R. v. Zellstoff Celgar Limited Partnership Date:, 2012 BCPC 295

Citation: R. v. Zellstoff Celgar Limited Partnership Date: 20120725 2012 BCPC 0295 File No: 20460-1 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ZELLSTOFF CELGAR LIMITED PARTNERSHIP and ZELLSTOFF CELGAR LIMITED REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. MROZINSKI Crown Counsel appearing by teleconference: T.C. Gerhart Defence Counsel appearing by teleconference: J.H. Walton Place of Hearing: Castlegar, B.C.

Date of Judgment: July 25, 2012 [1] THE COURT: This is a disposition of the charges that the defendant, Zellstoff Celgar Limited Partnership, which I will referto hereafter as Celgar, violated its permit to discharge effluent into the Columbia River, contrary to s. 120(7) of the EnvironmentalManagement Act, which I will also be referring to as the EMA for the rest of these reasons, by discharging effluent that did not meetspecific permit requirements. [2] In particular, Celgar has been convicted on the following counts of what was a six-count information: [3] First, Count 2, that on November 23rd and 24th of 2008, Celgar did unlawfully discharge effluent into the Columbia Riverwhich failed to meet the requirement of the permit that the discharge pass the 96-hour rainbow trout Single Concentration Toxicity Test. [4] Secondly, Count 3, that on November 20th, 21st, 23rd, 24th, and 25th, 2008, Celgar did unlawfully discharge effluent into theColumbia River that exceeded its permit level for total suspended solids. [5] Thirdly, Count 4, that on November 20th and 21st, 2008, Celgar did unlawfully discharge effluent into the Columbia River thatexceeded its permit level for the maximum daily loading for biochemical oxygen demand. [6] Section 120(7) of the EMA provides for a maximum fine of $300,000 for a permit violation.

In this case, the permit at issuewas violated over nine separate days, albeit as a consequence of a single spill days earlier. [7] The Crown submits that if the maximum fine is imposed for each violation on each day, the maximum available sentence inthis case is $2.7 million. However, the Crown seeks a global penalty in this case in the amount of $600,000. [8] Aside from a fine in the amount of $25,000 for each count, the Crown seeks an order pursuant to s. 127(1)(

e) of the EMA thatCelgar pay $525,000 to the Habitat Conservation Fund for conservation projects dedicated to restore, maintain, or enhance native fishpopulations or habitats within the Columbia River watershed, or for at least half of the total funds to be directed to the environmentalstudies focused on the aquatic systems or ecosystems within the Columbia River watershed. [9] As the Crown points out, these kinds of creative sentence orders have become common in sentencings for environmentaloffences.

In addition to addressing the very environmental harms that are either caused or potentially caused by these kinds ofenvironmental offences, creative sentences can go a long way toward achieving the goal of deterrence, which is such a central feature ofsentencing in this area. [10] The Crown also seeks an order pursuant to s. 127(

h) of the EMA that Celgar be ordered to publish on its website until May 31stof 2015 the fact that it was convicted of these offences, and also post a link to both the reasons for judgment in this case and thesereasons for sentence. [11] Celgar does not oppose the creative sentence order, nor is it opposed to the Crown's application pursuant to s. 127(

h) that it postsome reference to these convictions on its website. Celgar does oppose an order that it publish this information for the next three years,and submits that a shorter timeframe for publication might be more appropriate, provided that the language is clear and, from itsperspective, a fair representation of these convictions. [12] Of particular concern to Celgar and the main issue in this sentencing is the global sentencing amount proposed by the Crown.

Celgar submits that the appropriate fine in this matter is a global fine no greater than $50,000. [13] Both parties agree that the leading cases in the area of environmental sentencing are R. v. United Keno Hill Mines Ltd., [1980]Y.J. No. 10 (Terr. Ct.) and R. v. Terroco Industries Ltd., 2005 ABCA 141. In R. v. Brown, 2010 BCCA 225 our Court of Appealaccepted that Terroco, at the very least, is the leading case. [14] Both United Keno and Terroco reference lists of factors which bear consideration in sentencing for environmental offences.

