Her Majesty The Queen as Represented by the City of Calgary Respondent - v. -, 2014 ABQB 645

Court of Queen ’ s Bench of Alberta Citation: R v 1023803 Alberta Ltd, 2014 ABQB 645 Date: 20141023 Docket: 111432001S2 Registry: Calgary Between: Her Majesty The Queen as Represented by the City of Calgary Respondent - and - 1023803 Alberta Ltd, Brookfield Properties Management Corporation, and Brookfield Properties Ltd. Appellants _______________________________________________________ Written Reasons for Decision of the Honourable Mr. Justice M.

David Gates _______________________________________________________ Introduction [ 1 ] The Appellants, 1023803 Alberta Ltd, Brookfield Properties Management Corporation, and Brookfield Properties Ltd., (“Brookfield”) (collectively, “the Appellants”) appeal their conviction on Count 1 of the three-count information by the Honourable

Judge Van Harten on December 5, 2013: 2013 ABPC 329 (“Reasons”). The Appellants owned and/or operated Fifth Avenue Place, a high-rise office building in downtown Calgary. They were convicted under s 67(4) of the Safety Codes Act , RSA 2000, c S-1, for failing to immediately notify the fire department of a diesel fuel spill which occurred on the roof of the building, as required by Division B,

Part 4, Sentence 4.1.6.4(1) of the Alberta Fire Code, 2006 (“ Fire Code ”) and were each fined $10,000 plus a 15% victim surcharge. Background [ 2 ] The Crown led evidence at trial through an Agreed Statement of Facts, an Agreed Exhibit Book and the vive voce evidence of six witnesses, two of whom were employees of Brookfield.

As set out in paragraph five of the Agreed Statement of Facts, by 4:00 p.m. to 4:30 p.m. on the date in question “a spill of diesel in excess of 50 litres occurred on the roof of the 34th floor of Fifth Avenue Place…” In the following paragraph, it was agreed that the fire department was notified of the spill by way of a telephone call received at 6:34 p.m. that same day. [ 3 ] In his Reasons, the Learned Trial Judge found that the Appellants had conceded that the spill was in excess of 50 litres.

He also found that the fire department’s incident report estimated that the volume of the spill was about 300 litres, and that David Sylvester, the Operations Manager at Fifth Avenue Place, “testified that based on his observations on the roof and his knowledge of the pumping system, the spill was somewhere between 0 and 900 litres, 900 litres being the ‘worst case scenario’”: (Reasons, para 52). He went on to find that the Appellants did not report the spill “immediately” to the fire department as required by the Fire Code . [ 4 ] A review of the record shows the events leading up the charge are as follows.

Facts [ 5 ] On June 21, 2011, a new 900 litre diesel fuel tank was linked or tied-in to two existing diesel fuel tanks on the 34th floor of Fifth Avenue Place. This new tank was the fuel reservoir for a new generator installed on the 36th floor of the building. Stuart Olson Dominion Construction Ltd (“Stuart Olson”) was hired to install the new diesel fuel day tank and the new generator. [ 6 ] Between 1:15 and 1:30 p.m. on June 21, 2011, plumbers employed by Stuart Olson completed the tie-in between the new day tank and the existing fuel supply system.

A lock-out mechanism was installed to the pumps which otherwise brought diesel fuel from the supply fuel tanks located in the level one (P1) parkade of the building. Between approximately 2:00 p.m. to 2:45 p.m. testing was undertaken of the new piping construction. No leaks were identified and the test was completed at approximately 2:45 p.m. As found by the Learned Trial Judge, the new tank was taking in fuel from the other tanks. The new tank filled up and fuel began spilling from the vent pipe in the tank onto the roof of the building. [ 7 ] At about 4:00 p.m., the Operations Supervisor for Brookfield, Mr.

De La Hey, discovered the building operator for Brookfield, Mr. Soo, investigating a diesel fuel spill on the 34th floor of the building. Mr. De La Hey directed Mr. Soo to contain the free-flowing diesel fuel and to block the rooftop drains. De La Hey described the area where the diesel had spilled as measuring approximately nine square metres, within which the roof ballast and river rock was wet with diesel. He further indicated that he could smell the diesel and that it was dripping from the vent pipe.

His evidence was that he did not know how much fuel was there as there was “no way of knowing”. [ 8 ] Brookfield employees, including Mr. De La Hey and other operators, worked for approximately 40 minutes, until shortly after 5:00 p.m. to contain the spilled diesel fuel. Diesel fuel was collected into three, forty litre pails, a small garbage pail and was contained in at least two, two-foot by one-inch deep pools in the rooftop substrata created by Mr. De La Hey and Mr. Soo by pulling back the gravel and cutting into the insulation to create areas for the spill to pool in. [ 9 ] At approximately 4:30 p.m., Mr.

De La Hey contacted the Operations Manager, Mr. Sylvester, advising of the diesel fuel spill on the 34th floor of the building. Mr. Sylvester was responsible for the overall operation and maintenance of the property. [ 10 ] At trial, Mr. Sylvester acknowledged that he was not specifically aware of the Fire Code requirement to immediately notify the fire department of spills or leaks in certain circumstances. He also stated that he thought he would have gone through the Fire Code requirements at one point or another, he did not recall having seen the Explanatory Material directive in

Part 4, Division B, Sentence 4.1.6.4 to first contact emergency responders for “any leak or spill that requires immediate action to lessen the risk of fire or explosion.” [ 11 ] Mr. Sylvester was at his residence when he received the call from Mr. De La Hey about the spill. It was approximately 4:30 p.m. and he had just arrived home. He testified that during this initial phone call he asked how much diesel had been spilled, but Mr.

De La Hey was uncertain as to the amount. [ 12 ] He immediately returned to the building, arriving at approximately 5:15 p.m., which was longer than his average commute due to the fact that it was rush hour. He received no updates as to the status of the spill during this 45 minute period.

