R. v. Lasante, 2019 BCPC 96

Citation: R. v. Lasante 2019 BCPC 96 Date: 20190219 File No: 25268-1 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. EXECUTIVE FLIGHT CENTRE FUEL SERVICES LTD. and DANNY LASANTE Re Accused D. Lasante REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MROZINSKI Counsel for the Crown: J. Cliffe, Q.C. and A. Switzer Counsel for the Defendant: J. Hepner, Q.C Place of Hearing: Nelson , B.C. Date of Hearing: February 19, 2019 Date of Judgment: February 19, 2019

[ 1 ] THE COURT: Mr. Danny Lasante is before the court today for sentencing, having been found guilty at trial on the charge of unlawfully introducing waste, namely 35,000 litres of Jet A-1 fuel, into both Lemon Creek and the Slocan River, in such a quantity as to cause pollution in violation of s. 6(4) of the Environmental Management Act , which I will refer to hereafter as the EMA . [ 2 ] At the trial of this matter, Mr. Lasante advanced a number of defences to this and other charges, one of which was the defence of due diligence.

I was satisfied that the Crown led proof beyond a reasonable doubt that on July 26, 2013, Mr. Lasante drove his tanker truck, filled with Jet A-1 fuel, onto a narrow road whereupon, at a certain juncture, the road gave way, carrying the truck, the fuel and Mr. Lasante into Lemon Creek. I accepted the Crown met its onus of proving the actus reus of this offence. I was not satisfied, on balance, that Mr. Lasante proved he exercised due diligence in an effort to avoid committing the offence. This reference, essentially to the gravamen of the offence, of which Mr.

Lasante was found guilty is important in this sentencing, as no matter what other sentencing principles may apply, it is a fundamental principle of any sentencing that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 3 ] At issue in this sentence hearing is whether, bearing in mind the applicable sentencing principles and the facts herein, a fit sentence for Mr.

Lasante would be a conditional sentence, with or without a fine, or, as the Crown submits, a fine in the amount of $30,000, payable, largely, to the Habitat Conservation Trust Fund. [ 4 ] I have set out my findings of guilt in my reasons for judgment dated March 1st of 2018. Those reasons are lengthy and it is unnecessary to reiterate those here today, though I have considered them carefully. Still, it is important to summarize, however briefly, those facts which I find are integral to determining a fit sentence in this case.

It is useful also to consider those facts in the context of the principles of sentencing for environmental offences. While the parties' sentencing positions are disparate, they do not disagree on the principles that must be applied in this sentencing. [ 5 ] The principles governing environmental sentencings, first articulated in R. v. United Keno Hill Mines , (1980) 10 E.L.R. 43 and subsequently adopted by the Alberta Court of Appeal in R. v. Terroco Industries, 2005 ABCA 141 , have long been accepted in our courts. While they were recently adopted by the British Columbia Court of Appeal in R. v.

Brown , 2010 BCCA 225 they have, for some time, been applied by British Columbia sentencing courts in numerous decisions, some of which are before me today. [ 6 ] These principles call for sentencing judges to consider the degree of culpability of the offender, the nature of the environmental harm or damage done and the offender's evidence of remorse. A number of other cases provided to me in this sentencing hearing set out those same principles.

They are summarized at paragraph 75 of the decision of the court in Beets and Tamarack Inc. , 2018 YKSC 21 where the court wrote that in combination, the principles from both United Keno Hill Mines and Terroco essentially are: the criminality of the conduct or the culpability of the offender; the nature of the environmental damage or harm; the extent of attempts to comply; remorse and acceptance of responsibility; in some instances, the size of the corporate offender; benefits realized by the offence; the offender's prior record and past involvement with authorities; and finally, deterrence. [ 7 ] I propose to consider my disposition in this case along those lines, though some factors will be less relevant than others and some will be subsumed by others.

I bear in mind also the purpose and principles of sentencing set out in s. 718 and 718.2 of the Criminal Code and those apply equally. Among other things, as in every sentencing, I have to consider the principle of proportionality that I have already referred to, the principle of parity, as well as aggravating and mitigating circumstances. Many of these are incorporated in the principles derived from the Keno Hill and Terroco line of cases in any event. [ 8 ] Turning to the first question, which is the degree of culpability of the offender, I have noted that Mr. Lasante advanced the defence of due diligence.