These include the criminality of the conduct of the offender, the extent of attempts by the offender to comply with environmental laws,the offender's remorse, the size of the corporation, profits realized from the offence, and finally, a related criminal record, by which ismeant a record in relation to environmental offences. [15] These factors are not exhaustive, but as pointed out in United Keno, in particular, they are tailored specifically to the sentencingof corporations for environmental offences.

Other considerations not specific to corporations, but analogous to criminal law sentencinggenerally, include factors such as the nature of the receiving environment, essentially the victim, the extent of the injury or damage to theenvironment, and the nature of the offender. [16] In R. v. Northwest Territories Power Corporation, 2011 NWTTC 3 , Judge Malakoe fleshed out further the linkbetween the sentencing factors in Terroco and United Keno, and the various sentencing objectives or principles that must be applied inenvironmental sentencing.

In that case, the defendant Northwest Territories Power Corp. admitted that it had negligently allowed waterlevels in one of its reservoirs to build, such that a breach of an adjacent dyke was inevitable, and the subsequent destruction of aneighbouring lake and river system was entirely foreseeable. [17] Judge Malakoe began his reasons with the observation seen in so many environmental sentencing decisions, that the goal ofenvironmental prosecutions and sentencing are to stop the offending behaviour, clean up, mitigate or repair environmental damage, andto prevent a recurrence of the offence.

To achieve these goals, which Judge Malakoe rephrased as abatement, remediation, andprevention, certain principles, as well as the factors in sentencing, must be applied. Judge Malakoe identified these as protection of thepublic, retribution or punishment, and deterrence. He also noted that while each of the sentencing factors will relate to one or more ofthese principles, the factors may well conflict as may the principles.

[18] He gave the example that the question of the culpability of the offender, which is a central factor in environmental sentencing,may not fit well with the principle of general deterrence where the culpability of the offender is low, yet the principles of generaldeterrence would call for a significant penalty.

What that would be would, among other things, depend on the economic status of theoffender. [19] What is clear in this case, however, is that in addition to the culpability of the offender, deterrence is a key component, as theCourt of Appeal put it in Brown, of sentences for breaches of environmental protection statutes of which the EMA is one. [20] How these various strands come together to form an appropriate sentence that is just and fair turns entirely on the facts of eachcase. In this case, Celgar is part of a multinational corporation which, among other things, operates pulp mills.

At the trial of thismatter, Celgar was found to have discharged effluent into the Columbia River which did not pass the 96-hour rainbow trout test andexceeded its permit levels for BOD and TSS each on various days over a five-day period between November 20th and 25th of 2008. [21] Celgar admitted the actus reus of some, but not all, of these charges.

Even in those cases where it admitted to havingdischarged effluent that did not conform to its permit requirements, Celgar denied liability on the grounds that it exercised all duediligence in attempting to avoid these permit violations. [22] I held that Celgar did not discharge the onus on it to prove it exercised due diligence in preventing any foreseeable cause ofthese unlawful discharges.

It was plain in the trial that one of the causes of these offences was Celgar's failure to exercise appropriatecare to avoid the introduction of toxic substances into its effluent treatment system at a time when it had no capacity in its spill ponds. This failure led to the introduction of toxins into the ETS, leading to even more inevitable permit violations. [23] The Crown has calculated that on those days, Celgar's total discharge of effluent into the Columbia River, which did not meetits permit requirements, amounted to approximately 500 million litres.

I accept the submissions by counsel for Celgar that this figuresomewhat skews the scope of the spill and can tell us virtually nothing about the harmful impact of the discharge into the ColumbiaRiver. Though I will return to the question of the nature and the scope of the harm in this case momentarily, I will note at this juncturethat actual harm, though relevant, is not always present or a necessary component in environmental offences. [24] The principles of environmental sentencing mandate that the courts impose sentences that will discourage conduct that couldcause harm.