His evidence was that wanted to make telephone calls regarding the spill but refrained from doing so as a result of the distracted driving law. (I note in passing that this new provincial legislation did not come into effect until September, 2011.) When he arrived at the building, he spent approximately 15 minutes reviewing the Work Place Hazardous Materials Information Systems (WHIMS) binder and the Brookfield emergency action plan to determine what needed to be done. He also had a discussion with his manager. He did not initially attend the spill site on the 34th floor. [ 13 ] Mr.

Sylvester reviewed the Material Safety Data Sheet contained in the Hazardous Materials Information Systems binder and saw that it directed that emergency response personnel were to be notified and thereafter steps were to be taken to remediate the situation. He also reviewed the Brookfield emergency action plan document and noted that the first item specified the notification of authorities and emergency responders. Mr. Sylvester’s trial evidence was that he did not follow this direction as he needed to assess the magnitude of the spill and determine whether or not there was an emergency. [ 14 ] Mr.

Sylvester also reviewed the Spills Management Policy, although he could not recall whether this was done before or after viewing the spill site. This policy document stated that as manager, his primary responsibility was “to ensure that hazardous spills are

managed in accordance with government regulations.” In his trial testimony, Mr. Sylvester conceded that his lack of knowledge of the Fire Code regulations meant that he had failed to manage the situation in accordance with government regulations. [ 15 ] Mr. Sylvester attended the spill site for the first time at approximately 5:30 p.m. He spent 15 minutes examining the site. He observed diesel fuel within the layer of rocks on the top of the roof, as well as buckets and pails used by staff to contain the fuel.

He also noted areas where the insulation and rocks had been removed to create areas for the fuel to pool. In his trial evidence, he testified that while on the roof he had intended to attempt to assess the level of spillage, but that this task was very difficult given the layer of rocks and underlying insulation. [ 16 ] At approximately 6:00 p.m., Mr. Sylvester engaged in a calculation to determine an estimate of the spillage amount. Given the storage capacity in the level 1 parkade diesel tanks (approximately 4,500 litres each), Mr.

Sylvester determined that as the sensors indicated a 20 percent reduction in height, 1,800 litres of fuel was missing from the P1 tanks. He surmised that this fuel would have been pumped up to the generator room on the 34 th floor, which contained three tanks, one of which being the new tank Stuart Olson had been tying in that day. The new tank has a capacity of 900 litres and it was empty. Because Mr.

Sylvester had no way of determining how empty or full the other two tanks were (given the 1,800 litres missing from the parkade tanks) he estimated that 900 litres of fuel could have flown through this tank onto the roof. He indicated that a 900 litre spill would have been the “worst case” scenario. [ 17 ] Following this calculation, Mr. Sylvester consulted his management team and a decision was taken to contact EnviroHazmat, a commercial company specializing in industrial spills clean-up. In his evidence, he stated that he spoke to EnviroHazmat on two occasions, 15 to 20 minutes apart. Mr.

Sylvester testified that his first call to EnviroHazmat was made at about 6:00 p.m., and he enquired as to whether EnviroHazmat could assist and whether he should contact the fire department. He was informed by the person who took the call that the supervisor was offsite handling a different spill but that they expected to hear from him soon and would be contacted shortly. [ 18 ] When Mr. Sylvester had not heard back within 15-20 minutes, he called EnviroHazmat again. He was informed that the supervisor could not be reached and that they would re-attempt contact.

Shortly thereafter EnviroHazmat returned the call and instructed Mr. Sylvester to contact the fire department. He called 911 at 6:34 p.m., advising the operator that the volume of the spill may have been as great as 900 litres. [ 19 ] The fire department arrived at the building approximately eight minutes after the 911 call. The building was immediately evacuated and the building alarm activated. As set out in the fire department’s written

summary (Tab 17, p. 9), the fire department estimated that 200 litres was gathered in the containers, with additional uncontained product throughout the substrata. Grounds of Appeal [ 20 ] Pursuant to s 813(

a) of the Criminal Code , the Appellants appeal from their conviction on Count 1 on the following grounds: a. The Trial Judge erred in law by failing to properly consider the 50 litre threshold that triggers the duty to notify immediately, which trigger forms part of the essential elements of the legal test under Division B,

Part 4, Sentence, 4.1.6.4(1) of the Fire Code ; and b. In the alternative, the Trial Judge erred in fact or in mixed fact and law by mischaracterizing the evidence in respect of the time at which Mr. De La Hey and/or Mr. Sylvester knew that the 50 litre threshold, which threshold triggers the duty to notify, had been exceeded. [ 21 ] The Appellants request that the decision be quashed and a verdict of acquittal be entered or, alternatively, that a new trial on this Count be ordered. Legislation [ 22 ] For ease of reference, I have reproduced the relevant sections of the legislation in issue. Division B,

Part 4, sentence 4.1.6.4(1) of the Fire Code states: 1. When loss of flammable liquid or combustible liquid occurs due to a spill or leak...the owner shall ensure that: a. If the quantity of liquid spilled or leaked exceeds 50 L in aggregate or is sufficient to cause a sheen on nearby surface water i. The fire department shall be notified immediately... The appendix to this

section reads: A-4.1.6.4: The local fire or emergency response department is the owner’s first contact for any leak or spill that requires immediate action to lessen the risk of fire or explosion, and secondly, notification to the authority having jurisdiction. [ 23 ] Finally, section 67(4)(

a) of the Safety Codes Act states that any person who contravenes this Act is guilty of an offence. “This Act” is defined in

section s 1(2) as including any regulation, bylaw or code declared in force pursuant to the Act (which for our purposes is the Fire Code ). Of note is the fact that a breach of

section 67 may attract a possible prison term of up to six months in the case of a first offence: s 68(1).

