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ENVIRONMENTAL LIABILITY - Regulatory offences and prohibitions - Water environmental offence - Destruction of fish habitat - Penalties, remedial orders and sentencing principles

Wednesday, January 24, 2018 @ 8:32 AM  

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Application by Rio Tinto Alcan Inc. (Rio Tinto) for leave to appeal a decision of a summary conviction appeal court judge dismissing its appeal from convictions under the Fisheries Act for unlawfully lowering the water level in a river that resulted in destruction of fish habitat and unlawfully destroying fish by decreasing the water supply to the Kemano River. Application by the Crown for leave to appeal the order of the summary conviction appeal court setting aside an order made a trial under s. 79.2(f) of the Fisheries Act requiring Rio Tinto to pay the Crown $125,000 to promote the proper management and control of fisheries or fish habitat. Rio Tinto operated a hydroelectric power station near the Kemano River. In order to facilitate the urgent repair of a “hot spot” on a BC Hydro transmission line, Rio Tinto rapidly reduced the volume of water flowing through the power station and into the river. Although the rapidity of the ramp down helped protect against the dewatering and consequent loss of eulachon eggs in the river, the rapid decrease in water levels led to juvenile salmon mortality. At trial, Rio Tinto relied on the defences of due diligence, necessity, ministerial authorization, and officially induced error. The summary appeal court judge (appeal judge) found it was reasonable for the trial judge to conclude that the Fisheries Department official did not authorize the destruction of fish or fish habitat and that the evidence supported the trial judge’s finding that Rio Tinto did nothing to minimize the impact of the ramp down on salmon fry. The appeal judge found that although Rio Tinto was in a difficult position, it might have escaped prosecution had it taken some steps to mitigate the impact on salmon fry. Finally, the appeal judge found that the trial judge’s factual findings in relation to the defence of due diligence were supported by the evidence and not open to attack on appeal. The appeal judge allowed Rio Tinto’s sentence appeal on the ground that the sentencing judge’s reasons did not reveal how the sentencing judge balanced the relevant factors. The appeal judge also found that, based on the sentencing judge’s factual findings and assessment of the applicable sentencing principles, the sentencing judge should have considered Rio Tinto’s ability to pay.

HELD: Applications dismissed. Even if some of Rio Tinto’s proposed grounds of appeal raised questions of law, leave to appeal was not warranted as these grounds did not raise broad issues of public importance requiring the attention of the appeal court and they had not been shown to have a reasonable possibility of success. Rio Tinto had not established that a question of law arose in relation to the defence of necessity. Neither the trial judge nor the appeal judge proceeded on the footing that it was unnecessary to analyze the defence of necessity as a consequence of the rejection of Rio Tinto’s defence of due diligence. The broader issue of the interaction between the defences of necessity and due diligence did not arise squarely on this appeal. The defence of officially induced error raised, at best, a question of mixed fact and law. It did not raise a question of broad importance requiring the attention of a division of the appeal court. The law on officially induced error was settled and the proposed ground of appeal turned on findings of fact specific to this case. With respect to the Crown’s application for leave to appeal, the appeal court had no jurisdiction to hear an appeal from a summary conviction proceeding on the sole ground that the sentence was unfit, as the fitness of a sentence was not a question of law alone. The appeal judge’s determination to intervene with sentence was driven by considerations specific to the case. The summary conviction appeal judge’s reasons did not conflict with the established principle that ability to pay was relevant to sentencing for environmental offences.

R. v. Rio Tinto Alcan Inc., [2017] B.C.J. No. 2612, British Columbia Court of Appeal, G.J. Fitch J.A.(In Chambers), December 21, 2017. Digest No. TLD-January222018006