The concern is not just with actual harm, but also with the potential for harm. [25] Again, though I will return to this in greater detail in a moment, as I apply the factors in sentencing in this case, it bears notingthat at this point the Celgar mill sits right alongside the Columbia River. Celgar's operations benefit by the proximity of the river, as it isable to discharge its effluent into that river.

It has, however, a concomitant obligation, both legal and at this point I would suggest moral,to take care to avoid harming the river and the aquatic life in the river, which life does include endangered species. [26] In terms of the sentencing factors outlined in United Keno and Terrocco, several are at issue in this sentencing. In particular,the question of where Celgar sits in this case on the culpability spectrum is contentious, as is the question of its prior record or history ofpermit violations.

There is little dispute on the question of Celgar's remorse, but the parties have significantly different views on thequestion of harm or damage to the environment. [27] For these reasons, the parties are at a considerable distance in their views on what ought to be a fit sentence in this case. [28] The question of culpability in this sentencing turns on the appropriate characterization of the basis for the convictions on Counts2 to 4.

The case law establishes that culpability or lack of due diligence, which is really what is at issue in this case, must be assessed onsort of a sliding scale with pure intentionality at one end and a near miss at the other. The offender's conduct must be placed somewherealong that scale. [29] Celgar quite naturally argues that its conduct is closer, if not right at the near miss end of the scale.

That is to say that eventhough this court found Celgar failed to exercise due care to avoid what was an obviously foreseeable series of events leading to a permitviolation, it did so unintentionally. [30] Moreover, it had in place procedures and training manuals and training programs to avoid the very thing that occurred. That isto say, the unintentional deposit into the ETS of toxic substances that had nowhere to go to but into the aeration basin, and there bygravity feed to the river. [31] The Crown relies on my findings of foreseeability in the reasons for judgment, particularly at paragraphs 50, 54, and 55.

As thefollowing passage from paragraph 36 of Terroco indicates, foreseeability is a factor in sentencing. In determining the degree of culpability, the failure to take simple and inexpensive steps to avoid the unwanted consequence prior to thecontamination is an aggravating factor . . . Reasonable foreseeability impacts the sentence. If the danger is obvious rather than obscure,the failure to take reasonable care demonstrates a higher level of culpability and is an aggravating factor: R. v. Canadian MDF ProductsCo. (2002), 316 A.R. 228, 2002 ABPC 82; R. v.

Rio Algom Ltd. (1988), (ON CA), 66 O.R. (2d) 674 (C.A.); R. v.Fiesta Party Rentals

(1984) Ltd., [2000] A.J. No. 1679, 2000 ABPC 218, aff'd 2001 CarswellAlta 1817 (Q.B.) [32] As the Crown correctly submits, I have found the offences in this case were foreseeable.

While counsel for Celgar points toprocedures and training in place to avoid this very consequence, I found that had Celgar followed its own procedures, particularly theISO procedures regarding soap events that it had adopted, it should have prevented the spilled material from entering the main sewersystem where, because of the lack of capacity in the spill tanks, it had nowhere to go but to the ETS. [33] This was, to be sure, not intentional conduct on the part of Celgar. However, this is in no way a near miss. Celgar's ownexpert, Mr.

Klopping, had advised the company to take care with respect to in-mill spill control, so as to avoid depositing into the ETS

any material that would exacerbate problems emanating from its aeration basin. [ 34 ] I have found that because Celgar had virtually no spill pond capacity, it had to be extra careful and extra vigilant around in-mill spills. Had Celgar followed its own ISO policies, it could likely have avoided the impact of the ETS and these violations. [ 35 ] The Crown submits that this negligence, as I will call it, is compounded by the fact that Celgar has, in the words of the Crown, an appalling record of non-compliance.

In Terroco , the court wrote that a prior record is indicative of a concern for profit over compliance and can be an aggravating factor. [ 36 ] The question in this regard is what constitutes a record for the purposes of sentencing? There is no question on the evidence that in the years leading up to these offences, Celgar was struggling with the health of its ETS and had amassed a significant number of non-compliances with its TSS and BOD permit requirements. That much is clear from Exhibit 58 and the cross-examination of Ms.

