Nov 9 2001

Kingston Whig-Standard

Crown argues for $240,000 in fines
by Sue Yanagisawa

All the evidence is in on the court challenge to the Belle Park pollution convictions registered against the City of Kingston and Mirka Januskiewicz, one-time director of environment, almost three years ago.

Crown lawyer Jerry Herlihy is asking appellate court judge Mr. Justice David McWilliam to increase the city’s total fines from $150,000 to $240,000.

Herlihy also argued that Januskiewicz’s suspended sentences should be overturned in the interests of deterrence. In light of her earnings at the time of the trial, however, Herlihy has asked the judge to consider fines of $2,500 and community service on each of her convictions.

Her lawyer, Harry Poch, argued that the suspended sentences should stand. If Mr. Justice McWilliam disagrees, however, Poch urged him yesterday to consider fines of no more than $500 on each conviction.

At issue is whether Belle Park garbage juice going into the Cataraqui River in 1996 and 1997 was “a deleterious substance” under the Fisheries Act.

The appeal by the city and Januskiewicz attracted the Crown’s counter-appeal.

Lawyers Poch and Peter Doody, on behalf of the city, contend that all of the convictions should be set aside, acquittals substituted and the trial judge’s order for a capping study should be vacated.

THREE CONVICTIONS

In the city’s case that includes three convictions out of four charges prosecuted by Herlihy on behalf of the Ministry of Environment and four convictions on charges laid by local environmental activist Janet Fletcher and prosecuted privately.

Fletcher didn’t counter-appeal. Januskiewicz was only included in the four ministry charges and convicted, like the city, on three of them.

Following his deliberations, Mr. Justice McWilliam has the following options: He may allow the convictions and sentences to stand; he may set the convictions aside and substitute acquittals; he may set the convictions aside and give the Crown and Fletcher the option of a new trial; or he could allow the convictions to stand and alter the penalties.

He isn’t required to set a date for his decision. Herlihy said he wouldn’t expect one for at least six months. Doody believes a decision might be handed down in three months.

The appeal by the city and Januskiewicz is based on the contention that the decision of the original trial judge, Justice of the Peace Jack Bell, was fatally flawed because he didn’t properly consider all of the scientific evidence.

Their defence was based on an elaborate theory about laboratory testing having changed ammonia in the water samples collected from Belle Park – even though the testing was properly conducted.

Those samples, collected in December 1996 by Fletcher and in February and May 1997 by the Ministry of Environment, were tested on rainbow trout and water fleas in a commercial laboratory. The animals died and that led to charges being laid under the Fisheries Act.

Doody argued that the prosecution was unable to prove beyond reasonable doubt that the seep-water, as collected, had killed the organisms. Garbage juice isn’t by definition a deleterious substance and allowing it to run into the Cataraqui River isn’t a crime under the Fisheries Act unless its deleteriousness can be proven.

DID NOT AGREE

Doody noted yesterday that the justice of the peace wrote that he did not agree with the defence’s arguments.

“That is not the [legal] test,” Doody told Mr. Justice McWilliam. “He doesn’t have to agree with the defence arguments to conclude that the defence arguments produce a reasonable possibility” that the city and Januskiewicz are not guilty.

Doody also suggested that “the prosecution … is trying to retry the case,” particularly with regard to the discovery of polychlorinated biphenyls (PCBs) after the charges were laid in 1997.

The city has been pumping water out of its municipal golf-course to prevent leachate percolating up from the old dump ever since the first charges were laid. Doody acknowledged that the leachate is now treated and the resultant sludge is sold for agricultural purposes.

But that has no relevance to Fisheries Act charges, he said, because “sludge on farmers fields doesn’t go into fish.”

In his submissions, Herlihy, disputed claims by the city and Januskiewicz that the Crown needs to demonstrate impairment to the river by the presence of Belle Park.

“If the law turns out to be that acutely lethal substances are not inherently toxic,” he told the judge, “the Crown will have to adjust its approach” in future