Standard of Review [24] The parties agree that on a

summary conviction appeal, the standard of review on questions of law is one of correctness, whilethe standard of review for questions of fact or mixed fact and law is whether the Trial Judge has committed a palpable and overridingerror: Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235, at para 36; R v Zimmerman, 2012 ABQB 293, para 17. Findings a.

Error of law [25] The parties are in agreement that the offence in question is properly classified as one of strict liability. [26] The first ground of appeal – whether the Trial Judge failed to consider the 50 litre threshold in conjunction with the duty tonotify – engages a question of law. Namely, the issue is whether the Trial Judge erred in ignoring an essential element of the charge. TheAppellants submit that the time at which they knew or ought to have known that the spill exceeded 50 litres constitutes an element of theactus reus of the offence.

They submit that by imposing a notification obligation absent knowledge of the magnitude of the spill, theTrial Judge effectively read out a portion of the charge and modified the duty imposed by the Fire Code, thus erring in law. [27] This appeal raises a novel argument in law, namely, whether for strict liability offences a mens rea element can form a part ofthe actus reus.

The Appellants submit that under the Fire Code, the obligation to report does not arise until the volume of a spill exceeds50 litres, and that as such, an accused must have subjective knowledge of the level of spill before the obligation is triggered. TheAppellants argue that such a requirement is borne out by the wording of the Fire Code, and that it is nonsensical to speak of an obligationto report absent knowledge of the event and the amount spilled.

That is, how do you know whether you have to report unless you havesubjective knowledge that over 50 litres has been spilled? [28] The Appellants submit that where legislation imposes a numeric threshold, as opposed to a simple knowledge threshold as anelement of the offence, the actus reus of the offence is not made out until the Crown establishes that the accused was aware or shouldhave been aware of the numeric value.

It relies on R v Shell Canada Ltd, 2000 ABQB 459, 267 AR 308 and Gavin v The Queen (1956), (PE SCAD), 115 CCC 315 (PEI CA) in support of this argument. [29] The Crown counters that as a strict liability offence, it is not required to establish that the Appellants had subjectiveknowledge that the spill exceeded 50 litres in order to establish the actus reus of the offence.

Rather, it argues that as a public welfareoffence, the Crown is only required to prove an occurrence of the prohibited act or omission beyond a reasonable doubt, at which pointthe accused may establish a defence of due diligence on a balance of probabilities.

The Crown urges this Court to interpret the volumerequirements in the as pertaining to an accused’s defence of due diligence, as opposed to forming part of the actus reus. [30] The Crown relies on R v Sault Ste Marie (City), (SCC), [1978] 2 SCR 1299, Lévis (City) v Tétreault, 2006SCC 12, [2006] 1 SCR 420, and La Souveraine, Compagnie d'assurance générale v Autorité des marchés financiers, 2013 SCC 63,[2013] 3 SCR 756 (“AMF”) in arguing that the Trial Judge correctly found that the Crown had established the actus reus of the chargebeyond a reasonable doubt, and that the Appellants had failed to establish due diligence on their part as a defence. [31] In advancing this issue before the Trial Judge, counsel for the Appellants did not expressly argue that a mens rea requirementwas imported into the actus reus element of the offence.

Counsel argued that the critical issue was the time at which the accused becameaware, or ought to have been aware, that the spill exceeded 50 litres, thus triggering the duty to report. As such, the specific argumentadvanced by counsel was that the Agreed Statement of Facts does not establish when the accused was aware of the volume. It was, ofcourse, conceded that a spill in excess of 50 litres took place between 4:00 to 4:30 p.m. [32] Counsel for the Appellants suggested that the above is an identical argument merely presented using different verbiage. Idisagree.

The Trial Judge does not directly address whether a mens rea element can be imported into the actus reus of the offence. It isunclear from his Reasons if he considered and rejected this argument, or whether he failed to consider it as it was not expressly advancedbefore him. While counsel for the Appellants identified the timing of the accused’s awareness as the critical issue at trial, he did notdelineate whether this issue: (

a) formed part of the actus reus; (

b) classified this offence as something other than strict liability, or; (c)formed part of the due diligence defence. [33] In any event, whether the importation of a mens rea requirement into the actus reus was specifically raised before the trialjudge, there is no issue with determining this issue on appeal. This is not necessarily a “new” argument as much as it is an attempt toclarify the arguments made at trial.

There is a sufficient evidentiary record to resolve this issue, and there is no indication that the Crownwill suffer any prejudice: Aftergood v Alberta (Minister of Municipal Affairs), 2006 ABCA 154, 84 AR 189, at para 6. [34] The parties agree that the Trial Judge correctly identified the test, at para 49 of his Reasons as “whether the Crown proved theactus reus of this charge beyond a reasonable doubt”.

They differ on whether the test as articulated was correctly applied. [35] During argument before this Court, the Appellants confirmed their position that the offence at bar is properly classified as oneof strict liability. As I understand the law, if the Crown is put to the burden of proving any mental element beyond a reasonable doubt,the offence – even if involving public welfare – is best classified as a mens rea offence as opposed to one of strict liability. Strict liabilityoffences release the Crown from having to prove any mens rea element.

The Appellants cannot hold the Crown to an elevated burden ofproving mens rea by trying to “piggyback” a knowledge requirement onto the actus reus element. [36] For the reasons given below, I find that the Trial Judge did not commit an error in law in failing to import a knowledgeelement into the actus reus of the offence as alleged by the Appellants. The Appellants do not argue that the Trial Judge erred bymisclassifying the offence according to the categories provided for in Sault Ste.

