Nov 8 2001

Kingston Whig-Standard

Defence lawyers dispute city’s attack on JP
by Sue Yanagisawa

The City of Kingston and former director of environment Mirka Januskiewicz believe the wrong conclusions were reached when they were convicted on pollution charges, but Crown lawyer Jerry Herlihy told the judge hearing their appeal yesterday that the decision should stand because Justice of the Peace Jack Bell’s “conclusions are not unreasonable or unsupported by the evidence.”

Herlihy acted for the Crown in the 1998 trial over garbage juice escaping from Belle Park into the Cataraqui River.

Januskiewicz is appealing only her convictions. The City of Kingston is appealing $150,000 in fines, as well as Bell’s orders for monitoring and inspection at Belle Park and preparation of a plan for sealing the property against future leaks.

SEVEN CHARGES

The city is also appealing convictions on seven charges under the Fisheries Act. Three were laid by the Environment Ministry and four by local environmentalist Janet Fletcher. Her charges were prosecuted privately with legal expertise provided by the non-profit Sierra Legal Defence Fund.

Fletcher’s charges pre-dated the ministry’s by more than six months and spurred their official investigation in February and May 1997.

By then, she had initiated action against the city, after testing found that rainbow trout fingerlings died in an hour to 75 minutes when placed in water samples collected at Belle Park in December 1996.

Kingston’s lawyer, Peter Doody, has argued that expert witnesses he called during the trial should have raised a reasonable doubt that the testing lab may have altered the ammonia balance in the water samples, thus contributing to the deaths of fish and water fleas.

It follows, according to Doody, that the justice of the peace should not have convicted his client, since the prosecution did not prove the leachate was deleterious on the site.

Herlihy countered that Bell was “amply justified,” not only in characterizing the defence evidence as highly theoretical, but also in determining that it “lacked credibility.”

He told Mr. Justice McWilliam yesterday that the justice of the peace was “alert to the fact that the argument is not about ammonia, it’s about leachate, all of it.”

Herlihy also disputed Doody’s contention that the prosecution was required to show impairment to the river from leachate leaving Belle Park in order to support a conviction.

‘PREVENTATIVE’

He argued that the Fisheries Act suggests “a preventative, cautionary approach to water protection,” prohibiting the placement of harmful substances in waterways regardless of the ability to prove specific damage.

He told the judge, “I would think anything that’s acutely lethal to aquatic life should be considered inherently toxic.”

Robert Wright, one of two Sierra Fund lawyers acting in the appeal, observed that there were some differences between the testing done for the ministry and that undertaken for Janet Fletcher.

He described hers as “barebones testing,” conducted solely to determine whether the seepage killed aquatic organisms.

No chemical analysis had been made. He attributed the reduced scope of her investigation to financial limitations.

WITHOUT ANALYSIS

Even without chemical analysis, he said, the court could infer from the colour of the samples collected in December that they contained more than ammonia.

Notations that accompanied each of them record orange-brown staining; Wright noted that ammonia is colourless. “When we did our testing, we weren’t concerned whether it was ammonia or iron or oil that killed the fish,” he told the judge.

He also noted that one of the technicians testified at trial that chemical analysis was unnecessary “because it was killing them so quickly.”

Wright also disputed Doody’s suggestion that there was an abuse of process when Fletcher assigned her share of the fines to pay for prosecuting the case. He said the whistleblower’s section of the Fisheries Act is really about the “question of access to justice and economy and efficiency of the court process.”

The appeal continues today at the Frontenac County Court House.

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