The evidence regarding his effort to avoid the spill bear on the degree of his culpability. As the court, in Terroco writes, starting at paragraph 35: Culpability should be a dominant factor in sentencing for environmental offences . . . On some occasions the Crown will come close to establishing that the release was intentional. Conversely, there are acts which cause harm despite the exercise of due diligence which provides an absolute defence.

In between these two extremes are a myriad of circumstances ranging from cases of recklessness to those where the defence of due diligence failed but the evidence showed a near miss. [ 9 ] The extent of the offender's culpability, therefore, is highly fact specific. In this instance, Mr. Lasante submits the facts, as found at trial, see him as being closer to the near miss end of the spectrum than the intentional end. While not disagreeing that Mr.

Lasante did not intend to deposit jet fuel into Lemon Creek, the Crown, nonetheless, characterizes his conduct as a case of a miscalculated risk, or conduct bordering on reckless. That is to say, the Crown maintains the spill was no near miss. [ 10 ] At trial, I found that on July 26, 2013, Mr. Lasante started his day in Revelstoke, agreeing to take a load of jet fuel over to Lemon Creek. He was rushed, as evidenced by his failure to obtain a map, or even a Google printout of the delivery location. In light of the fact that Mr.

Lasante was rushed to deliver fuel to assist in the suppression of two wildfires in the Slocan valley, I say it is understandable, perhaps even laudable. Still, as the holder of a Class 1 driver's licence, Mr. Lasante had obligations. He was charged with the delivery of a dangerous substance. He was traveling over mountainous and ultimately unknown roads. His mission, however worthy, could never take precedence over his duty to exercise all reasonable care. Mr. Lasante was, I found, told by his supervisor, Mr.

Nickel, to drive the fuel up to the Lemon Creek, where he would see a road off to the left and there find the Lemon Creek staging area. I have gone through this in some detail in my reasons for judgment. Suffice to say, at this point, that Mr. Lasante missed the road leading into the staging area and instead, turned left onto the Lemon Creek Road. He was, I found, quite certain, at this turning point, that he was on the right road, despite passing several signs indicating, in no uncertain terms, that the road was closed and that it was not maintained.

It was argued at trial that these signs would not have meant the same thing to Mr. Lasante as to what might be described as a civilian driver; that Mr. Lasante was effectively working for the Province, or was an agent of the Province, and that it would not have surprised him to have to travel down such roads to deliver fuel. However, I found that around the three kilometre mark, Mr. Lasante knew he was on the wrong road. The road, by then, was narrowing, as it ran along Lemon Creek, and it was not maintained. At that point,

Mr. Lasante knew that the road closed signs he had passed meant precisely that, that the road was closed and that it was not maintained. It was not intended for travel, let alone by a large fuel tanker laden with 35,000 litres of jet fuel, a dangerous and noxious substance. Rather than stop, or back up, or investigate the road in any way, Mr. Lasante followed his instincts, based on his significant back road experience. He knew, and he was correct about this, that there would be a turnaround point at some way along the road. [ 11 ] Mr. Lasante pressed on, driving as carefully as he could. He came upon the

section of the Lemon Creek Road that ultimately collapsed on his way toward the turnaround. He hugged the cliff side of the road, but still his rear tires of the articulated trailer swung out over the roadway on the creek side. The road was wet and Mr. Lasante would have seen this. He turned around and on his return, on that same stretch, again, kept his driver's side well along the cliff side of the road. Yet again, his back wheels swung out over the road on the creek side. In this instance, the road edge collapsed and Mr. Lasante's fuel tanker was swept into Lemon Creek. [ 12 ] I found at trial that Mr.

Lasante took no steps toward the exercise of due diligence, other than driving as best he could in the circumstances. The Crown submitted at trial, and I did not disagree, that there were steps Mr. Lasante could have taken. He could have backed up once he knew he was on the wrong road. Assuming that was not feasible in his mind and there is no evidence he gave it any thought, he could have stopped and radioed or gone for help. He could have examined the roadway. He could have given some consideration to the stretch of the roadway at the portion at which it ultimately collapsed.