Marie, as discussed in greater detail below. [37] A review of the Decision shows that the Trial Judge was clearly alive to the fact that this was a regulatory offence concerningpublic welfare. Although he does not expressly classify the offence as one of strict liability, this can be inferred from his statement of the

test as being whether “the Crown proved the actus reus of this charge beyond a reasonable doubt”: para 49. The issue is whether, if properly classified as a strict liability offence, the Trial Judge erred in failing to import a knowledge requirement into the elements of the act to be established by the Crown. [ 38 ] An analysis as to the classification of regulatory offences must begin with a review of the Supreme Court’s seminal decision in Sault Ste. Marie .

Here the City was charged with violating s 32(1) of Ontario’s Water Resources Commission Act , which provided that any person or municipality that discharges, deposits, causes or permits the discharge or deposit of any material into any river that may impair the quality of that river is guilty of an offence. The City had entered into a contract with a contractor for the disposal of municipal refuse. The refuse was disposed of by the contractor in such a way that a nearby river was polluted. The City had nothing to do with the actual disposal operations.

One of the issues before the Court was whether the Crown had to establish a mental element to prove the offence. [ 39 ] In developing the modern concept of “strict liability” the Court stated, at p 1310: Public welfare offences obviously lie in a field of conflicting values. It is essential for society to maintain, through effective enforcement, high standards of public health and safety. Potential victims of those who carry on latently pernicious activities have a strong claim to consideration.

On the other hand, there is a generally held revulsion against punishment of the morally innocent. [ 40 ] The Court then provided the following oft-cited description of categories for different offences, at pp 1325-1326 1. Offences in which mens rea , consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence. 2.

Offences in which there is no necessity for the prosecution to prove the existence of mens rea ; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.

These offences may properly be called offences of strict liability. […] 3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault. [ 41 ] The Court went on to state that public welfare offences would prima facie fall into the strict liability category and would not attract a presumption to full mens rea .

It noted that such offences would only fall into the first category if a mens rea requirement was imported by the statutory language, through the use of words such as “wilfully”, “with intent”, “knowingly”, or “intentionally”: p 1326. [ 42 ] In turning to Ontario’s Water Resources Commission Act , the Court reasoned that as pollution offences are public welfare offences enacted in the interest of public health, there was no presumption of full mens rea . Similarly, a review of the Fire Code indicates that its objectives include the promotion of safety, health and fire protection: Code , viii.

The Fire Code , as adopted through the Safety Codes Act , is based upon protecting the welfare of the public and must be interpreted accordingly. [ 43 ] The Appellants have not argued that the Trial Judge erred in classifying the offence as one of strict liability. Rather, they submit that there is (or should be) a “fourth” category of offence – one where knowledge constitutes an element of the act which must be proved by the Crown.

They submit that the Trial Judge erred in finding the Crown had proven the actus reus absent this element. [ 44 ] In determining whether either such an error occurred, I turn first to a review of the case authorities submitted by the Appellants in support of their position. [ 45 ] In Shell, the accused was charged with three counts of violating Alberta’s Environmental Protection and Enhancement Act . At issue was Count 3, which charged Shell with violating ss 99(1)(a)(

b) and (

d) of the Act contrary to s 99(2) of the Act , which read [emphasis added]: 99(1) A person, other than the person having control of the substance, who releases or causes or permits the release of a substance into the environment that has caused, is causing or may cause an adverse effect shall, as soon as that person knows or ought to know of the release, report it to (

a) the Director, (

b) the owner of the substance, where the person reporting knows or is readily able to ascertain the identity of the owner, [...] (

d) any other person who the person reporting knows or ought to know may be directly affected by the release.

(2) The person having control of a substance that is released into the environment that has caused, is causing or may cause an adverse effect shall immediately on becoming aware of the release , report it to the persons referred to in (1)(a), (

b) and (

d) unless the person having control has reasonable grounds to believe that those persons already know of the release. [ 46 ] Shell operated a sour gas plant. Water was ultimately released from a cooling tower to a pond system located on Shell property. Pesticide polluted water was released into a nearby creek. The release in question occurred on August 9, 1995.

A bioassay test to determine the toxicity of the discharge was mailed to Shell on August 24, but was not reviewed by Shell employees until September 6, at which time the results were reported to Alberta Environment. [ 47 ] In granting a non-suit application, the trial judge found that while Shell may have been negligent in informing itself, once it did become aware, there was immediate reporting and, as such, the Crown had not established an offence: (para 11).

[48] On appeal, the Court held that the case turned on the meaning of “immediately becoming aware.” In dismissing the appeal,Kent J. rejected the Crown’s argument that that s. 99(2) is a strict liability section, despite the presence of the words "upon becomingaware". Rather, she found, at para 35, that: The Crown argues that because this offence is one of strict liability, to hold that there must be actual knowledge would be to find thatthere must be mens rea, which is not a requirement in proving a strict liability offence. That argument misses the point.

For a strictliability offence, the Crown need only prove the act. The act in these circumstances is the failure to report. The requirement under s.99(2) is to report immediately upon becoming aware. In this case, the Crown cannot prove the act of failing to report because the Shellemployee did not have the requisite knowledge. [49] Justice Kent concluded that until a Shell employee read the report indicating the adverse effects of the spill, there was noactual knowledge. She supported her

interpretation of the Act by finding that if the reporting requirement was triggered merely by therelease, as opposed to knowledge that the release did or may cause an adverse effect, the Act would not contain the words “has caused, iscausing or may cause”, and would therefore require a reporting of every spill, which was not the intent of the Legislature: (paras 36-37).Rather, she determined that: In this case, the statute is clear: in order for there to be an offence, the person must first know there has been a release that has caused, iscausing or may cause an adverse effect (para 39) [50] The Appellants rely on Shell for the proposition that the obligation to report is not triggered until there is an awareness of theevent that requires the reporting, and that in such instances the requirement of “becoming aware” is incorporated into the actus reus ofthe offence, provable by the Crown. [51] I do not read Shell as supporting the Appellants’ argument.

