R. v. Prince Rupert Port Authority, 2019 BCPC 298

Citation: R. v. Prince Rupert Port Authority 2019 BCPC 298 Date: 20191205 File No: 29798-C-2 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PRINCE RUPERT PORT AUTHORITY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L MROZINSKI Counsel for the Crown: G. McDonald, A. Koebel Counsel for the Attorney General of British Columbia: K. Chewka Counsel for the Defendant: M. Keen, M. Manhas Place of Hearing: Prince Rupert , B.C.

Dates of Hearing: June 10, 11, 18, 19, 20, 22,23,24, September 30, October 1 Date of Judgment: December 5, 2019 A Corrigendum was released by the Court on December 19, 2019. The corrections have been made to the text and the Corrigendum is appended to this document.

I. Introduction [ 1 ] In late June 2017, the defendant Prince Rupert Port Authority (“PRPA”) conducted an open burn on Ridley Island, located just across the harbour from Port Edward. By any estimate, the burn pile was massive. Many witnesses testified it was the largest they had seen. [ 2 ] On June 23, 2017, the first full day of the burn, several residents of Port Edward felt they were experiencing adverse effects from the fire. Reported symptoms ranged from a sore throat, difficulty breathing, and irritated eyes, to allegations of nausea and gagging.

More than one witness testified to detecting a chemical odour from the burn; several identified the odour as creosote. [ 3 ] The fire burned for some six days before PRPA extinguished it, largely though not exclusively at the behest of Provincial Conservation Officer Gareth Scrivner (“CO Scrivner”). As some residents of Port Edward suspected, the burn pile did contain creosote treated material. In a public statement released after the burn, PRPA admitted that waste materials from the final demolition of an old dock, the Odin Dock, were included in the burn pile.

Those materials, PRPA stated, included treated wood waste from pilings installed approximately 80 years earlier. It was material PRPA says that was mistakenly classified as organic waste suitable for burning. [ 4 ] In addition to the treated wood or pilings from the Odin Dock, the burn pile, or at least part of the burn pile, included other material such as concrete, re-bar, sheet metal, metal pipe, angle iron, plastic drainage pipe, other assorted plastics, signage and at least one small electrical box.

All of this is material, the Crown submits, that can never lawfully be incinerated in an open burn. [ 5 ] In the result, the Crown charges that PRPA committed three offences contrary to provincial environmental legislation. In Count 1, the Crown charges that PRPA unlawfully caused air contaminants to be introduced into the environment produced by the open burning of prohibited materials, contrary to s. 6(3) and s. 120(3) of the Environmental Management Act , [ SBC 2003] c. 53 (“ EMA ”).

Count 2 charges that PRPA burned prohibited material contrary to the province’s Open Burning Smoke Control Regulation 145/93 (“OBSCR”). Count 3 charges that PRPA allowed smoke to release from the open burn for more than 72 hours in what is known as a Category A area, also contrary to the OBSCR. [ 6 ] PRPA pleads not guilty to all counts. [ 7 ] PRPA is the federal authority responsible for the operation of the Port of Prince Rupert. The Port’s properties include Ridley Island, and Ridley Island is federal property for the purposes of s. 91(1A) of the Constitution Act, 1867 .

Because of its federal status, and federal ownership of Ridley Island, PRPA submits it is immune from the operation of provincial environmental legislation purporting to regulate what it burns, when it burns, or how long it burns port related material. While Crown immunity forms the bulk of PRPA’s defence in this trial, PRPA does advance a number of other defences. [ 8 ] With respect to Count 1, PRPA submits that the Crown has failed to prove beyond a reasonable doubt that the prohibited material burnt in amongst a vastly greater quantity of organic debris produced the adverse environmental effects alleged.

Count 1 is the only count in which PRPA challenges proof of the actus reas . PRPA acknowledges with respect to Count 2 that it did conduct an open burn of materials prohibited by the OBSCR, and with respect to Count 3 that it allowed a smoke release from the burn for more than 72 hours. [ 9 ] Even assuming the Crown proves Count 1 beyond a reasonable doubt, PRPA submits it must be acquitted. With respect to Counts 1 and 3, PRPA asserts a due diligence defence as well as a de minimis argument.

In defence of all three counts, PRPA relies on the doctrine of crown agency immunity as shielding it entirely from the application of provincial environmental legislation, including both the EMA and the OBSCR.

Alternatively, on all three counts, PRPA alleges it is the victim of officially induced error and as such must be acquitted. [ 10 ] In the further alternative, PRPA submits that the constitutional doctrine of interjurisdictional immunity precludes the application of any provincial legislation purporting to regulate its use of Ridley Island - the management and regulation of federal lands being a core and exclusive function of the federal government – full stop, as it is put in argument.

There is, to a lesser degree, a reliance on the exclusive federal power over navigation and shipping as precluding the application of provincial laws regulating the open burning of port related material on Ridley Island. Finally, relying on the doctrine of paramountcy, PRPA submits that the provincial environmental laws impugned herein create an operational conflict with its own approval of the open burn.

In any event, it is submitted, provincial laws purporting to regulate any port related activity on port lands frustrate the federal purpose of the Canada Marine Act , S.C. 1998, c. 10 , which is to enable port authorities to operate autonomously, nimbly and with a minimum of red tape. II. The Issues [ 11 ] As this

summary indicates, the issues in this trial are largely jurisdictional; that is to say whether provincial environmental legislation can in any way govern the open burn or effects of the open burn on or off of Ridley Island. [ 12 ] PRPA structured, or at least intended to structure its submissions at trial so that the question of its immunity as a crown agent from the operation of the EMA and the OBSCR was addressed first as a preliminary matter. PRPA regards this as a complete defence to all three counts, and one made out by the agreed statement of facts.

This, as it turns out, was based on a misunderstanding of the Crown’s own legal submissions which rely on various facts adduced at trial as supporting its argument that PRPA cannot rely on the doctrine of crown agency immunity.

To paraphrase the Crown, the submission is that by conducting an open burn of the prohibited materials described above, and in the manner in which it was conducted, PRPA acted well outside its lawful authority and as such cannot rely on crown agency immunity. [ 13 ] The manner in which the burn was conducted, the process by which it got underway and the content of the burn pile are all issues that must be addressed to determine the question of crown agency immunity. Many of these facts are also relevant to the question whether the Crown has proven the actus reas of Count 1.

While these issues are arguably interchangeable, I propose in these reasons to deal with Count 1 and the question of proof of the actus reas first, after which I will address the arguments concerning crown agency immunity.

[ 14 ] Following that, I intend to briefly deal with the remaining common law defences before finally addressing the division of powers issues, those being the questions of interjurisdictional immunity and paramountcy. III.

Count 1 – The Environmental Effect of the Open Burn [ 15 ] At issue in Count 1 is whether the Crown has proven beyond a reasonable doubt that PRPA introduced into the environment air contaminants produced by the burning of prohibited materials, contrary to s. 6(3) of the EMA . [ 16 ] There is no dispute that at approximately 8 p.m. on Thursday, June 22, 2017, a massive open burn pile was ignited on Ridley Island. The burn was not finally extinguished until June 27, 2017 after CO Scrivner visited the burn site to investigate complaints brought by two residents of Port Edward.

In the interim, being aware of at least one complaint regarding the open burn, and being satisfied it was nearly complete in any event, PRPA’s subcontractor, Storey Excavating, had ceased stoking the burn pile a day earlier. When CO Scrivner visited the site on June 27, the pile was still smouldering. Some material was aflame, but for the most part the fire appeared to be dying down.