He did nothing, other than drive forward as carefully as he could. [ 13 ] The court, in Terroco , writes at paragraph 36, that: In determining the degree of culpability, the failure to take simple and inexpensive steps to avoid the unwanted consequence . . . is an aggravating factor . . . If the danger is obvious . . . the failure to take reasonable care demonstrates a higher level of culpability and is an aggravating factor . . . [ 14 ] Mr.

Lasante submits that while this court found, at trial, the collapse of the road was a reasonably foreseeable event, it was not such an obvious event as to be considered an aggravating factor in this sentence. In other words, it should not serve to elevate Mr. Lasante's culpability. I find I agree that while the collapse was reasonably foreseeable in the legal sense, it was not, on the evidence before me, an obvious risk. [ 15 ] In terms of the failure to take simple and inexpensive steps, also referred to by the court in Terroco , it is not, I find, that Mr. Lasante was callous or reckless. It is that Mr.

Lasante did not appear to give any thought to his situation. In that regard, I find I agree with the submissions of the Crown at this sentence hearing. [ 16 ] The collapse of the road was reasonably foreseeable, in that any reasonable person, giving it some thought, could foresee these damages with this truck and this load, along this creek. Mr. Lasante did not give the situation the reflection it deserved, not because of outright recklessness, he did care, and he wanted to deliver his fuel. He was simply overconfident about his experience on such roads.

He thought if he drove carefully, he could turn around and make it out and yet deliver the fuel. [ 17 ] Mr. Lasante's culpability is not at the very lowest end of the spectrum. It is not a near miss, nor, however, is it reckless or intentional conduct. Mr. Lasante's conduct falls somewhere near the low end of the spectrum, though not at the lowest point.

I would characterize his conduct as less reckless than careless, as focusing too much on this task as a deliverer of fuel, rather than as a transporter of a dangerous substance. [ 18 ] The other significant factor that bears consideration in this sentencing is the impact of the spill or the harm or damage caused to the environment. The damage caused by this spill was canvassed extensively at trial. Its long term environmental impact may not yet be known. There is no evidence of that either way.

However, at trial, the Crown did prove that the deposit of 35,000 litres of Jet A-1 fuel in a single instance caused harm and even death to some of the aquatic life in both the Lemon Creek and Slocan River. The fuel, which was widely dispersed, remained in these waters for some time. Testing and the clean-up effort took some three years and was monitored not only by SNC-Lavalin, the company hired by Executive Flight Services to undertake the environmental clean-up, but by Provincial Government employees as well. Mr.

Burrows, for example, testified to monitoring the clean-up plan from the summer of 2013 up to August of 2016. Testing and monitoring, both immediately and after the spill, showed evidence of both the death of fish and of vertebrates, but also a lingering effect on the environment. [ 19 ] A number of area residents testified as to both the immediate and long term effects of the spill. Many found the odour of the jet fuel overwhelming. They described feelings of nausea, headaches and burning in their eyes. Dr.

Corneil, the medical health officer for the Interior Health at the time, issued several public health orders. He closed Highway 6 in the Slocan Valley, the main transportation corridor between Slocan City and Highway 3. He issued an evacuation order of residents that continued into the next day and finally, Dr. Corneil issued a water restriction order on anyone within 300 metres of Lemon Creek, which did not expire until August 9th of 2013. [ 20 ] Many residents were thus forced to leave their homes, for a day or more in some cases.

Many were subject to the water use restriction. [ 21 ] At trial, this court heard of a police officer attending at the scene shortly after the spill to direct traffic away from the fumes and himself spending hours in the fumes. [ 22 ] The environmental damage was significant. It angered local residents. It does so to this day. The Slocan Valley itself can be described as pristine, although not undisturbed by industry. It is still isolated. It is home to an abundance of fish and wildlife. It is a source of pride to many who live there.