The wording of the legislation in Shell expressly includes aknowledge requirement as an element of the offence. Specifically, the reporting requirement is triggered when an accused “knows orought to have known” of the release, and such reporting must occur “immediately on becoming aware” of the release. As found by KentJ., the knowledge requirement in Shell is an express element in the wording of the statute which must be proven by the Crown to makeits case. [52] The legislation in Shell clearly states that the offence has not occurred until the accused knows or ought to have known of theleak.

The case at bar is easily distinguishable in that the wording of the Fire Code does not contain similar language. As such, it cannotbe said that there is analogous legislative intent. [53] The Appellants also rely on the “undersize lobster fishing” cases in support of their argument that knowledge of a numericthreshold must be proved by the Crown before the commission of an offence has been established.

Gavin v The Queen involved anoffence in which fishermen and canners were alleged to be in possession of lobsters shorter than allowed in the regulations “withoutlawful excuse”. [54] The Appellants cite the following quote in Gavin in support of their argument.

They submit that the simple fact that shortlobsters had been caught was not enough to complete the actus reus of the offence, and that the accused fisherman had to be afforded areasonable opportunity to discover that they were in possession of short lobsters before they could be convicted: [emphasis added] If a prohibited act is done, whilst the offender has a reasonable means of knowing that he is doing the act, mens rea will be inferred.Thus I consider that the offence of retaining short lobsters is complete when the accused has had his earliest reasonable opportunityof ascertaining their size [para 40]. [55] Of note, the Court in Gavin did not have the benefit of the Supreme Court’s decision in Sault Ste.

Marie. As such, the presentoffence classification scheme had not yet been established. This may explain the Court’s struggle in classifying the offences in issue. It issignificant, in my view, that the importance of working is important, even pre-Sault Ste. Marie, in discerning legislative intent respectingproof of knowledge in establishing a breach.

In determining whether mens rea was a necessary ingredient of the offence, the Courtlooked to the wording of the statutes. [56] The passage from Gavin relied upon by the Appellants (namely that the offence of retaining short lobsters is complete whenthe accused has had the opportunity to ascertain their size) must be read in context.

Specifically, the Court’s reasoning is premised on itsfinding that the words 'without lawful excuse' would “seem to maintain an atmosphere intended to preserve for an accused person theright to require proof of mens rea”: para 40. [57] Gavin must be read in light of in R v Pierce Fisheries Ltd, (SCC), [1971] SCR 5. While this case alsopredates Sault Ste.

Marie, it emphasises the importance of discerning legislative intent through the wording of the legislation. [58] In Pierce Fisheries, the accused had no knowledge, either directly or inferentially, that there were 26 under-sized lobsterswithin the 50,000 to 60,000 pounds of lobster found in its possession. The issue before the Supreme Court was whether mens rea was anessential ingredient of the offence charged. Both the majority and the dissent agreed the issue turned on the wording of the statute andthe subject matter with which it dealt. In finding the accused guilty, the majority noted that the

section in issue did not contain anylanguage such as “knowingly”, “willfully” or “without lawful excuse”. While acknowledging that this was not determinative of the issue,the majority found that given this wording, viewed in the context of the legislative objectives, the offence was one of strict liability.Specifically, it held, at pp 22-23: In this case the respondent knew that it had upwards of 60,000 pounds of lobster on its premises; it only lacked knowledge as to the smallsize of some of them, and I do not think that the failure of any of its responsible employees to acquire this knowledge affords any defenceto a charge of violating the provisions of s. 3(1)(

b) of the Lobster Fishery Regulations.

If lack of knowledge by any responsible employee constituted a defence for a limited company to a charge under s. 3(1)(

b) of the Regulations, then I think it would in many cases be virtually impossible to secure a conviction. The language used by Mr. Justice Roach in R. v. Pee-Kay Smallwares Ltd. , at p. 137, appears to me to be pertinent in this regard.

The learned judge there said: If on a prosecution for the offences created by the Act, the Crown had to prove the evil intent of the accused, or if the accused could escape by denying such evil intent, the statute, by which it was obviously intended that there should be complete control without the possibility of any leaks, would have so many holes in it that in truth it would be nothing more than a legislative sieve. [ 59 ] In my view, the decision in Pierce Fisheries supports the Trial Judge’s finding that in strict liability offences, an accused may be guilty of an offence involving violation of a numerical threshold absent knowledge of the fact that this threshold had been exceeded.

In Pierce Fisheries , the violation was “triggered” upon retention of a lobster measuring less than 3 3/16 inches, regardless of whether the accused had knowledge of the existence of “short” lobsters in its possession. This supports the Trial Judge’s conclusion that the Appellants’ obligation to notify the fire department was “triggered” once the spill exceeded 50 litres, regardless of knowledge of the spill’s volume.

There is nothing in the line of analysis in Pierce Fisheries suggesting that where a numeric threshold forms part of the actus reus of a strict liability offence, a violation cannot be demonstrated until the Crown proves knowledge of awareness of the numeric threshold. [ 60 ] The Appellants argue that they should not have been found guilty of violating a threshold value absent knowledge that such value was exceeded. There is some superficial attraction to this submission. How can an accused be found guilty of violating a provision absent knowledge he was doing so?

If a citizen is obliged to call the fire department if he spills greater than 50 litres of fuel, how does he determine whether to make such a call until he ascertains what volume has been spilled? If a fisherman is obliged to return undersized lobsters to the ocean, how can he so do without first ascertaining if they are of legal size? [ 61 ] The answer to these queries lies in the classification of the offence with which an accused is charged. Sault Ste. Marie provides a clear approach to the classification of offences.

In cases involving a strict liability offence, the Crown’s burden is limited to proving the prohibited act. [ 62 ] The Appellants urge this Court to create a “fourth” classification of offence somewhere between mens rea and strict liability. That is, an offence where the Crown must prove some form or level of knowledge in order to discharge its burden of establishing the prohibited act. The Appellants offer no authority to support this somewhat novel proposition. [ 63 ] The Trial Judge’s reasons do not expressly reject this additional classification.