It was, as CO Scrivner’s videos taken on the 27 th of June attest, a much smaller pile of material than it would have been on June 22, 2017. [ 17 ] How the pile was formed, what it contained, and how the burn was authorized are central issues in this case. The first two issues at least are relevant to the fundamental issue in Count 1, namely, the effect of the open burn on the environment.

Consequently, in this part of my reasons I will set out my findings with respect to all of the circumstances leading up to the ignition of the pile on June 22 before going on to consider the evidence regarding what the Crown alleges is the effect of the burn. [ 18 ] I have already noted earlier in these reasons that PRPA is the federal authority responsible for the development and management of the Port of Prince Rupert and in that capacity has responsibility for the management and development of Ridley Island.

PRPA introduced into evidence its 2016 Port Information Guide with an excerpt describing Ridley Island’s strategic significance for PRPA’s overall expansion plans for the Port of Prince Rupert. There is a more detailed description of Ridley Island in PRPA’s 2020 Land Use Management Plan. There, at

section 6.3.2, is a statement indicating that Ridley Island is intended to be preserved primarily for port oriented industrial operations; a plan supported by the City of Prince Rupert. Although Ridley Island is not within the District of Port Edward, there is a recognition at least in PRPA’s 2020 land use plan that “activities on Ridley Island have the potential to impact the enjoyment of Port Edward residents”. [ 19 ] Ridley Island is industrial land, intended for industrial port development. The Island is not generally open to the public.

Rail service provided by CN enters the Island and supports two export facilities, the coal terminal and the grain terminal. The Island also supports a container examination facility operated by the Canadian Border Services Agency. In or about 2015, PRPA completed the construction of its Road, Rail and Utility Corridor, to facilitate further terminal development. In or around 2016, PRPA cleared land on the Island for the construction of the Ray-Mont container stuffing facility.

These are some of the facilities on the Island; others are present and many more are planned or proposed. [ 20 ] Development of the Port of Prince Rupert generally is made difficult because of its particular topography. In the case of Ridley Island, the land is described as including rock outcrops with extensive muskeg areas. Development, and in particular the development of the Road, Rail and Utility Corridor as well as the Ray-Mont facility, involved the clearing and grubbing of land, the removal of trees, muddy undergrowth and muskeg. The waste from such clearing would have been substantial.

As an example, the development of the Ray-Mont facility involved the clearing and grubbing of some 16 acres of land. [ 21 ] To dispose of this waste material, PRPA operates a waste disposal site on Ridley Island. It is located at the southeast end of the Island in an area denoted in PRPA’s 2020 land use plan as the “permitted dredge disposal site”. The disposal site is intended for the disposal of organic material, including dredgeate.

PRPA submits, and I accept, that the waste disposal site is a significant piece of the Ridley Island infrastructure, and contributes to keeping down development costs in what is a competitive commercial environment. [ 22 ] The waste from the clearing for the Ray-Mont facility was deposited at this site, as was the waste from the clearing for the Road, Rail and Utility Corridor project. [ 23 ] Other of PRPA’s responsibilities include port and marine safety in the Port of Prince Rupert. To that end, PRPA dismantled and ultimately demolished the Odin Dock and the building thereon.

By 2015, the demolition of the actual dock was complete and the demolition materials, including treated wood from the dock’s pilings, was delivered to the Ridley Island waste disposal site. [ 24 ] PRPA’s practice is to burn its organic waste on site. To that end, it has developed a document entitled the Ridley Island Open Burning Protocol (the “Protocol”).

PRPA provides this Protocol to its contractor, the Coast Tsimshian Northern Contractor Alliance (“CTNCA”), with the expectation that it and/or any subcontractors will abide by the Protocol. [ 25 ] PRPA submits, and I accept, that the Protocol was created when two attempts to obtain open burning permits from the Provincial Ministry of Environment were rebuffed on jurisdictional grounds. In one particular instance, in 2012, Mark Love, then head of the Environmental Management

section of the Ministry of Environment wrote that “the province does not have jurisdiction to issue enforceable authorizations under the Environmental Management Act (EMA) on Federal Lands.” While it is not entirely necessary to address this fact here, I will note that in both instances, PRPA was put on notice that discharges originating of federal lands and migrating to provincial lands were governed by the EMA.

Additionally, there is nothing in the evidence suggesting provincial Ministry of Environment officials ever condoned the burning of prohibited materials such as treated wood, as an example. [ 26 ] In any event, PRPA had in place an open burning Protocol for Ridley Island. In the case of the June 2017 open burn, PRPA provided a copy to its contractor, the CTNCA, who in turn was expected to ensure its subcontractor, Storey Excavating, knew of and would comply with the Protocol. [ 27 ] The Protocol provides for an open burn window from March 1 to June 30, unless otherwise specified by the Port.

The so-called development proponent, being the party undertaking the burn, is required to notify the District of Port Edward and all operating Ridley Island tenants of an impending burn, complete with contact information for complaints. To the extent possible, the proponent is to

comply with the OBSCR. Burn piles are to be ignited only in the event of a venting index of good on the day of ignition, a venting index of good or fair the next day, and winds on the day of the ignition flowing predominantly out of the northeast. Once ignited, the proponent may add debris to the pile until local winds make smoke dispersion inadequate, or an inversion occurs trapping smoke near the surface.

In addition to this, the proponent is expected to keep daily records. [ 28 ] Under the Protocol, a proponent is authorized to conduct an open burn essentially as long as necessary so long as the burn occurs within the prescribed window, and wind and weather conditions remain relatively ideal for smoke dispersal. The Protocol provides no direction regarding the kinds of materials that may or may not be included in the open burn. [ 29 ] The proponent in this case was PRPA. The open burn however was conducted by Storey Excavating, a subcontractor for CTNCA.

James Storey, the owner/operator of Storey Excavating, was present at the burn site well before ignition, at the test burn, at full ignition, and then throughout the burn up to its extinguishment. Mr. Storey provided evidence with regard to the make-up of the burn pile, as did his employee, Mr. Darcy Daumont. CO Scrivner testified as to the state of the burn pile on Tuesday, June 27, 2017. [ 30 ] Darcy Daumont described clearing and grubbing 16 acres of Ridley Island scrub for the footprint of the Ray-Mont project. The clearing took some months.

It involved removing tree stumps from the mud, and other debris left after the removal of trees. Mr. Daumont deposited all of the material from this clearing project at the Ridley Island waste disposal site, a site he described as the mud dump. He testified to adding this material alongside an existing pile composed of “all sorts of stuff”. [ 31 ] Mr. Storey too noted a large pile of clearing grub and debris at the disposal site. He testified that they “stockpiled” the Ray- Mont material around the existing pile. Mr.

Storey knew, because he had been told by his contractor, CTNCA, that the existing pile included clear and grub from a previous site, beachcomb wood, and demolition waste. He saw some wood covered in mud, as well as big stumps and debris. He also saw manufactured lumber. Mr. Storey testified he did not see treated lumber: the wood appeared to him to be weathered and faded. [ 32 ] Several estimates of the size of the fire were given by witnesses in this trial. In addition, Mr. Daumont identified a number of photographs of the pile on the day of ignition which also demonstrate its size. The Crown questioned Mr.

Daumont’s identification however I am satisfied having listened to his testimony that the photographs identified by Mr. Daumont were indeed those of the open burn site at issue in this trial, both before and after ignition. [ 33 ] The burn pile is massive as the photograph entered as Exhibit 29 amply demonstrates. Mr. Daumont estimated the pile stood some 16 feet tall, was 120 feet wide and 60 feet long, before ignition. It was, Mr. Daumont testified, the biggest fire of the many, many fires he had worked on. [ 34 ] Both Mr. Storey and Mr. Daumont understood that the burn was approved by the CTNCA.