Fiona Mackay, who ultimately admitted that in the five years leading up to these offences, Celgar recorded a significant number of non-compliances with its permitted levels of TSS and BOD discharges. The Crown calculates those to number 91. [ 37 ] Celgar submits that the concept of a record in the case law refers to past offences and dealings with authorities.

Here, as Celgar is a self-reporting entity, it is not fair to draw a comparison between its self-reporting of what it calls permit exceedances, and other instances where authorities have warned environmental offenders, or where persons or companies have been charged and convicted with environmental offences. [ 38 ] Ultimately the Crown conceded, and I accept, that this history of non-compliance may be weighed in the sentencing. It obviously attracts much less weight than a conviction or even a warning, but it is not an irrelevant fact.

I found at trial that Celgar struggled for many years to try to address problems around the health of its ETS, and I found for that reason it exercised due diligence in attempting to deal with spill pond capacity issues. [ 39 ] At the same time, care around in-mill spill control should have been heightened, particularly as Celgar has had these incidences of non-compliance which were related directly to the health of its ETS. [ 40 ] The Crown does not seriously challenge Celgar's evident remorse for these offences or its acceptance of responsibility.

Here I find that Celgar reported the spill to the Ministry of Environment without hesitation and appears to have been cooperative in the Ministry's investigation. I accept that these are mitigating factors in this case.

Moreover, as Celgar points out, since this event it has instituted additional practices and procedures to avoid a recurrence of these offences, particularly by invoking an interim spill pond reclamation plan. [ 41 ] In addition, it bears noting that representatives from Celgar were present at the trial of this matter, as were representatives from the Ministry of Environment, it might also be noted, every day of the trial and for submissions and today for sentencing. [ 42 ] To quote from the reasons at paragraph 26 of United Keno : The personal appearance of corporate executives in Court and their personal statement outlining the company's genuine regret and stating future plans to avoid repetitions of such offences is another indication of genuine corporate contrition.

Too often corporations appear solely by agents, through their lawyer, or through a lesser functionary of the company. This practice suggests the lack of significance the company accords the offence. If the Court is to properly assess the degree of sanctions required to effect the full rehabilitation of the offending corporation, the governing or guiding mind, in the person of senior executive officers, should be present and give evidence. And that certainly was the case here. [ 43 ] This then brings me to the question of damages.

The Crown has submitted, as noted previously, that on the days for which it has been charged for these offences, Celgar deposited some 500 million litres of effluent into the Columbia River, which did not meet its permitted requirements for TSS and BOD, and some of which failed the 96-hour rainbow trout test. [ 44 ] The Columbia River must be considered an environmentally sensitive area. As I have said, Celgar and other industries alongside the river benefit from its presence, but it is not just a conduit for industrial waste. It is a river bearing fish. Its denizens include endangered species.

It is fished in by First Nations and sports fishermen. It is enjoyed by all those who live near the river. [ 45 ] In my view, it is self-evident that great care must be taken to protect the Columbia River from unnecessary and avoidable harm.

In this case, while it might appear self-evident that the discharge of waste water from a pulp mill, even that which has flowed through a dysfunctional effluent treatment system, could potentially be harmful to the environment, I find I agree with counsel for Celgar that there is actually no evidence of harm in this case, such that harm could be considered an aggravating factor on this sentence.

There is simply too little evidence on which I could determine that the discharge of the effluent from Celgar's mills on the day in issue, which included significant amounts of cooling water, caused actual harm to the Columbia River or to aquatic life. [ 46 ] That leaves the question of the potential for harm.

