Aug 9 2004

August 9/2004

City turns to Supreme Court over Belle Park ruling

by The City of Kingston

On Friday, the lawyers for the City of Kingston served an Application for Leave to Appeal to the Supreme Court of Canada on the Ministry of Environment (MOE) for the Province of Ontario and Pollution Probe. The Leave to Appeal documentation will be filed with the Registrar of the Supreme Court tomorrow. If the Supreme Court grants that leave, it would then hold a hearing into the matter at a later date.

The Leave to Appeal Application is from the May 12, 2004, judgment of the Ontario Court of Appeal, in which that court held it was not necessary to show that the deposit of a substance into water frequented by fish actually made the water harmful to aquatic life in order to obtain a conviction under the federal Fisheries Act. On that basis, the Court of Appeal restored the convictions on charges laid by the MOE against the City and Mirka Januszkiewicz, the City’s Director of Environmental Services at the time the charges were laid. Convictions arising from charges laid by a private citizen, against the City, were not restored.

The City’s expert witness evidence has been that the deposit of leachate into the Cataraqui River from the former Belle Park land fill site did not cause any harm to aquatic life in the river. The Crown led no evidence that the water became harmful to fish in the river. As a result, the City’s position throughout this case has been that where no harm has been done, it should not be convicted of a quasi-criminal offence.

The reasons of the Court of Appeal make it plain that it is that Court’s interpretation that a person can be convicted of depositing a harmful substance into waters frequented by fish in situations where the evidence makes it clear that no naturally occurring aquatic life form could possibly be harmed. That interpretation is contrary to the decisions of superior and lower courts in several other Canadian provinces which have held that actual or potential harm to aquatic life in waters into which the substance is deposited is a necessary element of the offence. It is also contrary to decisions of the Supreme Court of Canada which speak to the necessity for the prosecution to show actual or potential harm to aquatic life and which mandate that there be no penal consequences for trivial or minimal impairment of a natural environment.

The sentence imposed upon the City included an obligation to prepare a far-reaching, comprehensive and detailed plan for the “capping” of the site. The “cap,” if implemented, would cost approximately $13 million, to construct. In the City’s view, that would be inappropriate and a costly burden to taxpayers where the evidence is that there is no harm to the environment.

For those reasons, the City has determined it is appropriate and necessary to seek leave of the Supreme Court of Canada to appeal the Court of Appeals decision to uphold the convictions. The City of Kingston used the Belle Park site as a municipal landfill from 1952 until 1974, when it was closed. Throughout that period of time, the City’s use of the site complied with regulatory requirements that were in place.

The City remains committed to working with the Ministry of Environment and the community to manage the Belle Park site in a manner that is publicly acceptable, environmentally responsible and financially sustainable. In recent years, the City has spent over $2 million to install and upgrade specialized wells to capture groundwater before it flows into the river; clean up the shoreline; replace the soil cover; remove old, unused underground pipes; test poplar trees and natural wetlands as a long-term solution to naturally control groundwater flow and capture groundwater contaminants and conduct annual monitoring of the site and other studies.

For more information on the history of Belle Park and the remediation efforts to date, visit the City website at www.cityofkingston.ca/bellepark.

For further information contact: Peter Doody, Barrister and Solicitor, Borden Ladner Gervais (613) 787-3510