Reasons for Sentencing Decision

Kingston Belle Park:
Reasons for Sentencing Decision Wednesday, 24^th February 1999

BELL, J.P.: (Orally) This Court, in making a decision on the disposition of the matters before us, i.e. the seven convictions under section 36(3) of the Fisheries Act against the City of Kingston and against Mirka Januszkiewicz has taken full notice of previous judgements cited in the jurisprudence which learned counsel have presented for consideration.

The decision by Judge C.J. Stuart of the Northwest Territories Court in Regina c. Keno Hill provides a comprehensive outline of the factors which a trier of fact should consider in sentencing. They are as follows: (a) the nature of the environment affected; (b) the extent of the damage afflicted; (c) the deliberateness of the offence; and (d) the attitude of the accused.

Obviously, the mouth of the Great Cataraqui River in which the Belle Island Landfill site is located is a high use recreational area, used for boating, sailing, fishing, and other water activities and the City reaps a great economic benefit from the tourist trade. Both a commercial fishery operating in the area and extensive recreational fishing pose a concern for continuing pollution of the river. This the Court is convinced that this is a more sensitive and important environmental area which is worthy of greater protection and in which pollution should receive severe condemnation.

The extent of the injury inflicted on the water system is the subject of much speculation and great debate, especially in this Court. Expert witnesses on either side naturally disagree as to the harmful effects of such chemicals as iron, chromium, ammonia, PCBs and PAHs which emanate from the site.

However, the trial evidence is clear that leachate emanating from the seeps, springs and creeks of this site kill fish and other aquatic life.

A witness at this trial, Dr. Hayton, the Aquatic Biologist, after examining the evidence of his investigations stated that he intends to issue a caution order in 1999 with respect to fish consumption for these waters. His evidence suggests that the accumulation of at least one harmful chemical in the fish carcass caught near Belle Island forms part of the so-called toxic soup of chemicals seeping from the former landfill site.

Now, the extent of the damage is suggested to be more than just short-term and this is certainly the Court’s opinion. The 1994 Hill Report estimated that 200,000 litres a day leak off the site and certainly this is a persistent example of pollution.

Certainly, from the City’s point of view, the offence was not deliberate. A mistake in previous generation or generations is now being visited on the present Kingston taxpayers. However, the documented lack of cooperation with the Ministry of the Environment’s Abatement Branch with respect to a plan for the resolution of the pollution problem is a significant point the Court must consider under the fourth factor, attitude.

Now, Judge Stuart, in Keno Hill, and Judge Ormiston in the Bata case recommends that when dealing with corporations convicted of environmental offences, the Court should also consider the following: (1) the size and wealth, nature of operations and power of the corporation; (2) the extent of attempts to comply; (3) remorse; (4) profits realized by the offence; (5) the criminal record or other evidence of good character.

Although the Greater City of Kingston with a population of approximately 150,000 can be considered a wealthy municipality, the Court has no intention of applying the maximum fine criteria which would range in the $2 million range. That is seven counts of $300,000 each. So, that is not the Court’s intention.

The compliance issue, in the Court’s opinion, receives a failing grade. Previous to the charges and despite ample evidence that the problem was known to the City officials, very little was done. A paltry few hundred dollars was spent in monitoring data and these reports were ignored.

After the investigation was launched by the Ministry of the Environment in early 1997, Malroz Engineering was retained to monitor studies and contain the leachate and report. The City assesses its costs for this at one and three-quarter million dollars. However, the Court, during the sentencing hearing, called Mr. Rose as a witness. Examination of Mr. Rose reveals that the fix is temporary in nature. If the pumps are turned off, the leachate will continue to outflow into the river.

When the Court compares this aspect to other cases, that is other jurisprudence where the fine was moderate, but the compliance, so to speak, was permanent, in other words, the fix was permanent, the rationale for a higher fine and a costly order gains in credence.

The examples of the case law that was referred to the Court in which it considered in this matter were Keno Hill, Bata, Cotton Felts, Township of Charlottenberg, Nitrochem, Amoco, Ottawa-Carleton, and New Brunswick Electric Power Commission.