Nor do they address whether mens rea is a requirement to prove the offence. Again, this may be due to the fact that this argument may not have been clearly articulated before him. In going through his analysis, the Trial Judge discussed the appropriate approach to

interpretation of public welfare legislation (paras 22- 25) and engaged in a contextual

interpretation of the Safety Code and Fire Code (paras 26-27). [ 64 ] It is implicit in his analysis that he viewed the offence as one of strict liability. He was clearly alive to the 50 litre threshold requirement, but implicitly rejected the need for the Crown to prove any knowledge requirement. This is demonstrated at para 49 where he stated the test as [emphasis added]: …Sentence 4.1.6.4 (1) of the Fire Code requires an "owner" of a building to "ensure" that the Fire Department is notified "immediately" in the event of a spill exceeding 50 litres .

Has the Crown proved the actus reus of this charge beyond a reasonable doubt? [ 65 ] The Trial Judge also noted that the question of liability turned on the

interpretation of public safety statutes. [ 66 ] The importance placed upon the wording of a statute has been stressed by our Supreme Court. In Lévis (City) v Tétreault , the accused individual was charged with the strict liability offence of operating a motor vehicle without a valid driver’s licence, contrary to s 93.1 of Quebec’s Highway Safety Code . [ 67 ] In convicting the accused, the Court confirmed that classification is a question of statutory

interpretation, stating, at para 29, that [emphasis added]: In this case, as I explained above, the charge brought by the city of Lévis was one of operating a motor vehicle without a valid driver's licence, contrary to s. 93.1 of the Safety Code . Nothing in the words of this provision indicates an intention to create a mens rea offence or, conversely, to impose absolute liability so as to exclude a due diligence defence.

The provision in no way places the burden of proving mens rea on the prosecution. […] [ 68 ] The Court went on to instruct that the statutory provisions will inform the nature of the offence as well as the elements provable by the Crown, holding, at para 16: Classifying the offence in one of the three categories now recognized in the case law thus becomes a question of statutory

interpretation. Dickson J. noted that regulatory or public welfare offences usually fall into the category of strict liability offences rather than that of mens rea offences…. [ 69 ] The above demonstrates the importance of classification. The Court acknowledged that public welfare offences are prima facie ones of strict liability.

It went on, however, to consider whether the wording of the provision demonstrated a legislative intent to strip s 93.1 of its prima facie designation as a strict liability offence, and reclassify it as either one that required the Crown to prove knowledge, or one of absolute liability. The Court’s reiteration of the three existing categories does not support the Appellants argument in favour of a fourth category where knowledge forms a part of the actus reus .

[70] Likewise, in reiterating s 4.1.6.4 (1) of the Fire Code and then stating the appropriate test at paragraph 49 of his Reasons, theTrial Judge clearly interpreted the offence as one which did not require the Crown to prove any knowledge on the part of the accused.The

section in question does not incorporate any of the frequently mentioned language indicative of a mens rea element (i.e.“intentionally” or “knowingly”). However, that is not the end of the interpretive analysis. As the Quebec Court of Appeal held inLatulippe v Desruisseaux (1986), (QC CA), 50 CR (3d) 277 [emphasis added]: …I do not believe the words "with intent", "knowingly" or "wilfully" mentioned in Sault Ste-Marie were designed to be a closed list ofindicative words requiring proof of intent or knowledge.

The real point is whether or not the legislature, in the language it has used,has clearly indicated its desire that intent or knowledge on the part of the accused be proved by the prosecution if the accused isto be convicted. (para 21) [71] Even if the Fire Code provision were ambiguous, an examination of the legislative intent at the heart of the Fire Codeprovisions supports the Trial Judge’s finding that this was a strict liability offence and therefore the sole burden falling on the Crownwas to prove the commission of the prohibited act.

At paragraph 26, the Trial Judge notes that as public welfare statutes, the Safety Codeand the Fire Code have as their genesis the protection of individuals, and that an express objective of the Fire Code is limit the chance ofexposing the public to risk of injury due to fire. [72] The importance of examining the legislative intent was eloquently stated by the Ontario Court of Appeal in R v Pee-KaySmallwares Ltd, (ON CA), [1948] 1 DLR 235, at para 30: The language used may be so explicit as to leave no doubt and in that event there could be no necessity for considering the nature of thesubject matter of the legislation.

Where the language used is equally consistent with the intention of the legislature having been thatmens rea should not be an ingredient of the offence as that it should, the question may be solved by looking at the nature of the subjectmatter of the legislation.

That legislation may so vitally affect the public interest or the interest of the state that the inference isirresistible that the legislature intended that the mere doing of the act thereby forbidden should constitute the offence, regardless of theintention of the doer. [73] The nature and extent of the public interest in the Fire Code was clearly taken into account by the Trial Judge.

He was alive tothe importance of public safety considerations as discussed in R v Wholesale Travel Group, (SCC), [1991] 3 SCR 154.A review of the record indicates that when the fire department arrived at the scene at 6:42 p.m., 400 people were evacuated. Had the fuelignited, the results in this instance could have been catastrophic. This supports an

interpretation of the offence as being one of strictliability. As stated by the Trial Judge, at para 58: …level of danger in the circumstances of this case was extremely high. Had the spilled fuel entered the roof drainage system or ignited,the consequences could have been catastrophic. Gary Baker's evidence about the difficulty of access by firefighters, had there been a fire,is compelling on this point. In fact, when Fire Department personnel did arrive on the scene, they ordered an immediate evacuation of thebuilding. [74] A similar approach is evident in the 2013 decision of the Supreme Court in AMF.