In turn, it is not in dispute in this case that CTNCA was instructed by PRPA that all of the materials in the burn pile I have just described were suitable for burning. It was on this basis that the burn commenced, with the contractor and certainly the sub-contractor believing that all of the materials in the burn pile had been approved for burning. [ 35 ] Travis Bernhardt, currently the director of planning and project manager at PRPA, was employed as the manager of project engineering by PRPA in June, 2017. In that capacity, Mr. Bernhardt was responsible for administering the contract for the burn with CTNCA.

In his administrative capacity, Mr. Bernhardt made an application to PRPA’s executive to burn the wood waste generated from the clearing of land for the Ray-Mont project. His office was instructed to add to the burn the materials that were presently at the disposal site and earmarked for incineration, which included the Odin Dock materials. Mr. Bernhardt carried out those instructions. [ 36 ] Mr. Bernhardt did observe the burn piles before the June 22 burn.

He testified that the vast amount of the material in this existing debris pile would have consisted of clearing debris from the Road, Rail and Utility Corridor project. In addition, he testified, there was some “weathered material from the dock demolition that probably would have been in the order of about 25 percent of the material that was there.” [ 37 ] The Crown characterizes this testimony as an admission by PRPA that 25 percent of the entire burn pile was made up of the Odin dock material. I find, when Mr.

Bernhardt’s testimony immediately preceding this is considered, that he was describing the contents of the existing pile, and that the Odin dock materials made up somewhere in the order of 25 percent of that pile. [ 38 ] I have no evidence of the dimensions of the wood waste pile created by Storey Excavating from the Ray-Mont project relative to the existing pile composed of some of the debris from the Road, Rail and Utility Corridor project and the Odin dock. I do accept that it took Mr.

Storey some months to build the Ray-Mont pile up, as well as the evidence that it came from the clearing of at least 12 acres of land, as was the testimony of Mr. Keller, if not the 16 acres of land that Mr. Daumont testified to clearing. What I can discern from all of this evidence is that the Odin Dock materials would not have formed a significant component of the entire open burn pile. [ 39 ] Mr. Bernhardt did not, as I have noted, approve the burning of the Odin Dock materials.

On the evidence in this trial, that decision I find was made or at least ultimately approved of by Lorne Keller, now the Vice President of Infrastructure and Engineering at PRPA. [ 40 ] Mr. Keller described his rationale for the approval with a brief history of the Odin dock as follows. The Odin dock was built in the 1930s and on it stood the Odin Seafood building. Odin Seafood operated as a cannery for decades, a fact which had some implication for Mr. Keller’s decision. [ 41 ] In 2005, PRPA commissioned an engineering report regarding the condition of the Odin Dock.

The report concluded the dock was in poor condition and was unsafe. A number of piles were said to be unsafe due to marine borer activity in the intertidal zone. Photographs appended to the report show pilings that are hollow and failed. [ 42 ] In or around 2011, Mr. Keller became involved in the first stage of the demolition of the Odin dock, that being the removal for destruction of the Odin Seafood building. Those materials were removed to Osbourne Island and disposed of by open burn. PRPA

entered into evidence various approvals for the open burning of this material: none authorized the burning of treated wood, or other of the prohibited material at issue in this trial. [ 43 ] The second stage of the Odin Dock demolition involved the removal of the dock and pilings which were, at the behest of PRPA, transported to the Ridley Island organic disposal site. Mr. Keller testified he viewed this material as suitable for open burning, even while knowing the pilings would at one time have been treated with creosote, for several reasons. First, his own observation of the deteriorated quality of the pilings.

Their condition led him to believe the creosote had been leached out. This was reinforced by his knowledge that among other things, for decades the Odin Seafood cannery would have constantly flushed water through the decking down over the pilings, also contributing to the leaching of the creosote. Finally, Mr. Keller had attempted to gain some offset credits from the Department of Fisheries and Oceans for the removal of the Odin Dock.

He testified that DFO denied that application; he was left to understand DFO felt the pilings posed no environmental threat being effectively devoid of creosote by 2011. [ 44 ] For these reasons, Mr. Keller had the demolition waste from the Odin Dock removed to Ridley Island and earmarked for burning. PRPA gave no consideration to any possible environmental effects of the burn; it had determined it was not burning treated wood. Moreover, as Mr. Keller testified, PRPA’s policy is not to burn treated wood; rather this material is disposed of off-site in a licensed facility. [ 45 ] Mr.

Keller did acknowledge the burn pile included not only treated wood, namely the pilings, but also concrete and re-bar. He was unconcerned about the environmental effects of those in an open burn since neither product could incinerate in a wood fire. Still, the pile included other prohibited materials such as plastic pipe, and assorted plastics. [ 46 ] The approval for the burn having been communicated to Storey Excavating, the burn was duly ignited at around 8 p.m. on Thursday, June 22, 2017. Photographs of the burn on the first evening show the smoke rising upwards, an indication of good venting.

In some of the photographs the smoke appears dark grey, in others it takes on a blacker hue. Mr. Daumont, who watched over the burn that first evening, and every other evening thereafter, viewed the ventilation conditions as good, acknowledging also that the smoke coming from the burn was black from time to time. [ 47 ] Mr. Daumont’s principle role at the fire was to feed it from time to time. He described stoking the fire consistently as the coals burnt and settled. The stoking consisted of pulling wood from the unburnt portion of the pile and moving it closer to the flames as one might with a campfire. Mr.

Daumont’s recollection was that he started to move the materials from existing pile containing the Odin Dock materials on Sunday, June 25, 2017. It is the case, I accept, that up until Monday, June 26, Mr. Daumont was working at night and admittedly unable to clearly see the contents of the pile. For example, he agreed he was unable to see the concrete and re-bar that he clearly placed in the burning pile. Still, Mr. Daumont’s recollection is corroborated by Mr.

Storey’s recollection that the burn started with the Ray-Mont pile, the bulk of which was burned when the contents of the existing pile was added to the burn. [ 48 ] On Friday, June 23, 2017, several residents in and around Port Edward felt affected by the burn. Four residents testified in this hearing, as did one of the employees of the nearby North Pacific Cannery Historic site, regarding their observations of the fire and in some cases, its effects. The testimony is broad ranging and, in important respects, inconsistent. [ 49 ] Ms. Carrie Thorpe is a resident of Port Edward.

Her home is almost directly across the harbour from the Ridley Island waste site. Ms. Thorpe testified to witnessing thick, black smoke coming from the burn. It was, she recalled, travelling straight up and blowing away from Port Edward. As with several of the witnesses who testified, Ms. Thorpe had no notice of the burn, though she ought to have. She called the fire department and was advised it was a controlled burn. Later, when Ms.

Thorpe began to experience symptoms such as a headache and sore throat, as well as a lingering chemical taste in her mouth, she called her MLA and obtained CO Scrivner’s contact number whereupon she complained about a sore throat she believed was caused by the fire. [ 50 ] Ms. Thorpe recalled the smoke emanating from the fire was consistently black until Tuesday, June 27, 2017 when it turned grey in colour. The chemical taste too, was present in her mouth from Friday, June 23, through to the following Tuesday or Wednesday. [ 51 ] On Friday, June 23, 2017, Ms.