The characterization of the Corporation’s remorse for the pollution incident is widely interpreted by many jurists: from a guilty plea as eligibility for a discount fine concept, to the accepted view that all parties before the law are eligible to a full and vigorous defence with a penalty based on the above-noted factors.

The hope that after conviction some measure of cooperation from the City would be forthcoming was dashed during the sentencing hearing when the full and vigorous defence aspect based on the principles of denial and avoidance was again promulgated.

Even the Crown’s suggestion of a charitable donation in lieu of a fine was brokered by a complex formula that while workable, would require some future supervision and may be open to misinterpretation.

Several Judges in their decisions, have expressed the opinion that an appearance by a senior executive or director (read politicians for municipalities) is a good indication of such remorse. Counsellor Herlihy commented that no such individual appeared at this trial or the sentencing hearing.

The profits realized from avoidance, which was another topic that Judge Stuart and Judge Ormiston pointed out, are difficult to assess in this case, but the postponement of a permanent solution only continues the pollution and postpones that which may be inevitable.

A previous conviction of the City on an environmental offence goes to the criminal record side of the ledger in assessing penalty. So the Court, for the reasons cited above, particularly the perceived lack of remorse and the lack of compliance, and after considering all the testimony in both the trial and sentencing hearing and weighing the arguments of all counsel, referring to their jurisprudence case law, the following dispositions are made as to sentence.

On counts one, two, three, and four of the information by Janet Fletcher, as the informant, the prosecution in this case was the Sierra Legal Defence Fund, a fine of $30,000 on each count is registered and pursuant to section 62(1), paragraph (1) and (b) of the Fisheries Act, one-half of the fine is payable to the person, the informant, ie. Janet Fletcher and one-half paid to the Minister, the Minister of Finance in this case for the Canadian Government. The amount totals $120,000 is exclusive of any additional levies, taxes, or surcharges by the government and the City has ninety days to pay.

The Court chooses this venue to reinforce the intent of the legislators to encourage public participation in the protection of community interests and to assess a fine consistent with the severity of the criminality and an indication of the general deterrence. It should be noted that the total fine represents only ten percent of the maximum fine for a first offence.

Further, it is ordered that the City, the defendant, forward to the informant, Janet Fletcher, fifteen copies of the final report by Malroz Engineering no later than the 31^st of October 1999 or fifteen days after its presentation to City council, whichever date is soonest and all expenses related to the said transaction are to be borne by the City.

The Court declined to order the other suggested order that the Sierra Legal Defence Fund made on behalf of Janet Fletcher.

On counts two, three, and four of the information by Neil Rickey on behalf of the Ministry of the Environment, the Crown, in this case, a fine of $10,000 is assessed for each count, for a total of $30,000 exclusive of any surcharges and ninety days to pay.

With respect to the order, and there will be an order in this respect, and I would like to confer with counsel before dealing with that part of the sentence.

In the matters of conviction against Mirka Januszkiewicz on counts two, three and four, again of the information by Neil Rickey on behalf of the Ministry of the Environment, the Crown, in this case, a suspended sentence in all three charges. Correctly or incorrectly, it is the perception of this trier of fact that the authors of this misfortune, be they senior administration of the City of the applicable politicians of the era are not before the Court. Mirka Januszkiewicz, is as obvious in the infamous long-term management plan, Exhibit 33 of the trial, was not on par with the other senior bureaucrats, in the Court’s estimation, who authored this document. Thus, the Court feels that although not entirely blameless, Mrs. Januszkiewicz was in the wrong place at the wrong time and the Court chooses not to add insult to injury by way of a fine, probation or order.

Getting back to the order under the Ministry of the Environment (MOE) charges, the Court will make the order of Part One and Part Three of the suggested MOE order. Part Three, “Within three months provide the Ministry with a rationalized long-term site monitoring program indicating whether more or fewer monitoring wells will be required and whether greater or lesser frequency of the sampling will be necessary. The program description should also indicate how future uses of the site may be affected by the presence of contaminants disclosed on sampling and analysis.” That seems very clear.