It is, to anyone fortunate enough to visit, awesome in its beauty. [ 23 ] In Terroco , the court cited both R. v. Kenaston Drilling (Arctic) Ltd ., (1973) 41 D.L.R. (3d) 352 and United Keno Hill Mines for the proposition that environmental damage to a delicate site that is not easily rejuvenated may be an aggravating factor. In Kenaston , for example, the court found that the tundra, though frozen over many years, or months, was still delicate, easily damaged and once damaged impossible to repair. There is little evidence here of permanent damage, but the area is clearly sensitive as well as populated.

The fact that this spill occurred where it occurred and the degree to which the area was harmed is an aggravating circumstance on

sentencing. [ 24 ] Mr. Lasante submits that he is remorseful for this spill. First, it bears emphasizing that the fact Mr. Lasante pled not guilty to these offences and maintains his plea is a neutral factor. I further agree with Mr. Lasante that this fact cannot count against him in this sentencing. Moreover, I do not doubt that Mr. Lasante regrets the spill. I accept, as counsel submits on this sentencing that his actions immediately after the spill were one of concern, that is, concern for the environment and those in it. He knew the situation was emergent.

He ran, as I described in my reasons, from the crash site, covered in fuel, for some many kilometres to find help. He was frantic. The incident was frightening for him personally. He may well have been injured or worse. I doubt none of these things. [ 25 ] Remorse is an important factor in every sentencing, as the court in Terroco writes at paragraph 39: An offender who sees no error is more prone to re-offend than is one who recognizes guilt and takes responsibility. [ 26 ] Mr. Lasante submits that his conduct following the spill is proof of his remorse. As I say, I accept entirely that Mr.

Lasante was devastated by these events. He stated in this sentencing submission that the effect of the spill on him, the fact he may have suffered possible mortal injury, has been lost in these proceedings. I can assure you, Mr. Lasante, that that is not the case. I have made note in my reasons for judgment of this fact and I acknowledge it again here today. [ 27 ] While Mr. Lasante is remorseful for this spill, I find I am, or was at the time of trial at least, less convinced of his remorse for what caused the spill, that is, his lack of care. [ 28 ] At trial, Mr.

Lasante testified that he did nothing to change his driving habits after the accident. His evidence at trial was that he drove then just as he drove on July 26, 2013. Today, before this court and in his sentencing submissions, there is evidence that Mr. Lasante's driving habits have changed as a result of the spill. I accept, on balance, that Mr.

Lasante is remorseful to the extent that his driving habits have changed and that he has been so deeply affected by these proceedings he is unlikely to offend in this manner again. [ 29 ] Virtually every authority on environmental sentencing emphasizes the imperative that these sentences send a message of general and specific deterrence. Whatever may be said of the need for specific deterrence in this case, Mr. Lasante can do little to effect the principle of general deterrence. It exists in every such sentence.

The EMA , as with other environmental protection legislation, is aimed at the prevention of environment damage. The penalties are significant, up to one million dollars in the case of a breach of s. 6(4) of the EMA, reflecting the seriousness of environmental offences generally. Moreover, as the court in Terroco notes, at paragraph 54, also referred to by the Court of Appeal in R. v. Brown : . . . when the maximum fines under an environmental statute are high, it is a message that low or nominal fines do not meet the goals of the statute. [ 30 ] In regard to specific deterrence, Mr.

Lasante submits his low level of culpability, this trial experience, and his driving record all signal a lesser need for a sentence designed to specifically deter this conduct in the future. [ 31 ] Mr. Lasante is now 40 years of age. He appears, in this sentencing, with no criminal record and despite having driven professionally for the past 20 years, has no driving record before this court. This incident is the first such incident in Mr. Lasante's career. His history shows no pattern of poor driving. I agree this is not a sentencing in which a strong message of specific deterrence need be sent. [ 32 ] Mr.

Lasante also points to the mitigation work conducted on behalf of his employer, Executive Flight. I have touched on that briefly earlier in these reasons. Executive Flight Services hired SNC-Lavalin to oversee the clean-up. Others were also on the job, working alongside that company. The cost of the clean-up totalled some five million dollars. It was, as I understand it, borne entirely by Executive. Moreover, it appears that all of the required clean-up has been done. [ 33 ] The Crown submits the clean-up and costs are irrelevant in this sentencing. I find I agree with Mr.