Alice Kruta, whose residence is slightly outside of Port Edward, and south of the Ridley Island waste site, witnessed what she says was billowing black smoke everywhere. She testified that as she had no internet access or other communication devices, she drove into Port Edward where she said people were gagging. Ms. Kruta described the fire as a huge, massive, massive fire with the smell of creosote everywhere. She testified the fire burned her throat.

She was worried also about her llamas, though she testified that “they did not seem to be impacted but how would you know.” [ 52 ] Kevin Graham lives in Port Edward and was resident there throughout the June 2017 open burn. He testified that the smoke was sometimes black and other times grey. The smell was strong enough to cause him to close his windows. He added that when he was exercising, it was hard to catch his breath because of the heavy smoke in the air. [ 53 ] Ms. Kerrie Kennedy also lives in Port Edward and was resident there as well throughout the burn period. When Ms.

Kennedy noticed black smoke, she called the District of Port Edward and then her MLA and ultimately obtained CO Scrivner’s contact number. She reported that her eyes and throat were irritated and she was coughing. Her asthma puffer resolved her symptoms quickly. Ms. Kennedy witnessed that the smoke was at times black and at other times grey. [ 54 ] Like Ms. Thorpe, Ms. Kennedy described detecting a chemical smell from the fire; she described it as smelling like fibreglass, or burning plastic. Ms. Kennedy testified that she “didn’t think it was cool having a big, open burn like that.” As with Ms. Kruta, Ms.

Kennedy found the lack of notice of the burn from PRPA troublesome. [ 55 ] Steve Milum is not a resident of Port Edward but he was working in the area during the burn as the conservation manager of the North Pacific Cannery National Historic Site. Mr. Milum recalled seeing dark smoke. To him it smelt familiar to creosote. Within a few days of noticing the fire, Mr. Milum called PRPA to ask if it would take some of the Cannery’s creosote tainted waste. It was, he testified, in aid of saving the Cannery a bit of money as the waste was otherwise costly to dispose of.

He agreed on cross examination he would not have made such a request if he thought the burning would adversely affect anyone.

[ 56 ] By Tuesday, June 27, 2017, CO Scrivner had spoken to both Ms. Thorpe and Ms. Kennedy on several occasions regarding their complaints about the burn. Strangely, considering some of the evidence of the billowing black smoke, CO Scrivner testified he went to Ridley Island and asked if they were burning materials. He was told no, but drove into the grounds in any event and once at the waste disposal site, found the fire.

CO Scrivner described two separate piles; one clearly consisting of wood waste, the other containing prohibited materials as well as wood waste. [ 57 ] Even though the burn was in its sixth day, CO Scrivner described the burn pile as the largest single burn he had seen. He took video footage, entered into evidence in this trial as Exhibit 14, documenting each burn pile and his observations, including that the smell of creosote was overpowering. The video footage confirms that each of the two piles noted by CO Scrivner contain demolition related waste such as milled lumber, rebar, metal and concrete.

The piles also contain muskeg, roots and stumps, some of which remained unburnt at that time. [ 58 ] The Crown submits the video footage proves that the demolition waste was not isolated to one end of the burn and not ignited until Saturday night, adding that if that were true, there would not be demolition waste in both burn piles. The Crown also submits as I have noted earlier that the demolition waste made up 25 percent of the burn pile, which I have found not to be the case. Nevertheless, CO Scrivner’s video footage may indicate the demolition waste was not confined to the existing pile. Alternatively, Mr.

Daumont’s evidence that he moved material around the pile as other material burnt and settled, also explains the scattering of that same material. [ 59 ] On the whole of the evidence, including that of Mr. Keller, Mr. Storey and Mr. Daumont, I am convinced that the material from the Odin Dock was present at the disposal site when Mr. Daumont deposited the waste materials from the Ray-Mont clearing. Certainly that would have included the treated pilings and other manufactured lumber. It may well have included the rebar and concrete.

Whether the Odin Dock demolition materials also included other items such as the plastic piping, sheet metal, assorted plastics, angle iron and so forth I cannot know. But I do accept Mr. Daumont’s evidence concerning the existing pile and I find no basis to conclude he is lying or mistaken on that point. At least with respect to the treated wood, I accept Mr. Daumont’s evidence that it was piled separately from the Ray-Mont pile and that as he and Mr.

Storey testified, the burn began with that pile, moving onto the existing pile in the days following. [ 60 ] CO Scrivner gave evidence that the odour of creosote was strong as he moved among the burning piles. Mr. Daumont, who was at the site no less than 12 hours each night of the burn, and more on the last two days, testified, albeit somewhat reluctantly, that he too could smell creosote coming from the burn pile. He denied smelling it as strongly as CO Scrivner described, but nonetheless did smell burning creosote.

Other PRPA witnesses denied smelling anything other than the smell of burning wood, or a campfire. Mr. Storey was at the burn site with CO Scrivner and denied smelling what the officer smelt. Mr. Storey smelt smoke and burning muskeg; he recalled advising CO Scrivner that that was what the officer was smelling. [ 61 ] I have no doubt that CO Scrivner was detecting the odour of creosote as he walked in and around the burn piles on June 27, 2017. I have no doubt as well that the residents and/or persons present in Port Edward during the burn also smelt the odour of creosote coming from the burn.

They would also, in addition, have been smelling the odour of burning muskeg. The creosote smell, doubtless, came at least in part from the burning of the creosote treated pilings taken from the Odin Dock. [ 62 ] As for the smoke, it is clear on the evidence and I find that from time to time, thick black smoke rose from the open burn into the atmosphere.

On Tuesday, June 27, 2017, when CO Scrivner attended the site, the smoke was, as the video footage shows, staying low to the ground and rising just enough to blur the mountains in the background. [ 63 ] The smoke did not remain thick and black throughout the burn. From time to time, it was, I find grey and/or white in colour. Even then, the smoke had the effect of obscuring the sky, clouds and scenery in the background. [ 64 ] The odour from the burn, including from time to time, the odour of creosote, was present in Port Edward and the smoke from the burn was visible.

At times it would have appeared to persons in Port Edward as thick, black smoke. [ 65 ] It remains to be determined from this evidence and these findings whether the Crown has proven beyond a reasonable doubt that PRPA introduced air contaminants into the environment produced by the burning of prohibited materials contrary to s. 6(3) of the EMA. [ 66 ] Section 6(3) of the EMA provides that subject to ss. (5) a person must not introduce or cause or allow to be introduced into the environment, waste produced by a prescribed activity.

Subsection (5) of the EMA includes a number of instances where notwithstanding subsection (3) a person may, for example, discharge an air contaminant into the environment under a license or permit. [ 67 ] Prescribed activities for the purpose of s. 6(3) of the EMA are set out in the EMA Waste Discharge Regulation , B.C. Reg. 320/2004. Pursuant to s. 2(2) the prescribed activities are listed in Table at Schedules 1 and

Section 6.1 of the Table at

Schedule 1 provides that the burning or incineration of Prohibited material is a prescribed activity, as is the burning of waste or the burning or incineration of wood residue. [ 68 ] Prohibited material is defined in the Waste Discharge Regulation ,

Schedule 1, as including construction waste, other than lumber that has not been treated with wood preservatives or other chemicals and is not coated with paint, varnish, oil or other finishing material, demolition waste, electrical wire, plastics, and treated or painted wood products. [ 69 ] Prohibited waste is also defined in the OBSCR .