The first one, which reads, “Within three months provide to the Ministry for a plan of the capping of the site in accordance with current standards of practice, this plan shall involve the evaluation and upgrading of the current cover at the site by the placing of impervious materials such as clay to an adequate depth of the site maintenance program involving continuous evaluation of the integrity of the cap and an inspection program for any seeps and a contingency plan to deal with any seeps that are found. A surface water management plan addressing both the cap’s integrity and the flow quantity and directions of watershed by the cap and a detailed plan for controlled venting of gases generated from the landfill beneath the impervious cover.”

That does not seem clear to me, to the Court, and Mr. Herlihy could you comment on the fact – is this just to provide the Ministry with a plan of capping, or is this actually to do the capping?

MR. HERLIHY: The suggestion, your Worship, was simply that they provide the plan. The reason for this is that for one thing, implementation of the plan might take a longer period of time than this Court could order. The second reason is that by providing the plan, it does provide the opportunity then for the Ministry and the City to have contact and fine-tune the details of it. For example, if they would submit a plan, it’s probably beyond our mutual abilities to say that the clay cover should be six inches or six feet or something in between, those sorts of details. So, if the City submits a plan and wants to put a cover of too shallow a depth, the Ministry can then say to them, well no, at least they’re in dialogue. It won’t be enforceable through you, but at least they’re in dialogue, the plan is there and we’re moving in that direction. There would be a lot of other details involved with it. For example, the sloping of the land, the placement of vents for gas and things like that which are perhaps matters of detail that the Court wouldn’t be able to deal with, given the quality of evidence before it on the issue. But, the need for the cap seems justifiable.

THE COURT: There was some suggestion in the sentencing hearing, the two days, that the City did not know whether it was just a plan to cap or whether they suggesting it be implemented. So, we have had that sorted out and clarified. Now to the City, is three months a reasonable time frame for this? Maybe you would like to consult with Mr. Rose.

MR.DOODY: Your Worship, in my submission, the evidence is before you. I have two things to say. I’m not clear as to what it is the Court is ordering and I will look to the precise wording of the Court order rather than any assurances Mr. Herlihy can give me as to what the Court order means because I need to know. My client needs to know what the order means and in order to understand that, I need to see and read the order and not hear what Mr. Herlihy said because it’s your order, Your Worship.

The second thing I have to say is the evidence before you on this trial and the sentencing hearing was that Mr. Rose said that his report could be complete, I believe, by early to mid-summer – it was his evidence and I would thought that that report from the evidence that the Court’s hear would be a pre-condition to preparing a capping plan. So, all I can say to you, Your Worship, is the evidence before you is what it is and Your Worship will have to deal with that. On my submission, there’s no evidence that three months is appropriate. This was asked for by my friend. But the time for submissions is over, Your Worship, and I’m interested in hearing your order with the greatest of respect.

THE COURT: Well, this shall read then, within twelve months, provide the Ministry with a plan for the capping of the site in accordance with current standards of practice, period. Again, for the clarification, this is a plan. This plan shall involve the evaluation and upgrading of the current cover at the site by the placing of impervious material such as clay to an adequate depth, a site maintenance program involving continuous evaluation of the integrity of the cap, that is, there is a plan for the maintenance program, an inspection program for any seeps and a contingency plan to deal with any seeps that are found, a surface water management plan addressing both the cap’s integrity and the flow quantity and directions of water shed by the cap and a detailed plan for controlled venting of gases generated by the landfill beneath the impervious cover. So, those are the two parts of the Ministry order which the Court chooses to make an order on.

MR. DOODY: Just so that I understand it, Your Worship, I hope it’s clear. Is it your order that the City cap the site…

THE COURT: No.

MR. DOODY: … in other words, if the City doesn’t cap the site, are they in breach of your order?

THE COURT: Within twelve months, they provide a plan for capping the site. It is a plan for capping the site. This Court is not making an order to cap the site. The Court would like to, but it is beyond the capabilities of the Court to do such a thing. After hearing all the evidence through the trial, it is much more complicated than one would believe.

There are no other matters before the Court. We are adjourned.