Lasante that these facts should not go unnoted. [ 34 ] As Mr. Lasante notes in his sentencing submissions, in many of the sentencing cases before me, monetary penalties have been imposed where the offender has benefited in some way from the offence and/or where significant rehabilitation or restoration is required. I accept that Mr. Lasante in no way benefited monetarily or otherwise from this offence.

I accept also that there is no need for this court to address the rehabilitation of the spill site in this sentencing. [ 35 ] In addition to these sentencing considerations, derived from the Keno / Terroco line of cases, are the purposes and principles set out in

Section 718 and 718.2 of the Criminal Code . The purpose of sentencing generally, is to protect society and to contribute, along with other crime prevention initiatives, to a safe, peaceful and just society by imposing just sanctions that have one or more of the objectives set out in the Code , including denunciation, general and specific deterrence and rehabilitation.

To a greater or lesser degree all of these are valid sentencing objectives in this case. [ 36 ] The sentence must be proportional and a sentence should be similar to those imposed on similar offenders, for similar offences, committed in similar circumstances. [ 37 ] Mr. Lasante submits, based on the case authorities before me in this sentencing, that this latter principle, the principle of parity, supports a conditional discharge in his case.

Alternatively, at this hearing, he submits the principle of parity would not support a fine above $10,000. [ 38 ] As I say, the Crown submits the authorities and the principles of sentencing together support a fine totalling $30,000. [ 39 ] In support of its sentencing position, the Crown has submitted, in addition to the authorities I have already mentioned including

R. v. Brown , the decisions of R. v. Basso , 2001 BCSC 801 , R. v. Smith , BCPC File No. 16342-1, 16559-1, Colwood Registry, September 24, 2012, R. v. Sapp , 2005 BCPC 207 , R. v. Roberts , 2018 BCPC 207 , R. v. Steer , BCPC No. 6091-1, December 11, 2013 Masset Registry, and R. v. Bolt , 2011 NLTD 20 . [ 40 ] In R. v. Brown , two accused property owners were sentenced to a fine totalling $5,000 each, or $10,000 in total, for having impaired nearly 8,000 square kilometres of fish habitat while clearing their land to accommodate the construction of a home. The Crown appealed the sentence. The

summary convictions appeal judge ruled the sentencing judge erred in imposing a monetary penalty that did not adequately address the objectives of denunciation and deterrence and the principle of parity. The fine was increased to a total of $30,000.

That decision was upheld on appeal and it is the appeal decision that is before me in this hearing. [ 41 ] At paragraph 16 of the reasons of the Court of Appeal in Brown , a number of additional cases in which courts imposed monetary penalties of over $20,000 are canvassed. [ 42 ] Bearing in mind that sentencing is an individual exercise and fact dependent, I find I agree with Mr.

Lasante that an important consideration in Brown , discussed particularly at paragraph 17, and one that makes it distinguishable from this case, is that there the lower court judge issued a monetary order in the absence of a restoration order. [ 43 ] In this case, although Mr. Lasante did not pay for the restoration work it is something that would have been well beyond Mr. Lasante's ability in any event. Moreover, the brief reference to the reasons of the original sentencing judge, at paragraph 7 of Brown , indicate that the defendants in Brown quite deliberately caused the environmental damage at issue.

Their culpability was much higher than Mr. Lasante's. [ 44 ] At issue on the sentencing appeal in R. v. Basso , another of the cases relied on by the Crown, was the question whether a fine totalling $30,000, in addition to a restitution order in the amount of $55,000, was a fit sentence. It bears noting that the defendant, Basso, did not appeal from the restoration order. Mr. Basso was convicted of damaging fish habitat when he placed significant quantities of granite blasted from his property along the foreshore adjacent to his property.