Section 3.1 of the OBSCR provides that a person must not burn, with debris that is open burned, prohibited material set out in

Schedule A. Under

Schedule A, material that must not be included with debris that is open burned includes: plastics, demolition waste, and treated lumber. In British Columbia, as the Crown submits, no person can obtain a permit to open burn alongside other debris, the prohibited materials listed in

Schedule 1 of the OBSCR. [ 70 ] Finally, waste is defined in s. 1 of the EMA as including air contaminants and air contaminant is defined in s. 1 as follows: "air contaminant" means a substance that is introduced into the air and that (

a) injures or is capable of injuring the health or safety of a person,

(

b) injures or is capable of injuring property or any life form, (

c) interferes with or is capable of interfering with visibility, (

d) interferes with or is capable of interfering with the normal conduct of business, (

e) causes or is capable of causing material physical discomfort to a person, or (

f) damages or is capable of damaging the environment [71] At trial, the Crown effectively particularized its charge on Count 1 asserting that PRPA introduced a substance into the air thatinterfered with or is capable of interfering with visibility, or causes is or capable of causing material discomfort. [72] The issues to be determined therefore are this: first, whether the Crown has proven beyond a reasonable doubt that PRPAallowed a substance to be introduced into the environment that caused material discomfort and was produced by the burning ofprohibited material. [73] In my view, there is no doubt that PRPA burned prohibited material.

This includes treated wood, plastics, and demolition waste.The burning of this material alongside a massive debris pile composed, I accept, of organic waste, caused smoke to travel in the air. Thesmoke was visible and detectable from nearby Port Edward. [74] Some residents, such as Ms. Thorpe, Ms. Kennedy and Mr. Graham described being affected by the smoke. Individually, theydescribed either a headache and sore throat, or irritation of the eyes and throat and coughing, or difficulty breathing while exercising, anda need to close windows. Ms. Thorpe and Ms. Kennedy detected a chemical odour; Mr.

Graham gave no such evidence. Mr. Milumdetected an odour of creosote and, to paraphrase counsel for the PRPA, must have found it unobjectionable. [75] With the possible exception of the chemical taste that lingered in Ms. Thorpe’s mouth from Friday June 23 to aroundWednesday, June 28, 2017, all of these symptoms are as consistent with the burning of organic materials, particularly given the size ofthe burn pile, as they are or may be with the burning of prohibited materials. [76] Ms. Thorpe recalled black smoke present throughout the burn, at least until the Tuesday, and the chemical taste throughout. Ifind Ms.

Thorpe cannot have recalled the smoke conditions correctly; the evidence overwhelmingly establishes that the colour of thesmoke, if not its thickness changed throughout the time of the burn. Moreover, I accept the evidence of Mr. Daumont and Mr. Storey thatmaterial in the existing pile, including the Odin Dock material, was not initially burnt. Whether material from this pile was placed in thelarge burning pile on Saturday or Sunday, it is clear to me on the evidence that it was not burning on Friday, June 23, 2015. WhateverMs.

Thorpe was discerning by way of a chemical taste on Friday and even Saturday, it is highly unlikely to have been related to asubstance caused by the burning of the Odin Dock materials. [77] Mr. Storey testified it was his view the odour CO Scrivner was detecting at the burn site was the smell of burning muskeg. Ifind, as I have noted, that CO Scrivner was indeed smelling creosote. If nothing else, one video shows CO Scrivner holding a piece ofwhat is unmistakeably creosote stained wood to his nose and stating for the video that it bears a strong odour of creosote.

Still, Mr.Storey’s evidence provides some basis for the chemical smell that was detected by Ms. Thorpe and Ms. Kennedy and in Ms. Thorpe’scase at a time when I am convinced the Odin Dock materials had yet to be lit. [78] Ms. Alice Kruta is, I find, an outlier as far as the evidence of the effect of the burn is concerned. Other residents of Port Edwardtestified to a sore throat, or difficulty breathing while exercising. Ms. Kruta testified that black smoke was billowing everywhere andpeople in Port Edward were gagging.

She testified to a burning in her throat though she declined to seek medical attention as she was “asmoker”. I do not doubt Ms. Kruta was alarmed by the fire; like many Port Edward residents, she felt aggrieved by the lack of notice.While I can accept that Ms. Kruta may have felt something from the fire and smoke; I am however not prepared to accept her evidenceon its face. In my view, it suffers from exaggeration. [79] CO Scrivner also testified to experiencing watery eyes while investigating the burn site.

I bear that evidence in mind as well as Iconsider the test for material discomfort. [80] A test for material discomfort is conveniently set out in R. v. Money’s Mushrooms, [1997] B.C.J. No. 3211. There, the questionfor the court was whether odours emanating from the defendant’s mushroom farm caused material discomfort to neighbouring residents.As the court held at para 13, the presence of a substance in the air can be established by odour.

However, as the court added: Whether the substance caused or was capable of causing a material physiological consequence or substantially altered or impaired theusefulness of the Air is in my judgment to be determined objectively.

To be considered in an objective analysis are the number ofpersons affected, the neighbourhood, the degree of the physiological effect, the length of time over which the substance was present, thequantity, the consistency of the characteristics of the odour, the methodology used to record the odour, and the recognition of any bias inthe collection of data. [81] The court wrote further at para 15 that: This is a strict liability offence. The burden on the G.V.R.D. is to prove the actus reus beyond a reasonable doubt.

The elements of thisoffence are that Money's discharged or caused to be discharged into the Air, an air contaminant, during the time alleged in such quantityso as to cause pollution. The substance does not have to be identified but the G.V.R.D. must establish beyond a reasonable doubt that thesubstance, or air contaminant, was present at the times alleged in such quantity to cause or have the capacity to cause a material physicaldiscomfort and impair or substantially alter the usefulness of the air.

Odour is not enough there must be a substance with an associatedmaterial discomfort or capacity to cause that discomfort. [82] Material discomfort was also considered in R. v. Campbell, 2006 BCPC 601 , 2006 BCPC 0601 at paras 26 through to

36. There, the question was whether the Crown had proven beyond a reasonable doubt that the open burning of debris caused material discomfort to some of his neighbours. Another question for the court was whether the Crown had proven beyond a reasonable doubt that the substance causing the material discomfort was produced by the burning of debris. I have set out the court’s reasons at paras 64 to 71 as follows: 64 The prohibition in s. 3(3) is against the introduction into the atmosphere of air contaminants produced by the open burning of vegetative matter on a parcel of land.

What, if anything is the Crown required to prove in this regard? 65 Again, this was not an issue that was addressed directly in submissions by either Mr. Campbell or Crown Counsel though it was touched in the course of submissions on the meaning of "debris". 66 In my view, the Crown is required to prove, beyond a reasonable doubt, that the smoke and odours from the burning of " debris ", as distinct from the burning of other things, caused material physical discomfort to Ms. McDowell and Mr. Lovell.

This does not mean that the Crown is limited to proving the s. 3(3) WMA offence in the case of fires that contain only vegetative matter.

Emissions from fires such as those in the case at bar, containing mixed fuels - some vegetative matter, some other material - will fall within the scope of the prohibition if the smoke and odours from the burning of the vegetative matter forms a large proportion of the overall emissions such that the court can conclude that the Crown has proven beyond a reasonable doubt that emissions produced by the burning of "debris" caused material physical discomfort to neighbours. 67 What evidence is there that the smoke and odours "produced by" the open burning of stumps, stems, branches, roots and other vegetative matter on the Campbell property, caused material physical discomfort to Ms.