In that instance, the majority stressed that,in keeping with the presumption established in Sault Ste. Marie (that regulatory offences are generally strict liability offences) and in theabsence of specific language indicating a contrary intention on the legislature's part, the offence would be presumed to be one of strictliability that does not require proof of mens rea.

Indeed, the majority held that the accused’s awareness level of the offence (an absenceof knowledge that the offence had, in fact, occurred) was to be addressed under the due diligence defence, and did not form part of theactus reus. [75] Finally, in R v Timminco Ltd (2001), (ON CA), 54 OR (3d) 21 (Ont CA) the Court of Appeal found thatthe actus reus of a strict liability offence did not include a mental element. Here, the employer was charged under Ontario’sOccupational Health and Safety Act following the death of a worker.

The worker’s body was found at the back of a crown press,between a moving beam and the stationary frame of the press. There was no guard blocking access to the beam from the back of thepress. [76] The Court of Appeal examined whether the Crown must establish, as a part of the actus reus, that the employer knew thepress had an exposed moving part and that it presented a danger to employees.

In ruling that the Crown did not have to establishknowledge of the hazard as a part of the actus reus of the offence charged, the Court found that imposing such an obligation wouldimpede enforcement of public welfare legislation: para 26. It went on to state, at para 29 that: In my opinion, in order to establish the actus reus of the offence charged, the Crown was required to lead some evidence: -- that Timminco was Mr.

Roesler’s employer; -- that Timminco had a “machine” (the press) with an exposed moving part that may endanger the safety of any person; and -- that the exposed moving part was not “fenced or guarded”, or constructed in such a way that would provide equivalent protection. [77] The Court concluded that the Crown presented evidence on each point, and that it was not required to show that the employerwas also aware of the hazard posed by the moving parts in order to establish its burden of proving the actus reus.

Rather, it concludedthat as a strict liability offence the employer’s lack of knowledge of the hazard was relevant only in respect of any due diligence defenceit might advance. [78] Similarly, in the case at bar the Trial Judge found that the Crown had established the actus reus by establishing beyond areasonable doubt that: i. The accuseds were “owners”;

ii. The quantity of diesel exceeded 50 litres; and iii. They failed to immediately notify the fire department. [ 79 ] Implicit in the Trial Judge’s Reasons is a finding that the Crown was not put to the burden of establishing knowledge on the part of the Appellants that the spill exceeded 50 litres. The concession that the spill in fact exceeded this amount sufficed: para 52.

This is similar to Timminco where the Crown did not have to prove the employer knew the machine presented a danger to employees; knowledge that it had exposed moving parts attracted liability. [ 80 ] The above cases address whether mens rea comes into play in strict liability offences (albeit, with the exception of Timminco , as a stand-alone element).

Courts have, in my view, consistently rejected this argument, holding that if the Crown is put to the burden of proving knowledge on the part of an accused, the presumptive classification of strict liability is rejected and the offence is classified as a true mens rea offence. According to Sault Ste. Marie , if the Crown is put to the burden of proving any mental element beyond a reasonable doubt, the offence fits within the classification of a mens rea – as opposed to strict liability – offence. The classification scheme established in Sault Ste.

Marie leaves no room for a strict liability offence which incorporates a knowledge element into the actus reus . According to the Supreme Court, an offence in which the accused’s state of mind comes into play – in any manner – is not a strict liability offence. The cases relied upon by the Applicants do not support the creation of a “hybrid” offence blending strict liability with mens rea .

The two are distinct. [ 81 ] While the Appellant’s argument that a knowledge component can form part of the elements to be proven by the Crown is novel, I reject it for the same reasons given in the authorities discussed above. There is nothing in any of the cases cited by counsel which support the Appellants claim that a knowledge component can form part of the essential elements of a strict liability offence. The authorities do not support the creation of a “hybrid” or fourth class of offences, namely a strict liability offence incorporating a knowledge component into the prohibited act.

If the Crown is put to the burden of proving knowledge on the part of an accused, the offence is properly classified as a mens rea offence. I therefore find no error on the part of the Trial Judge in failing to find that the Crown was required to establish that the Appellants had either subjective or objective knowledge as to the volume of the spill. [ 82 ] The Trial Judge was correct in his classification of the offence, and in finding that the Crown established the essential elements on the evidence.

The Trial Judge expressed the test as whether the Crown had proven the actus reus of the offence beyond a reasonable doubt. He concluded that the Crown had established that a spill of greater than 50 liters had occurred, as conceded by the Appellants, and therefore, there was an obligation to immediately report the occurrence. No error in law has been established. That the Trial Judge’s conclusion is correct is supported not only by the language of the Fire Code , but also by the historic judicial

interpretation of public welfare offences. [ 83 ] The “triggering” event under the Fire Code is not knowledge of a spill in excess of 50 litres and a failure to immediately notify; it is the existence of a spill in excess of this amount and a failure to immediately notify. The Trial Judge was correct in determining that the evidence established the latter. [ 84 ] The Trial Judge’s reference (para 51) to the fact that Messers De La Hey and Sylvester “knew or ought to have known of the spill and how to respond” must be viewed in context.

The whole of this paragraph reads as follows: As pointed out by the Accused in their directed verdict submissions, the use of the word "ensure" imposes indirect liability on an owner for the acts of others.

That, together with the wide definition of "owner", lead this Court to conclude that all three Accused are owners; indeed, these provisions, particularly in the context of a duty to report spills, are to be interpreted so as to avoid a "finger-pointing" defence and defeat the argument, raised in this case, that the Accused "had systems in place." 1023803 Alberta Inc. is the registered (co)owner and is indirectly liable for the actions of the other two Accused who had actual persons on the scene who knew or ought to have known of the spill and how to respond to the situation. [ 85 ] I do not read these comments by the Trial Judge as importing any mens rea requirement into the offence charged.