At paragraph 48 of Terrocco , the court wrote that: The potential for harm is informed by the probability of the risk, the nature of the product, the likely magnitude of damage if the risk materializes and the sensitivity of the site including its proximity to population and fragile environments. [ 47 ] I have no doubt, as I have said, that the Columbia River is a sensitive environmental site, but I am left with considerable doubt as to the degree to which the effluent that was discharged in the river, that did not meet Celgar's permit requirements, had a potential for harm or, if so, what the magnitude of the risk was.

[48] It is clear in the authorities that the Crown must prove aggravating factors beyond a reasonable doubt, and in this case theCrown has not met that onus. [49] Though I have found no ascertainable harm in this case, its absence is not a mitigating factor. As the court noted in Terroco atparagraph 47, the absence of harm is a neutral factor on environmental sentencing. [50] It is now axiomatic, in my view, that in environmental sentencing, general and specific deterrence, as well as denunciation, areprimary objectives.

These objectives and the impact they will have on the ultimate sentence turn on many of the sentencing factorsalready discussed. It is obvious, for example, that specific deterrence will strongly influence a sentence where the offender is found tohave a high degree of culpability and low remorse. [51] However, other factors must also be considered; principal among those being whether there is any evidence of profitconsequent upon the offences. [52] In this case, Celgar's middling degree of culpability suggests a need for specific deterrence.

On the other hand, its acceptanceof responsibility and remorse signal a lesser need for specific deterrence. I find I am in agreement with counsel for Celgar that there isinsufficient evidence on which I could conclude that Celgar profited from these offences, or that these offences were part of a pattern ofoffending such as to signal a general disregard for its permit and environmental laws generally. [53] It is true that the offences took place over a period of five days.

However, there is no question that what caused these offencesto occur resulted from a spill several days prior to the commencement of those offences. [54] Leaving aside specific deterrence, Celgar submits that there is no basis for the sentencing objective of general deterrence in thiscase, as there is no evidence that pulp producers like Celgar routinely violate their permit, such as to justify this objective. [55] In my view, the principle of prevention is as fundamental to environmental sentencing as are the principles of abatement andremediation.

These kinds of offences call for a sentence which has, as one of its objectives, that of general deterrence. [56] The final principle of sentencing that merits consideration in this case is the principle of parity. That principle, in relation toenvironmental sentencing, was discussed in both Terroco and Northwest Territories Power Corporation, and is found in s. 718.2(

b) ofthe Criminal Code. That

section provides that a sentence should be similar to sentences imposed on similar offenders for similaroffences committed in similar circumstances. [57] In this regard, both the Crown and Celgar submitted over a dozen authorities in support of their respective positions regardingthe appropriate quantum of penalty. Both also submitted detailed written submissions outlining the principal aspects of the cases andultimately the findings on quantum.

Counsel for Celgar also provided additional detailed written submissions distinguishing those casesrelied on by the Crown. [58] I have reviewed all of the cases submitted, in addition to the written submissions, which themselves are comprehensive. I donot propose, for the purposes of these reasons, to re-review those cases or to retrace what is well-trodden ground.

I am satisfied that inorder to comply with the principles of parity, it is necessary in this case that the sentence comports, as much as possible, with those casesin which the offender was found to have been reasonably culpable, while at the same time remorseful, and in which little in the way ofdamages ensued or was proven. [59] I agree with counsel for Celgar that many of the cases relied on by the Crown involve much more in the way of environmentaldamage, as was clearly the case in R. v.

Canadian National Railway Company, (May 25, 2009) Stony Plain, Alberta Registry No.060656030P101001 and 081156291P101011 (ABPC) and R. v. Canadian National Railway Company, (May 25, 2009) North VancouverRegistry No. 49026-1 (BCPC). In each of those cases, the courts issued significant fines in relation to spills of toxic substances in thecourse of a derailment.

In both cases, negligence was found in relation to either the cause of the derailment or the failure to respondsatisfactorily to the harm caused by the derailment. [60] Similarly, in Northwest Territories Power Corporation, significant harm was caused when water breaching a dyke causedvegetation, earth, and permafrost soils to flow into a downstream lake and river. As such, in each case significant fines were imposed. [61] These and other cases relied on by the Crown, including R. v. Cusano Contracting Inc. et al, 2011 BCPC 348 , 2011BCPC 0348, R. v. A.G.