McDowell and Mr. Lovell? 68 In my view, it is clear from the evidence of Ms. McDowell and Mr. Lovell that the emissions from the burning of the stumps, stems and other vegetative matter was the least of their concerns. For example, Ms. McDowell testified that she has enjoyed many campfires over the years and is very familiar with the appearance and odour of wood smoke. One of her principle objections to the June 5th, 2003 fire was that the smoke did not smell like wood smoke.

Rather, it had a "chemically" odour which made her concerned for the health of her young children: p. 10, l. 44 - p. 11, l. 14; p. 11, l. 44 - p. 12, l. 10. 69 Mr. Lovell's evidence was to similar effect. He described the June 5th fire as leaving a "putrid" smell in the air. It was not a "wood smell": p. 89, ll. 16 - 22. 70 As for the later fires on June 6th, June 25th, July 6th and August 14th, there is no evidence that "debris" (stumps, stems etc.) was burned. 71 In

summary on this point, it is my view, that the Crown has failed to prove beyond a reasonable doubt, that it was the smoke and odours " produced by " the open burning of "debris" (stumps, stems and other vegetative matter) which caused material physical discomfort to Mr. Campbell's neighbours. Quite the contrary. It seems abundantly clear that what was principally disturbing Ms. McDowall and Mr.

Lovell was the fact that they believed the odours coming off the fires were not produced by wood and other vegetative matter but rather by the burning of other materials such as drywall, lumber, paint and lube cans, metal and plastics. [ 83 ] Turning firstly to the question of material discomfort, I accept, as the court did in R. v. Campbell that something as simple as a person being required to close their windows to avoid smoke inhalation can constitute material discomfort. In this case, Ms. Thorpe spoke of a headache and sore throat that persisted. Ms. Kennedy spoke of an irritation of her eyes and throat. Mr.

Graham felt obligated to close his windows that June. All of these symptoms are in my view material discomforts. All are clearly associated with the burn. [ 84 ] I am, however, unable to conclude on the evidence before me, beyond a reasonable doubt, that the symptoms that I accept were experienced by the Port Edward residents testifying in this case, were caused by the burning of prohibited materials. This, in my view, is the inverse of the situation in R. v. Campbell that I have just described.

Here, given the massive size of the burn pile, and the evidence I accept regarding the make-up of the organic material relative to the prohibited material, I cannot be satisfied that the material discomfort experience by Port Edward residents was not simply caused by the massive fire. This is particularly so as I have find that residents experienced symptoms well before the Odin Dock materials were burnt. [ 85 ] The smoke from the burn was, as I have noted, at times thick and black. At other times it was grey or white. Often the smoke travelled straight up into the atmosphere; other times it shifted westward.

There is no credible evidence that the smoke ever travelled into Port Edward. [ 86 ] Still the Crown charges that the smoke from the fire constitutes an air contaminant because it interfered with or was capable of interfering with visibility. In this trial, there was some evidence of an interference with visibility. In CO Scrivner’s videos, smoke is seen travelling from the burn into the air. At this time, PRPA agrees the ventilation index was not as good as on previous days. The nature of the fire at this time was that it was burning out. The smoke appears thick and does obscure visibility.

I find, in addition, that the thick black smoke described as emanating from the burn from time to time is clearly a substance capable of interfering with visibility. [ 87 ] While I accept that CO Scrivner’s videos document the burning of treated wood, I am not satisfied beyond a reasonable doubt that the smoke emanating from this large burn, and interfering with or being capable of interfering with visibility, was produced by the burning of the prohibited material.

While CO Scrivner points to one piece of wood as evidence of burning treated wood, I am not satisfied beyond a reasonable doubt that the burning material was treated wood, or, alternatively that the smoke emanating from it met the definition of an air contaminant. [ 88 ] For all these reasons, I find the Crown has not proven the actus reas on Count 1. IV. Crown Immunity [ 89 ] Counts 2 and 3 charge that PRPA breached the provisions of the OBSCR by open burning prohibited material, and by burning beyond the 72 hour smoke window for Category A areas.

In defence of these charges, as well as Count 1, PRPA submits that as an agent

of the federal Crown, it is not bound by the provisions of the EMA and the OBSCR. [ 90 ] As PRPA puts it, the doctrine of Crown immunity means that legislation cannot bind Her Majesty the Queen, in this case in right of Canada, without her express consent. If there is no express consent, neither the Queen, nor Her agents can be bound and, it follows, prosecuted under such laws. Any question of the doctrine’s applicability in British Columbia is answered in Knight v. Imperial Tobacco Canada Limited, 2009 BCCA 541 , at para 29 . [ 91 ] That PRPA is an agent of the federal Crown is not in dispute.

This is provided for directly by s. 7(1) of the Canada Marine Act , S.C. 1998, c. 10 (“ CMA ”). Section 7(1) provides that a port authority (which includes the PRPA) is an agent of Her Majesty in right of Canada only for the purposes of engaging in the port activities referred to in paragraph 28(2)(

a) of the Act. [ 92 ]

Section 28 of the CMA sets out the capacity and powers of port authorities. For the purpose of these reasons I will set out section 28(1), (2) and (4) for convenient reference: 28

(1) A port authority is incorporated for the purpose of operating the port in respect of which its Letters Patent are issued and, for that purpose and for the purposes of this Act, has the powers of a natural person.

(2) The power of a port authority to operate a port is limited to the power to engage in (

a) port activities related to shipping, navigation, transportation of passengers and goods, handling of goods and storage of goods, to the extent that those activities are specified in the Letters Patent; and (

b) other activities that are deemed in the Letters Patent to be necessary to support port operations.

(4) A port authority shall not carry on any activity or exercise any power that it is restricted by its Letters Patent from carrying on or exercising, nor shall it carry on any activity or exercise any power in a manner contrary to its Letters Patent or this Act [ 93 ]

Article 7.1 of the PRPA’s Letters Patent set out the activities of the port referred to in paragraph 28(2) (

a) of the CMA ; the activities PRPA may carry out as agent of the Crown. [ 94 ] Subsection (

h) of

Article 7.1 provides that the PRPA may engage in activities such as the: (

h) construction, establishment, repair, maintenance, operation, removal or demolition of: (

i) disposal sites for carrying out the activities contemplated by

section 7.1(j)(ii); (ii) berths, wharfs, anchorages, breakwaters, waterways, fill sites, floats and pilings… [ 95 ] Subsection (

j) provides PRPA may engage in the following: (

j) the provision of services or carrying out of activities within the port or to or for users of the port in connection with their use of the port and its facilities as follows: (ii) waste and dredgate disposal (except that contaminated waste and dredgate disposal services can be provided only for users of the port in connection with their use of the port and its facilities: [ 96 ] PRPA submits that in carrying out the activities listed above, it is acting as an agent of her Majesty the Queen.

As neither the federal nor provincial Crowns have expressly made the EMA, and consequently the OBSCR applicable to Her Majesty in right of Canada, whatever PRPA does in regard to these activities cannot be governed by the EMA. [ 97 ] PRPA submits that the operation of its Ridley Island waste disposal site is authorized by

Article 7.1 of its Letters Patent. When and how it operates the site is beyond the authority of the EMA. PRPA is empowered, as an agent of the federal Crown, to establish and operate waste disposal sites, and therein dispose of waste and dredgate, including contaminated waste and dredgate, as it sees fit and, in any event, certainly unconstrained by the EMA.

