Dec 3 2003

Kingston Whig-Standard   December 3/2003

Precedent at stake in Belle Park case

Janet Fletcher, fresh off a plane from Nova Scotia, sat in the back of a Toronto courtroom yesterday, watching as lawyers fought the latest skirmish in a marathon legal battle over Kingston’s leaky old dump. It was seven years ago, almost to the day yesterday, when Fletcher – then an Inverary resident – collected the first samples of liquid seeping into the Cataraqui River from Belle Park, site of the former municipal dump.

Analysis of those samples – ground water runoff from the landfill underneath the golf course – led to charges against the City of Kingston under the federal Fisheries Act, laid both by Fletcher and the Ministry of the Environment.

The trial led to seven convictions, and what was at the time the largest fine levied in Canada – $150,000.

Yesterday, lawyers began presenting arguments seeking to overturn a June 2002 Superior Court ruling that negated those seven convictions and ordered a retrial.

At stake is a precedent that could lead to the dilution of the federal Fisheries Act, making it more difficult to prosecute polluters in Ontario.

The appeal, before a three-judge panel of the Ontario Court of Appeal, is shaping up to be a question of which laws – provincial or federal – will take precedence.

The crux of the matter, said Jerry Herlihy, lawyer for the Ministry of Environment, is whether criteria from the Ontario Water Resources Act should be a factor in deciding a conviction under the federal Fisheries Acts, under which the charges were originally laid.

Herlihy told the court yesterday that the two Acts have different purposes.

“The Fisheries Act is a pollution prevention scheme,” he said. “Zero discharge is the goal. The OWRA was created as effect-based statute. At least a capacity to impair the water must be demonstrated by the substance in question.”

Under the Fisheries Act, establishing the pollutant as a “deleterious substance” is enough to earn a conviction. Under the OWRA, the substance must be deemed either “inherently toxic” or the discharge of that substance must have the potential to impair water quality.

The distinction is important.

Under the Fisheries Act, the prosecutor is only required to prove that the substance in question is deleterious. Under the OWRA, if the substance in question is not “inherently toxic,” then it must be proved that the substance – the pollutant – had a detrimental effect on the water to which it was introduced – often a difficult task.

Further clouding the water, so to speak, and also at the centre of the morning’s arguments, was the definition of the terms.

There’s no actual legal definition for a substance that is “inherently toxic.”

And the definition for a deleterious substance is itself a tautology.

That part of the Fisheries Act reads:

” . . .deleterious substance means

a) any substance that, if added to any water, would degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water . . .”

To wit: A deleterious substance is one that has a deleterious effect on fish.

In such a case, Herlihy argued, the appeal court judges must allow themselves to be guided by the precedents set in other courtrooms.

First, he said, all four of the leachate samples taken by Fletcher, and three of the four samples taken from Belle Park by the MOE failed the acute lethality test. Trout exposed to the leachate died.

That in itself, claimed Herlihy, is enough to establish the leachate from Belle Park as a deleterious substance regardless of its components.

Central to Superior Court Justice David McWilliams’ decision in June to overturn the convictions was the question of what the legal test to determine what a “deleterious substance” is under the federal Fisheries Act and whether the justice of the peace at the original trial applied the correct test.

“In order to convict, it was necessary to determine not just that leachate may be harmful to fish, but whether the addition of leachate to the Cataraqui River was actually harmful to fish in the river,” according to City of Kingston lawyer Peter Doody.

That is not the case, argued Herlihy yesterday.

Citing a 1979 British Columbia Court of Appeal case involving MacMillian Bloedel, Herlihy argued that the judge there ruled that it was not incumbent on the prosecutor to determine that a specific substance in a specific body of water had a deleterious effect. It was ruled sufficient, said Herlihy, to prove that the substance added to any water is deleterious.

“It’s not the effect on the receiving stream that’s important,” he said. It’s the substance itself.”

In summing up, Herlihy said he could find no justification for creating a legal precedent that would dilute the Fisheries Act by judging a pollutant not on its nature, but by its effect on the receiving waters.

“If it’s a bad thing, don’t put it in there,” he said later. “Even if it’s a burp in Lake Ontario. It adds up. It’s a death by a thousand cuts.”

Robert Wright, counsel for Janet Fletcher reiterated part of Herlihy’s argument: that once the leachate drawn from Belle Park killed fish in the lab – thereby failing the acute lethality test – there was no more proof necessary for conviction.

But he also went one step further and brought up the subject of PCBs.

The presence of PCBs was only discovered when the City of Kingston began testing leachate in wells that had been built to contain some of the runoff from Belle Park.

Their existence was confirmed during the cross-examination of a defence witness.

Wright argued that if it were necessary to judge the case under the criteria of the OWRA, the presence of those PCBs would automatically qualify the leachate as “inherently toxic.”

“A substance that is acutely lethal or inherently toxic qualifies as a deleterious substance,” he said. “And in this case, we have one of each. We have the ammonia [in the leachate] which is acutely lethal, and the PCBs are inherently toxic.”

He stumbled slightly when Madam Justice Kathryn Feldman questioned him on whether evidence had been introduced in the original trial attesting to the inherent toxicity of PCBs.

“There’s a difference between a judge saying PCBs are inherently toxic and an expert saying that,” she said.

“The trial judge states: ‘Expert witnesses on either side naturally agree as to the harmful effects of PCBs emanating from the site.'”

Eventually, Wright cited a Supreme Court case involving Hydro Quebec, in which the judge ruled that the fact that PCBs are highly toxic should not be questioned.

But the problem is clear; with no unambiguous definition of “inherent toxicity,” there exists no criteria for legally establishing it.