Rather, read in context, they are meant to underscore the shared responsibility of all of the accused relative to the spill. [ 86 ] In sum, the Trial Judge properly characterized the 50 litre threshold that triggered the duty to immediately notify the fire department. The offence as worded in the Fire Code does not require that the Crown establish knowledge of the spill volume as an element of the offence. b. Error in fact or in mixed fact and law [ 87 ] The Appellants second ground of appeal is that the Trial Judge erred by mischaracterizing the evidence of both Mr. De La Hey and Mr.

Sylvester regarding their ability to estimate the volume of the spilled diesel. They assert that because the Trial Judge failed to properly determine the time at which these individuals knew or ought to have known that the spill exceeded 50 litres, he incorrectly considered whether notification was “immediate”. [ 88 ] The parties agree that the test for errors of fact or errors of mixed fact and law is whether the Trial Judge committed a palpable and overriding error, described as "clear to the mind or plain to see": Housen v Nikolaisen , paras 5, 10 and 36 .

A degree of deference is afforded to the trial judge in making such findings. [ 89 ] The Appellants argue that the Trial Judge failed to appreciate that the 0-900 litre estimation was not made by Mr. Sylvester until approximately 6:00 p.m., and that, because he called the fire department at 6:34, notification was, in fact, made “immediately”.

They submit that the Trial Judge erred in taking the time of the discovery of the spill (4:00 p.m.) into consideration in determining whether the spill was immediately reported because the volume was not determined, and could not have been determined, until 6:00 p.m. when Mr. Sylvester attempted to calculate the volume of the spill. [ 90 ] I have already determined that the Appellant’s mens rea does not form a part of the offence and therefore is not relevant to the analysis. The parties agree that a spill in excess of 50 litres occurred between 4:00 to 4:30 p.m. The spill was discovered at 4:00 p.m., and

not reported until 6:34 p.m. The Trial Judge’s finding that notification did not occur “immediately”, “forthwith”, or “as soon as practicable” is unassailable. [ 91 ] If, however, I am incorrect in finding that this case is one of strict liability where the Crown does not have to establish knowledge to knowledge to prove the offence, I shall examine the Appellants second ground of appeal in that context. While the Appellants acknowledge that the spill occurred by 4:30 p.m., they argue that there is no way they knew, or could have known, that this amount had in fact been spilled prior to 6:00 p.m.

They therefore suggest that a 34 minute delay between the earliest point at which they could have ascertained the volume of the spill and the calling of the fire department satisfies the “immediacy” requirement under the Fire Code .

A review of the evidence does not support this proposition . [ 92 ] The fire department Incident Report states that the “team found large diesel spill on roof” and that “containment attempts were evident as there was a large garbage container 2 smaller garbage containers and 3, 40 litre pails that in total contained approximately 200 litres of diesel product” and that “approximately 60 litres of raw diesel fuel was removed from roof using [truck] 25 recovery’s fuel pump...” The Appellants submit that this evidence only demonstrates that amount of fuel on the roof at the time of the fire department’s arrival, and that it in no way demonstrates the volume of the spill when first observed (approximately 4:30 p.m.) or when first attended to by Mr.

Sylvester (approximately 5:30 p.m.). [ 93 ] A review of the evidence establishes that by the time Mr. De La Hey arrived on the scene, there was no “flow” of fuel, just “a drip” coming from the vent line. His evidence was that in an attempt to contain the spill, he and two other employees created “pools” and additionally collected the fuel in garbage containers.

Although he stated there was “no way of knowing” the volume of fuel, he agreed that over time, the garbage containers “would have got fairly accumulated.” He further stated that these employees would have been working to fill the container with fuel “until Dave got there...maybe a little bit before.” [ 94 ] This evidence is corroborated by Mr. Sylvester’s testimony. He stated that when he attended the roof at approximately 5:30, he was accompanied by Mr. De La Hey and that the other employees were no longer on scene. He then instructed the staff to stay off the roof until he could figure out what to do.

He noted that the drains had been covered and that the staff had been using buckets and other objects in their efforts to contain the spill. He could not recall whether he examined the containers. [ 95 ] The above evidence establishes that the containers had been filled with approximately 200 litres of fuel prior to Mr. Sylvester viewing the scene. As staff had been directed to stay off the roof from this time forward, the buckets and pools as found by the fire department must have existed in this state by 5:30 p.m.

The existence of fuel in a large garbage container, two smaller garbage containers and three 40-litre containers indicates that a reasonable person should have known the spill exceeded 50 liters at this time. [ 96 ] Moreover, the evidence given by Mr. Sylvester does not establish that the spill volume was not capable of measurement earlier on. Rather, it demonstrates that he chose not to perform any measurement calculations until 6:00 p.m. Had Mr. Sylvester been aware of the 50 litre “trigger”, he may have been more forceful with directing Mr.

De La Hey to ascertain the amount, he may have visited the roof earlier, or he may have done the volume calculations sooner. [ 97 ] The Trial Judge’s

interpretation and application of the term “immediate” was, in my view, reasonable. While the volume was not calculated by Mr. Sylvester until 6:00 p.m., on the evidence, he ought to have known of the spill volume well before this. The Appellants cannot be rewarded for remaining ignorant of the amount of the spill. Mr. Sylvester arrived back at the building at approximately 5:15 p.m. but did not attempt to calculate the level of spill until 6:00 p.m., and even then did not contact the fire department until 6:34 p.m.

The Trial Judge did not commit any palpable or overriding error in finding that the Appellants failed to “immediately” report the spill. Conclusion [ 98 ] For the reasons given above, the appeal is dismissed. Heard on the 6 th day of June, 2014. Dated at the City of Calgary, Alberta this 20 th day of October, 2014. M. David Gates J.C.Q.B.A. Appearances:

Charlene McLaughlin for the Respondent Dufferin Harper and Heather Richardson for the Appellants