This, PRPA submits, is a complete answer to all three charges respecting its open burn in June, 2017. [ 98 ] The Crown agrees that when PRPA is acting as agent for Her Majesty the Queen in right of Canada, as provided for by the provisions of the CMA , and PRPA’s Letters Patent, PRPA is immune from the reach of the EMA. The Crown does take issue with PRPA’s reliance on that part of subsection (j)(ii) enabling it to utilize contaminated waste disposal services. Though little ultimately turns on this, I accept PRPA’s submission that for the purposes of waste disposal under

Article 7.1(j)(ii) that PRPA is a user of the port as that term is intended and as it is defined in s. 5 of the CMA .

Still it is notable that even here PRPA must reach outside its Letters Patent into the CMA to find this authority. [ 99 ] More fundamentally, the Crown submits that in conducting the burn in the manner that it did, PRPA was acting well outside of its authority under the CMA and its Letters Patent. [ 100 ] The Crown relies on s. 28(4) of the CMA (referred to earlier) which provides that a port authority shall not carry on any activity or exercise any power that it is restricted by its Letters Patent from carrying on or exercising, nor shall it carry on any activity or exercise any power in a manner contrary to its Letters Patent or this Act .

The Crown submits that when PRPA conducted the burn, and included the treated wood from the Odin Dock, it breached the requirements of s. 20 of the Port Authority Operations Regulation (“PAOR”) SOR/2000-55 .

Section 20, which I will refer to shortly, applies whenever an activity prohibited under s. 5 of the PAOR is likely to occur. [ 101 ]

Section 5 of the PAOR provides as follows: 5 Unless otherwise authorized under these Regulations, no person shall, by act or omission, do anything or permit anything to be done in

a port that has or is likely to have any of the following results: (

a) to jeopardize the safety or health of persons in the port; (

b) to interfere with navigation; (

c) to obstruct or threaten any part of the port; (

d) to interfere with an authorized activity in the port; (

e) to divert the flow of a river or stream, cause or affect currents, cause silting or the accumulation of material or otherwise reduce thedepth of the waters of the port; (

f) to cause a nuisance; (

g) to cause damage to ships or other property; (

h) to adversely affect soil, air or water quality; or (

i) to adversely affect port operations or the property managed, held or occupied by the port authority. [102] The Crown submits PRPA would have known its June, 2017 open burn was likely to cause a nuisance, and/or that it was likelyto adversely affect soil, air or water quality. As such, PRPA was bound to comply with s. 20 which provides as follows: 20 If a port authority is the proponent of an activity that is set out in column 1 of the activity list and is likely to have any of the resultsprohibited under

section 5, it shall take appropriate measures designed to mitigate or prevent the result, if technically and economicallyfeasible, taking into account the responsibility of the port authority for the safety of persons and property in the port, the environmentalprotection of the port and the management of the marine infrastructure and services of the port in a commercial manner. [103] A breach of this provision, the Crown submits, constitutes a breach of s. 127(1) of the CMA which makes it an offence to breachregulations created under the Act. [104] With respect to its obligations under s. 20 of the PAOR, the Crown submits PRPA took no steps to try to mitigate or prevent anuisance or adverse effects on air quality when it authorized the June 2017 open burn as it was required to do by statute.

The burn wastherefore not authorized by statute. [105] The approach by Crown to the Crown immunity argument is not dissimilar to the approach taken by the court in R. v. CanadianBroadcasting Corp., (SCC), [1983] 1 S.C.R. 339. There, the CBC was charged with publishing an obscene moviecontrary to s. 159(1)(

a) of the Criminal Code. It relied on the doctrine of Crown immunity in defence. Specifically it argued that thepowers it exercised under its constituent legislation could only be exercised as an agent of Her Majesty. The SCC held that what it had todo in the case was to determine the character of the actions taken by the CBC in the course of the discharge of its Parliamentarymandate.

It held further at para 21, that there was no authorization by Parliament in CBC’s parent statute for its publication of the movie.It wrote further in this para that: There certainly can be no reason in law why the law enforcement agencies should not bring before the criminal court a corporation,however established, or any other person, where the conduct of that person, natural or legal, offends the Criminal Code and is notexpressly authorized by

an Act of Parliament. [my emphasis] [106] Leaving aside that it must yet be determined whether provincial law enforcement agencies can bring PRPA before the courtwhere its conduct is alleged to have violated the EMA, it is clear that if PRPA’s conduct is not expressly mandated in its constitutelegislation, including its Letters Patent, that conduct is not protected by the doctrine of crown immunity. The Crown submits that isprecisely the case, as PRPA did not comply with its obligations under s. 20 of the PAOR. [107] PRPA characterizes this as the Crown alleging it acted outside of its core purposes.

It denies any such allegation. [108] PRPA submits firstly that it is empowered by the PAOR to make decisions regarding the environment and to balance thoseconsiderations with technical and economic concerns. In doing so, in approving the open burn, PRPA was acting within the scope of thepurposes it was empowered to pursue. Secondly, and slightly more specifically, PRPA submits that in approving the burn, it did take thenecessary and appropriate steps as required by the PAOR to mitigate the effects of the open burn.

Thirdly, PRPA submits that so long asit is acting in accordance with its Letters Patent, it enjoys Crown immunity whether or not it has breached a provision of the CMA,including s. 20 of the PAOR. [109] In my view, PRPA’s first two points overlap almost entirely and I will address them together. [110] In authorizing the open burn generally, I accept that PRPA had in place and utilized its Open Burn Protocol. I accept also that incommunicating this authorization to CTNCA, Mr. Bernhardt advised and expected CTNCA and any of its subcontractors would abide bythe Protocol.

The Protocol provides, as I have noted earlier in these reasons, that to the extent possible, the proponent will comply withthe OBSCR. Ignition conditions are regulated in accordance with venting indexes that match the OBSCR. There are provisions for theaddition of debris to a burn pile subject to wind and weather conditions that protect the environment. These and other provisions in theOpen Burning Protocol, while not as extensive as the OBSCR, are certainly designed to mitigate either a nuisance or an adverse effect onair quality.

If what was at issue here was simply an open burn of purely organic material I would find that PRPA complied with s. 20 ofthe PAOR. [111] However, on the evidence as I have found it in this trial, PRPA cannot maintain that it took any appropriate measures designedto mitigate or prevent a nuisance or adverse effect on air quality arising out of the open burning of treated wood and other prohibited

materials found at the burn site by CO Scrivner. It cannot be that PRPA complied with its obligations under s. 20 of the PAOR tomitigate adverse effects on an open burn when it either had no idea, was indifferent to, or was entirely wrong about what it was burning. [112] As. Mr. Keller’s testimony evidences, PRPA proceeded on the assumption the pilings from the Odin Dock were free of creosote.Here, I do not find it necessary to castigate Mr. Keller for his decision to approve the burning of the Odin Dock material.

In hindsight Iexpect he regrets not taking some step to determine if his assumptions, based on common sense if nothing else, were correct. However,Mr. Keller’s assumptions were incorrect; PRPA did not in the circumstances put its mind to the mitigation or even elimination of thepotential effects of the open burning of treated wood. It would not have in any event; as Mr. Keller testified, PRPA would not dispose ofsuch material on Ridley Island by way of open burn. [113] A further difficulty with this submission of PRPA arises given that treated wood was not the only prohibited material found inthe burn pile.

Even accepting that concrete and steel re-bar may well have been left in the burn pile, knowing neither would burn in awood fire, the piles contained plastics, plastic pipe, demolition waste, and at least one electrical box. Whatever Mr. Keller’s views wereon the treated pilings from the dock, no one at PRPA appears to have considered the effect of open burning these materials. [114] For these reasons, I find PRPA did not comply with s. 20 of the PAOR.