The effect was to cause harm to sedge grass which was important to young salmon for food and protection. Mr. Basso had one previous conviction for an environmental offence, but was otherwise a productive citizen. The sentencing judge found Mr. Basso's culpability in regard to the offence was low, but for his continuing to deposit the rock, even after he was ordered to stop. On that count, the court found Mr. Basso's culpability was high and that it was an aggravating factor. [ 45 ] While not disagreeing with any of these findings, the

summary conviction appeal judge nonetheless found the sentence below was harsh, excessive and infringed the principle of totality. The sentence was reduced to $20,000, in addition to the restoration order which remained undisturbed. [ 46 ] The sentencing court in R. v. Smith accepted a joint submission for a three-month conditional sentence order for the offence of dangerous driving, and a suspended sentence with community work service for unlawfully depositing a deleterious substance in water frequented by fish. As in this case, the environmental damage was caused when the driver, Mr.

Smith, lost control of his fuel tanker and crashed near Goldstream River, an important salmon-bearing stream on the south island. Mr. Smith had a criminal record, but just as in the Basso decision, it played no role in the sentencing. Like Mr. Lasante, Mr. Smith did not intend to deposit the fuel into the river, rather, that occurred as a result of the motor vehicle accident. Quite distinct from this case, however, is that Mr. Smith was clearly driving dangerously at the time of the accident. He had, as the court found, been consuming alcohol before driving. He was also intentionally sleep-deprived.

His culpability is clearly much greater than in the case before me. [ 47 ] In R. v. Sapp , the court again accepted a joint submission for a fine totalling $44,000, $40,000 of which was to be paid into the Habitat Conservation Trust Fund. At trial, Mr. Sapp was convicted of intentionally altering the landscape around a waterway and thereby destroying and disrupting fish habitat. The trial judge described the environmental damage as immediate, devastating and wide- ranging. On sentencing, the court noted that Mr.

Sapp was hardworking, with no prior history of such offences, that he did not act out of a profit motive and that he testified as to his general remorse for his action. Still, the conduct was intentional, taking place over a period of years and the damage was significant. [ 48 ] In R. v.

Roberts , the court dealt with fines for violations of the Fisheries Act , including for failing to have a revival tank in operation at all times when a seine net is in the water and for failing to record daily catch records as required. [ 49 ] The court found the defendant's culpability to be high, as the master of his vessel, the damage to the fishery to be low almost immeasurable, but still, the need for general deterrence was significant in that case. The fines were ultimately modest.

Roberts does, however, serve to emphasize the importance of the sentencing principle of deterrence, particularly in regard to Fisheries cases, which are notoriously difficult to regulate. [ 50 ] Similar considerations applied in R. v. Steer where the defendant was fined $20,000 for placing his fish traps in an unlawful area, or at an unlawful time. As in Roberts , fishing offences must attract sentences that can serve as a general deterrent. Again, that is particularly so because the activity is, by necessity, self-regulated. [ 51 ] Finally, the Crown relies on R. v.

Bolt , in which the court imposed a fine totalling $10,000 for the deposit of a deleterious substance in the waterway and $5,000 for failing to report the deposit. [ 52 ] The offence occurred as Mr. Bolt was refuelling his vessel and fuel spilled out of his tank, onto the wharf and into the water. It is apparent that the spill was caused when, as he was refuelling, Mr. Bolt noticed a crack in one of the fuel pipes. He tried to contain the fuel by wrapping his jacket around the pipe, but to no avail. The fuel leaked and Mr. Bolt declined to report the spill until the next day. [ 53 ] Mr. Bolt pled guilty.

The sentencing judge held he had failed to take appropriate evasive action to avoid the spill and was motivated by an interest in going out to fish, effectively a profit motive. Mr. Bolt's sentence was upheld on appeal. [ 54 ] The

summary of the Crown's authorities demonstrate that fines as high as $40,000 have been imposed for environmental

offences involving harm to fish habitat. In my view, many of the cases are distinguishable. In many, the culpability of the offenders arefar greater than here. In others, the offences are so dissimilar as to be of modest assistance to me in this sentencing. Still, it is the casethat sentences for the destruction of fish habitat do range from a custodial sentence down to fines ranging from $1,000 to $40,000. Iacknowledge also that many of these cases are older and the fines, if adjusted for inflation, would be much greater. [55] Mr. Lasante relies on three cases, R. v. Beets, 2018 YKSC 21, R. v.

