June 11 2002

Kingston Whig-Standard

Belle Park pollution convictions overturned
by Sue Yanagisawa

Three years after it was fined $150,000 for allowing garbage juice to flow into the Cataraqui River, the City of Kingston has had its seven Fisheries Act convictions overturned.

The city appealed the convictions in November before Mr. Justice David McWilliam of the Superior Court, who has just released his decision and ordered a new trial.

He also granted a Ministry of Environment counter-appeal on one charge where an acquittal was registered for the city and on the suspended sentences given the city’s former director of environment, Mirka Januskiewicz.

Local environmentalist Janet Fletcher, who started the legal battle in March 1997 when she laid four charges against the city under the Fisheries Act to force cleanup of the old dump site under Belle Park, was disappointed by the turnaround.

“I think I will be dead before this thing ever clears the courts,” she said yesterday.

“There has to be a more speedy remedy for this sort of thing but I, for the life of me, don’t know what it is.”

It isn’t assured that the charges will have to be retried, repeating a journey through the courts that took almost three years the first time, because the appeal may be appealed.

Lawyer Jerry Herlihy, who represents the Crown on behalf of the Ministry of Environment, said the ministry is considering whether to appeal the appeal decision.

Sierra Legal Defence Fund lawyer Rob Wright, who represented Janet Fletcher at the first appeal in November, said “we’re just kicking that around as we speak.”

The ministry and Fletcher have 30 days in which to apply to the Ontario Court of Appeal in Toronto, Wright said. Both hope to reach a decision by the end of this week on whether they’ll be making that application.

Lawyers involved in the case agree that the central issue in Mr. Justice McWilliam’s decision is 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 one.

In a release issued by the city’s legal services yesterday, the city claims that the appeals judge “held that 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.”

That was an argument advanced by the city’s lawyer Peter Doody, during the trial and appeal.

But Wright, after reading Justice McWilliam’s decision, said “I don’t think that’s what he says.”

Lawyer Mark Mattson, who assisted Sierra Legal Defence at trial, agreed. “Certainly, the judge didn’t find that there should be an acquittal here.”

Mirka Januskiewicz’ lawyer, Peter Poch, thinks it’s close enough to an acquittal. Reached in Toronto, he said “obviously Mirka’s delighted by the result. The court, on appeal, adopted all our positions.”

Justice McWilliam’s decision holds that the justice of the peace on the original trial was bound by an Ontario Water Quality Act decision that requires the court to consider actual impairment to water quality, notwithstanding that the Fisheries Act is federal.

“There’s certainly a real interest in this case because of the federal implications,” Wright said.

He believes the appeal decision is “a difficult one for the continued enforcement of the Fisheries Act, if it isn’t clarified,” and is “at odds with the rest of the country.”

If the Crown and prosecution lawyers don’t get it overturned, they’ll have to consider a new trial.

“I guess the onus is on the Crown to move it along,” Herlihy said.

Mattson said he’s prepared to do it all again if necessary. On a retrial, he suggested the prosecution might even expand its case by calling additional evidence on the PCBs [polychlorinated biphenyls] discovered at the site only after the trial was underway.

The decision is disheartening, Mattson said, but he doesn’t believe it’s been a waste of time.

“I know they’ve spent a great deal of money with respect to that site since the charges have been laid,” he said.

He said the city has taken care of a lot of the visible problems, but added that he doesn’t know if the site continues to contaminate the inner harbour.

Paul MacLatchy of the city’s environmental department said the appeal decision “doesn’t really change the direction that we’re going from a technical and operations perspective.”

The city is still pumping excess water out of the park and trucking it to Kingston’s water treatment plant.

The site is monitored weekly to check for new leaks, said MacLatchy, and the city has put in test sites of poplar trees along the west and southwest shorelines and is hoping to develop a wetland buffer along the shore.

“The poplar tree cap holds a lot of promise for doing what the pumps are doing right now,” he said.

monitoring

In the meantime, he estimates the city is spending “almost half a million dollars a year operating that site,” about $350,000 for the pumping and $150,000 for monitoring.

The only implications he sees in the appeal decision for his department is “it will hopefully serve to eliminate some of the uncertainty that was there prior.

“So that will allow us to proceed implementing a long-term management solution for the site a little more quickly, I think, now that we have a decision on that appeal.”

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