Clark Holdings Ltd. et al (January 12, 2012) Edmonton Alberta Registry No. 110839388P1 (ABPC) and R. v.Syncrude Canada Ltd., (October 22, 2010) St. Albert, Alberta Registry No. 090157926P1-01-001 (ABPC) all involved significantenvironmental damages. [62] On the other hand, the facts in R. v. West Fraser Timber Co. Ltd., (April 9, 2009) Kitimat Registry No. 26361-1 and 26720-1(BCPC) are not dissimilar to this case. There West Fraser pled guilty to the deposit of 1.96 million U.S. gallons of pulp mill effluent intowaters which ultimately made their way into the Kitimat River.

There was some evidence of environmental damage in that case, but itwas not found to be significant. Like Celgar, West Fraser was cooperative in the subsequent environmental investigation and wasremorseful.

As in this case, the court was satisfied that specific deterrence was not pressing, but that general deterrence applied, as amessage had to be sent to the parties engaged in industrial activities where these risks exist to take steps to avoid environmental harm. [63] In West Fraser, having the benefit of joint submissions, the court ordered the defendant to pay $130,000 in fines, much of it byway of creative sentencing, to the Habitat Conservation Trust Fund. [64] Counsel for Celgar submits that West Fraser is distinguishable on the grounds that the effluent deposited into the water bodieswas untreated, that there was some evidence of harm, and that West Fraser had a prior record. [65] Aside from West Fraser's record, in my view the case is similar to this.

I wonder, for example, how treated the effluent in thiscase was, when what was deposited was effluent containing toxins from a pulp operation spilling into a gravity-fed ETS system that itself

was not working properly. [66] In my view, there are also similarities between this case and that in R. v. Teck Cominco Metals Ltd., 2009 BCPC 454 ,2009 BCPC 0454. In that case again the court was faced with joint submissions in which the parties jointly suggested a penalty in therange of $115,000. As in this case, the spill into the Columbia River from Teck Cominco came about as a result of negligence on thepart of the corporate defendant.

However, in my view, the culpability of the defendant Teck was lower than in this case, in the sense thatthere was no basis for a heightened vigilance against spills, as I found there was here. There was in Teck also no evidence of actualharm, but there was some evidence of potential for harm. [67] Celgar submits that the cases which most closely approximate this case are R. v. Fibreco Pulp Inc., [1993] B.C.J. No. 218(BCSC); R. v. Finlay Forest Industries Inc., 1999 BCPC 37; R. v. McLeod's By-Products

(1978) Ltd., 2003 BCPC 91 , 2003BCPC 0091 and R. v. Valley Rubber. [68] In the case of Fibreco, Maczko J. upheld the sentence in which the lower court imposed a fine of $5,000 per day for a 40-dayperiod in which the defendant, a consortium of companies, put into place a poorly and cheaply designed pulp mill which it knew wasdangerous and which ultimately failed, resulting in the introduction of breaches of its permits to introduce waste into the environment fora period of 40 days. [69] The facts in Fibreco are particularly egregious.

The company was not only highly culpable and reckless, but it benefited fromits lack of care. Were the case decided today, I suspect the penalty would have been much higher than $5,000 per day, which in thatcase cost the defendant $200,000 in any event. Nevertheless, Celgar submits that a fine in the same amount would be appropriate in thiscase, with the result that the appropriate quantum would be $25,000. In my view, Fibreco is actually a $200,000 case, and today wouldhave been much higher. [70] In R. v. Finlay, the court was again faced with joint submissions with an agreed statement of facts.

Those facts were introducedby counsel for the defendant, Finlay Forest Industries, the operators of the pulp mill in issue. The permit exceedances in that case weredescribed as moderate and there was no evidence of harm, nor, for the purposes of this sentence, was there much in the way of adiscussion of culpability. The cause of the failure of Finlay's effluent treatment system was discussed, but not in ways that wouldcharacterize the defendant's conduct as being anything but neutral. In Finlay, the court acceded to the joint submission and fined thedefendant in the amount of $25,000. [71] In R. v.