Johnson, 2010 NWTTC 17, and R. v. Goodman et al, 2005BCPC 482 , 2005 BCPC 0482 in support of his submission that a fit sentence in this case is either a conditional discharge or afine in the range of $5,000 to $10,000, $10,000 at most. [56] In Beets, the individual, Anton Beets, was fined $4,000 for one count of permitting the deposit of wastewater or waste in watermanagement area and an additional $2,000 for failing to report the deposit - though clearly Mr. Beets did not hide the fact. Mr.

Beets'company, Tamarack, of which he was at least one director, was fined $10,000 for the offence of permitting the deposit of waste, $5,000for failing to report the deposit and additional fines for failing to comply with conditions of his water licence. [57] The facts in Beets are unusual. While being filmed as part of a television series exploring gold mining in the Yukon Territories,an employee of Tamarack asked Mr. Beets if he objected to his pouring gasoline into a dredge pond that was subsequently lit by anotheremployee. Mr. Beets replied on camera that he did not mind, though not in those words.

The conduct was deliberate and egregious, asthe trial court found. [58] Mr. Lasante relies on this as support for the proposition that a fine of $4,000 for the deposit of waste, akin to the deposit in thiscase, is within the range of sentencing for this offence. Moreover, Mr. Lasante notes that Mr.

Beets’ conduct was far more egregious, aswas, I would note, the conduct of the employee who started matters and yet was fined only $1,000. [59] Still, as the sentencing appeal court notes in Beets, at paragraph 74, while the principle of parity in sentencing must be regarded,it is secondary to the fundamental principle of proportionality. What is an appropriate sentence given the culpability of the offender andthe gravity of the offence? In Beets, the offender's culpability was found to be located somewhere in the mid-range on the full spectrum.

The gravity of the offence, the impact on the environment is another matter. It was effectively not ascertainable. That was, the courtfound, not a mitigating factor, but merely a neutral one. [60] The other difficulty I have in applying Beets as within the range of sentencing for Mr. Lasante is that I find it difficult todistinguish between the sentence imposed on Mr. Beets and Tamarack. Clearly the court found the two were separate and could be heldseparately liable. But as a director of Tamarack, Mr. Beets would clearly have been impacted by that sentence as well. [61] Mr. Lasante relies also on R. v.

Johnson, wherein Mr. Johnson was fined $1,000 for unlawfully depositing liquid hydrocarbonsinto a lake. The fuel oil at issue leaked from a tank attached to Mr. Johnson's cabin and into the nearby lake. The fine was, in fact,jointly agreed upon by the parties. At issue was whether Mr. Johnson should have been ordered to pay restitution. The sentencing judge ultimately concluded that he was and ordered restitutionin the amount of $50,000. It is, I find, not possible or useful to try to sever the fine imposed on Mr. Johnson from the restitution order. [62] Finally, Mr. Lasante relies on R. v.

Goodman as authority for the proposition that an absolute or conditional discharge is withinthe range of sentencing for this offence. [63] In Goodman, three defendants were found guilty of one count of depositing a deleterious substance in water frequented by fish. [64] The facts in Goodman are also quite unusual. First, the substance at issue was dislodged sediment. The sediment wasdislodged during the course of a propeller wash, or a "prop wash dredging operation" as it was known.

The trial judge found theoperation was a commonplace and a long accepted practice in the area, but still, it was a practice that required a permit. More unusually,the trial judge found the Department of Fisheries learned of the proposed operation before it occurred, yet, rather than contact Mr.Goodman, the primary offender, to ascertain whether he intended to get a permit, officers arrived on scene at the day of the operationand allowed it to continue, so as to gather evidence. Once officers told Mr. Goodman to cease operation, he and his co-defendantscomplied. [65] Mr. Goodman's co-defendants were Mr.

Osadiuk, the captain of the tugboat doing the dredging, and Captain Bond. CaptainBond was Captain Osadiuk's father-in-law and was present simply to lend a hand. The trial judge found that neither knew a permit wasrequired for the dredging operation. In the result, Captain Bond was absolutely discharged and Captain Osadiuk, who lost his tug as aresult of the charges, was conditionally discharged. Mr. Goodman, whose culpability was much greater, was fined $7,500. [66] The circumstances in Goodman are unusual, as I have noted.

