, like offences for like offenders should attract similar sentences - The range of sentence for similar offences by similar offenders should not be so large as to be disparate - See paragraph 65.

Pollution Control - Topic 9276

Offences - Sentences, fines and penalties - Discharge of pollutant or harmful substance - Terroco, a corporation with annual gross revenues in the $20,000,000 range, provided transportation and handling services for dangerous chemicals - Terroco's recently appointed officer manager had little or no knowledge respecting transportation of dangerous chemicals - She was told that two products that were to be shipped should not be mixed - She failed to include the nature of the products or the mixing prohibition in the work order - She claimed that she verbally informed the recently hired driver about the prohibition - At the pick-up site, located on the outskirts of a village, the driver was given documentation that incorrectly identified the products - The products were in correctly labelled barrels - The driver mixed the products in his truck's tank - The mixing produced chlorine gas which escaped - Another driver suffered serious injury to his respiratory system - Terroco was convicted of permitting the release of a harmful substance (Environmental Protection and Enhancement Act, s. 98(2)) and fined $50,000 - A summary conviction appeal judge increased the fine to $150,000 - The Alberta Court of Appeal affirmed the decision - The trial judge underemphasized the actual harm that resulted - Fortuitously, only one person was injured, but the potential for harm had been high - See paragraphs 66 to 70 and 73 to 81.

Trade Regulation - Topic 8115

Hazardous products - Transportation of dangerous goods - Sentence - [See both Pollution Control - Topic 9183 ].

Trade Regulation - Topic 8115

Hazardous products - Transportation of dangerous goods - Sentence - Terroco, a corporation with annual gross revenues in the $20,000,000 range, provided transportation and handling services for dangerous chemicals - Terroco's officer manager, who had little or no knowledge respecting transportation of dangerous chemicals, was told that two products that were to be shipped should not be mixed - She failed to include the nature of the products or the mixing prohibition in the work order - She claimed that she verbally informed the recently hired driver of the prohibition - At the pick-up site, the driver was given documentation that incorrectly identified the products - The products were in correctly labelled barrels - The driver mixed the products in his truck's tank - The error was realized - The driver drove to his destination, an isolated rural community, where it was decided to pump the mixture into a well for an acid wash - The mixture ate through the pumping mechanism's seals and approximately one barrel sprayed onto the ground - Terroco took immediate responsibility for the clean up - No one was harmed - No permanent environmental damage occurred - Terroco was convicted of failing to comply with the safety requirements for transporting dangerous goods (Dangerous Goods and Handling Act, s. 19(1)) and fined $5,000 - The Alberta Court of Appeal held that the fine was not demonstrably unfit - See paragraphs 71 to 81.

Cases Noticed:

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 13].

R. v. Van Waters & Rogers Ltd. (1998), 220 A.R. 315; 1998 ABPC 55, refd to. [para. 17].

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. 20].

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. 21].

R. v. Kenaston Drilling (Arctic) Ltd. (1973), 41 D.L.R.(3d) 252; 12 C.C.C.(2d) 383 (N.W.T.S.C.), refd to. [para. 34].

R. v. Canadian MDF Products Co. (2002), 316 A.R. 228; 2002 ABPC 82, refd to. [para. 36].

R. v. Rio Algom Ltd. (1988), 29 O.A.C. 349; 46 C.C.C.(3d) 242; 66 O.R.(2d) 674 (C.A.), refd to. [para. 36].

R. v. Fiesta Party Rentals (1984) Ltd., 2000 ABPC 218, affd. 2001 CarswellAlta 1817 (Q.B.), refd to. [para. 36].

R. v. Centennial Zinc Plating Ltd. (2004), 353 A.R. 300; 2004 ABQB 211, refd to. [para. 38].

R. v. General Scrap Iron & Metals Ltd. (2003), 322 A.R. 63; 2003 ABQB 22, refd to. [para. 42].

R. v. Goodstoney (C.S.) (1999), 232 A.R. 243; 195 W.A.C. 243; 1999 ABCA 110, refd to. [para. 45].

R. v. DeSousa, [1992] 2 S.C.R. 944; 142 N.R. 1; 56 O.A.C. 109, refd to. [para. 45].

R. v. Domtar Specialty Fine Papers (2001), 39 C.E.L.R.(N.S.) 56 (Ont. Sup. Ct.), refd to. [para. 47].

R. v. Canadian Tire Corp., [2004] O.T.C. 668 (Sup. Ct.), refd to. [para. 47].

R. v. Panarctic Oils Ltd. (1983), 43 A.R. 199 (N.W.T. Terr. Ct.), refd to. [para. 47].

R. v. United Keno Hill Mines Ltd. (1980), 1 Y.R. 299; 10 C.E.L.R. 43 (Terr. Ct.), refd to. [para. 48].

R. v. Cotton Felts Ltd. (1982), 2 C.C.C.(3d) 287 (Ont. C.A.), refd to. [para. 48].

R. v. Chem-Security (Alberta) Ltd. (1998), 233 A.R. 289; 1998 ABPC 96, refd to. [para. 48].

R. v. Howe (F.) & Sons (Engineers) Ltd., [1992] 2 Cr. App. R.(S.) 37, refd to. [para. 48].

R. v. Gulf Canada (1987), 2 C.E.L.R.(N.S.) 261 (N.W.T. Terr. Ct.), refd to. [para. 63].

Authors and Works Noticed:

United Kingdom, Sentencing Advisory Panel, Environmental Offences: The Panel's Advice to the Court of Appeal, Consultation Paper (2000), paras. 17 [para. 48]; 18 [para. 63].

Counsel:

L.M. Jenkins, for the respondent;

L.E. Goddard, Q.C., for the appellant.

This appeal was heard on November 22, 2004, Ritter, J.A., and McIntyre and Slatter, JJ., of the Alberta Court of Appeal. Ritter, J.A., delivered the following reasons for reserved judgment for the court on April 8, 2005.