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ENVIRONMENTAL LIABILITY - Water environmental offence - Discharge of pollutant

Thursday, January 31, 2019 @ 8:47 AM  


Appeal by the Crown from a $5,000 fine imposed for impairing the water quality under the Ontario Water Resources Act. The respondent pleaded guilty. It had released fertilizer into the water stream over a two-week period. The trial judge imposed a $600 fine which was increased to $5,000 on appeal. The minimum fine under the Act was $25,000. The trial judge found there were exceptional circumstances in this case because of the nature of the offence and the respondent’s immediate actions in light of the offence that warranted a fine lower than the statutory minimum. The appeal judge also concluded that there were exceptional circumstances that could properly found relief from the minimum fine prescribed. Although he identified two aggravating factors, the impairment of water quality ¬and the concerted action the respondent took in risking the release of fertilizer into the water stream over a two-week period, the appeal judge concluded that imposing a $25,000 fine in the circumstances of this case was unfair. The appeal judge stated that the Crown was seeking a significant sentence for an offence of very modest proportion, an offence that it might never have been able to prove on a contest but for the guilty plea of the defendant. The appeal judge considered that the guilty plea on the facts admitted was a substantially mitigating circumstance.

HELD: Appeal allowed. The sentence was varied to the minimum fine of $25,000. The appeal judge erred in exercising his discretion under s. 59(2) Provincial Offences Act in a manner that undermined the purpose of the Ontario Water Resources Act. The discretionary power in s. 59(2) must be applied with appropriate restraint, in order not to undermine provincial legislative policy that emphasized deterrence governing public welfare offences. The appeal judge erred in concluding that the circumstances of this case were exceptional and that it would not be in the interests of justice to impose the minimum fine. His error flowed from his conclusion that the interests of justice meant no more than fairness. Unfairness was not the test under s. 59(2). His reliance on the idea of fairness led him to characterize the respondent’s offence as minor and relatively insignificant, a characterization that was not open to him in light of the Legislature’s determination that a minimum fine of $25,000 should be imposed for first-time corporate offenders. The appeal judge also erred in concluding that the respondent’s guilty plea mitigated the minimum fine. Guilty pleas could not be considered exceptional circumstances, nor could the interests of justice be invoked to permit guilty pleas to undermine a minimum fine regime. There was no basis for concluding that the interests of justice justified granting relief from the minimum fine prescribed in these circumstances.

Ontario (Ministry of the Environment, Conservation and Parks) v. Henry of Pelham Inc., [2018] O.J. No. 6434, Ontario Court of Appeal, D. Watt, G. Huscroft, J.M. Fairburn JJ.A., December 7, 2018. Digest No. TLD-January282019007