In my view, Goodman, in no way, provides support for theimposition of a conditional discharge in this case, based on the sentencing principle of parity. While the Criminal Code allows this courtto impose an absolute or conditional discharge for this offence, the case law before me in this sentencing does not compel such asentence, based on the principle of parity. Still, Mr. Lasante seeks a conditional discharge and this court must in turn consider, applyingthe Fallofield test, whether such a disposition would be fit. Fallofield sets out a two-part test for the grant of a conditional discharge.

First, the court must be satisfied that it would be in the accused's interests. Secondly, the court must be satisfied that the grant of such anorder would not be contrary to the public interest. [67] I accept that a conditional discharge would be in Mr. Lasante's interests. He comes before this court, at the age of 40, with noconvictions and no driving record. He is contrite. [68] The more difficult question is whether, in the circumstances of this case, it would be contrary to the public interest.

In thisregard, I acknowledge, as the court in Fallofield does, at paragraph 21(6) that while public interest and the deterrence of others must begiven due weight, it does not preclude the judicial use of the discharge provisions. That is not unlike the comments of the court in R. v.Proulx, regarding the viability of a conditional sentence order, even where the primary sentencing objectives are deterrence anddenunciation. Still, as the court notes in Proulx, in some instances, the sentencing principles of deterrence and denunciation are sopronounced, a CSO would not be a fit sentence.

[ 69 ] I find the same applies here. In the circumstances of this case, where Mr. Lasante is moderately culpable, where significant environmental damage has been caused and where the very nature of the offence, the careless transport of a dangerous substance, calls out for a denunciatory sentence that sends a strong message of general deterrence, a conditional discharge is not, I find, a fit disposition. [ 70 ] Similar comments were made in the reasons of Judge Hyslop, at paragraph 15 of R. v. Perry , [2003] N.J.

No. 27 , and I find that they are apposite in this case, despite the factual differences between our two cases. [ 71 ] In the bulk of the cases before me, an offender such as Mr. Lasante has been sentenced to a fine and that, in my view, is the appropriate disposition in this case. The only other sentencing option, given my reasons so far, is a suspended sentence. I find that a suspended sentence would in no way meet the sentencing objectives in this case. [ 72 ] The fines imposed range from $1,000, either at the low end of culpability and/or damage, or in conjunction with a significant restitution order.

At the high end, the fines range from $20,000 to $30,000 and more, exclusive of restitution orders. In every case, the court was satisfied the offender could pay if given enough time. [ 73 ] The maximum penalty of the EMA of one million dollars suggests a low or nominal fine would not be appropriate. A sentence for this offence can never suggest a fine is simply the cost of doing business. However, the principle of proportionality requires the fine be fair and just, based on the culpability of the offender, the gravity of the offence, and the offender's ability to pay. [ 74 ] Mr.

Lasante's culpability is not as high as the mid-range, but neither is it at the low end. The offence is significant. The impact on the environment and local residents is significant. There are few mitigating circumstances in this case. The aggravating circumstances include, as I have noted, the impact on the environment and local residents. Bearing in mind these factors, I find that an appropriate disposition in this case is a fine in an amount Mr. Lasante is, himself, capable of paying.

Not a fine he could pay with some ease, but a fine that all would know is of sufficient amount as to act as a general deterrent. [ 75 ] Mr. Lasante, I must ask you to stand. [ 76 ] Mr. Lasante, for the offence of depositing a deleterious substance, contrary to s. 6(4) of the Environmental Management Act , I hereby sentence you to a fine in the amount of $20,000. I will give you two years to pay. Pursuant to s. 127(1)(

e) of the EMA , I order that $10,000 of that fine be paid into the Habitat Conservation Trust Fund for inclusion into its trust property. [ 77 ] Pursuant to s. 24(2) of the Charter , I find any victim impact surcharge payable, pursuant to the Offence Act , be inapplicable. I make no order regarding the payment of such a surcharge in this case. [ 78 ] Those then are my reasons for sentence. (REASONS CONCLUDED)