McLeod By-Products, also a case that proceeded by way of joint submissions, the court imposed a fine in the amount of$50,000 for the charge of failing to maintain high standards of housekeeping, albeit in relation to a rendering plant. I confess, though Iread the case carefully, there was nothing there that was of assistance to me in this sentencing. [72] Most of the cases referred to by counsel share some similarities with this case, but none are on all fours. The cases I find to bemost similar are West Fraser and R. v.

Teck Cominco, both of which are well above Celgar's suggested level of $50,000, but well belowthe Crown's recommended fine in the amount of $600,000. There are both similarities and differences among these cases and this case,to be sure. [73] Like Teck Cominco, Celgar is a large international company with considerable assets. As in Teck, there is a distinct element ofnegligence in this case and a violation that could have been avoided, albeit not with a simple fix.

The evidence of harm differs in thesecases, but in comparison to Teck, the permit violations in this case went on for days, as opposed to a one-time only event. In addition tothese factors, I do bear in mind the principles of general deterrence are applicable in this case and, relative to Celgar's size, mandate a notinsignificant fine. [74] In considering the appropriate quantum of fine in this case, I bear in mind also that the maximum penalty under the EMA for aviolation of a permit is $300,000.

However, s. 122(1) of the EMA provides that such a fine can be imposed for each day the offence iscommitted. [75] While these fines are less than the maximum under other legislation, such as the Fisheries Act, for example, the provisionsindicate the legislature places considerable importance on environmental compliance and the courts must take that into consideration. [76] I have found that Celgar negligently failed to prevent the discharge of effluent, contrary to its permitted requirements. I havefound its culpability to be higher than the near miss, but lower than an intentional act.

It is somewhere in the middle of those two pointson the spectrum, but closer to the lower end. [77] I take into account, as I must, mitigating factors. These include Celgar's obvious remorse, the fact that it took responsibility forthese offences, and made concerted efforts to ensure the event would not be repeated.

I have considered Celgar's history ofnon-compliance but, putting that into perspective, attach only a slight weight to that factor. [78] I have also considered that though Celgar has been convicted on three counts of violations over five days, the offences are aconsequence of one in-mill spill which occurred on November 18th of 2008. [79] In all, and bearing in mind the authorities on quantum and the principles and objectives of sentencing I have discussed, Isentence Celgar to a fine of $10,000 on each of the three counts, for a total of $30,000. [80] I order, pursuant to s. 127(1)(

i) of the EMA that Celgar pay $120,000 to the Habitat Conservation Trust Fund for conservationprojects that restore, maintain, or enhance native wild freshwater fish populations or habitat within the Columbia River watershed or forenvironmental studies focused on aquatic systems within the watershed, provided that not more than half of the total funds ordered maybe spent on such studies. [81] I order further, pursuant to s. 127(

h) of the EMA, that Celgar publish and maintain on its website, until July 31st of 2013, thefact that it was convicted on three counts of a violation of the EMA. As the parties have been unable to agree on the wording of this

aspect of the sentence, unless they otherwise agree, I order that Celgar post the wording of Counts 2, 3, and 4, as they appear on the information. In addition, Celgar must also include links to both the reasons for judgment in this case and these reasons for sentence, also until July 31st of 2013. [ 82 ] Unless the parties have additional submissions on time to pay, I order that Celgar pay these fines within 30 days of the date of this order. [ 83 ] MS. WALTON: If I may just have a moment, Your Honour? [ 84 ] MR. GERHARDT: Thank you, Your Honour. [ 85 ] THE COURT: All right. Thirty days? [ 86 ] MS.

WALTON: Thirty days is fine. [ 87 ] THE COURT: Okay, all right, thank you. (REASONS CONCLUDED)