It did breach the regulation contrary to s. 127(1) of theCMA. [115] PRPA’s final submission on this point is that a breach of s. 20 of the PAOR is of no moment in any event. PRPA submits itscrown agency status emanates from its Letters Patent; so long as it is acting within the scope of its Letters Patent, it retains its crownagency status whether or not it is in violation of the CMA.

In other words, in carrying out any power granted in its Letters Patent, PRPAwould at a minimum be immune from prosecution for breach of the CMA. [116] The clear wording of s. 28(4) of the CMA is, I find, inconsistent with this argument. Under subsection 28(4), Parliament hasrestricted the scope of crown agency for ports to the exercise of powers authorized and consistent with its Letters Patent and the Act.Parliament has not authorized ports, including PRPA, to breach the CMA even in their capacity as crown agents. [117] Alternatively,

Article 1.3 of PRPA’s Letters Patent provides that in the event of a conflict between the Letters Patent and the Act(the CMA) or Regulation, the Act or Regulations shall prevail. I find that a conflict exists between a provision of the Letters Patentallowing PRPA to dispose of waste, and a provision of the PAOR requiring PRPA to take certain steps if doing so would likely result in anuisance or adversely affect air quality.

PRPA is authorized to dispose of waste under its Letters Patent, but s. 20 of the PAOR providesthat if in so doing, PRPA is likely to cause a nuisance or adversely affect air quality, it must take certain steps. To comply with s. 20PRPA had to have put its mind to the potential adverse effects on air quality by the open burning of prohibited materials, includingtreated wood. It did not.

PRPA cannot rely on the general authority under its Letters Patent to dispose of waste while ignoring its specificobligation under the PAOR to mitigate or at least consider mitigating the environmental effect of that waste. [118] For all these reasons, I find that PRPA was not acting within the authority granted to it by Parliament as a crown agent when itconducted the open burn of prohibited materials.

PRPA cannot rely on Crown immunity as a defence to the charge in Count 2 that itconducted an open burn of prohibited materials contrary to the OBSCR. [119] Count 3 charges that PRPA also breached the provisions of the OBSCR by allowing for smoke to release over a periodexceeding 72 hours in a Category A area - that is to say, in Prince Rupert, even though the area most affected, Port Edward, is in aCategory B area. Smoke release in a Category B area might lawfully exceed 72 hours provided certain conditions are met.

In any event,in approving the burn, including the instruction to continue the burn until the fuel was gone, PRPA submits it was acting entirely withinits authority and in compliance with s. 20 of the PAOR and I agree. PRPA’s Ridley Island Burn Protocol is an example of the kind ofbalancing required by s. 20 of the PAOR. [120] The Protocol, and PRPA’s direction to burn as long as necessary is of course inconsistent with the 72 hour window prescribed bythe OBSCR. In this regard, however, PRPA was acting within the authority provided by Parliament, in its role as agent of the Crown.

Assuch, in respect of the length of burn, the provisions of the EMA and OBSCR do not apply to PRPA. For this reason, PRPA is acquittedon count 3 of the information. V. Common Law Defences [121] In addition to the defence of Crown immunity, PRPA advances several common law defences and finally in respect of all thecounts a jurisdictional argument based on exclusive federal jurisdiction over federal lands and navigation and shipping. I intend toaddress the common law defences first before moving on to consider the constitutional questions.

a) Officially Induced Error [122] In respect of all three counts, PRPA submits the charges should be stayed by this court on the grounds of officially inducederror. In brief, PRPA submits that it sought permits from provincial environment officials to conduct open burns on port property only tobe told the province had no jurisdiction. PRPA relies on R. v.

Jorgensen, (SCC), [1995] 4 SCR 55 at para 8, as authorityfor the proposition that in the instance where an individual believes his or her behaviour may be illegal, and consults an appropriateauthority and relies on that advice in a manner that appears objectively reasonable, the court should in fairness stay any subsequentcharges that arise from reliance on that advice. [123] The test for determining whether a defence of officially induced error has been made out is helpfully summarized in Lévis (Ville)c. Tétreault, 2006 SCC 12 at para 26.

In its written submissions, PRPA addresses each of the six factors necessary to make out thedefence. Its basic point is that having sought permission on three separate occasions from the province to burn waste, including in oneinstance, untreated bull rails, it was advised the province considered it either had no jurisdiction or its jurisdiction was questionable.PRPA submits it concluded from this that it would be unable to obtain provincial authorizations to conduct open burns, at least onfederal port lands.

[124] To a great extent, PRPA received correct advice. The Province does not have authority to generally regulate open burns onfederal land. More importantly, leaving aside Count 3, the charges in this case are not about open burns; they are about the open burningof prohibited material and the effect of that burning on provincial lands. To the extent PRPA was left with the impression it could not geta permit for the open burning of prohibited materials, it was right. No permit would be issued for the open burning of the prohibitedmaterials that are the subject of this litigation.

Moreover, there is no evidence provincial environmental officials left PRPA with anyimpression it could open burn treated wood waste or other prohibited materials. [125] With respect to count 3, there is no evidence to support the defence of officially induced error. While provincial environmentalofficials did either expressly deny or refuse to exercise provincial jurisdiction of this federal port land, there is nothing in the record tosuggest PRPA was left with the impression the effects of an open burn off Ridley Island for example, would not be subject to provincialenvironmental legislation.

In fact, the opposite is true. [126] For these reasons, I would not issue a stay of proceedings on any of the charges on the grounds of officially induced error.

b) Due Diligence [127] PRPA advances the further common law defence of due diligence with respect to counts 1 and 3. Although I have found that theCrown has failed to prove the actus reas of count 1, I will address this defence with respect to both these counts. [128] With respect to Count 1, I have found that the open burn caused some residents of Port Edward to experience materialdiscomfort, and that smoke emitting from the open burn was, at times, capable of interfering with visibility.

Still I cannot be satisfiedbeyond a reasonable doubt that either effect was produced by the burning of the prohibited material I accept was present in the burn pile.The actus reas of Count 1 turns on this. The actus reas of Count 3 turns on proof beyond a reasonable doubt that PRPA allowed a smokerelease that exceeded 72 hours. [129] The offences charged in all three counts herein are offences of strict liability. These are offences in which the Crown need onlyprove the actus reas beyond a reasonable doubt.

If that is done, it is open to PRPA to avoid liability by showing it took all reasonablecare to avoid the commission of the offence. In the famous passage of R. v. Sault Ste. Marie (City), (SCC), [1978] 2S.C.R. 1299, Justice Dickson as he then was wrote of what is now commonly known as the defence of due diligence: The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act oromission innocent, or if he took all reasonable steps to avoid the particular event. [130] In R. v. Emil K.

Fishing Corp, [2008] BCCA 490, the court wrote, at para 19, that “the defence of due diligence is available onlyif an accused can demonstrate that it has exercised due diligence to avoid the specific type of occurrence giving rise to the charge againstit.” [131] The particular event in Count 1 is the open burn of prohibited materials which produced a substance that caused materialdiscomfort or was capable of obscuring visibility.

If the actus reas of Count 1 were proven beyond a reasonable doubt, PRPA’s duediligence defence must address steps it took to avoid the open burn of the prohibited material. [132] To some degree, PRPA addresses this in its discussion of the process utilized by Mr. Keller to satisfy himself that all of thecreosote had leached out of the Odin Dock materials before approving them for open burning.

The other steps outlined, such ascompliance with or attempts to comply with the Protocol, carrying out the test burn, and monitoring the burn, have no bearing on thisdefence. [133] With respect to the standard of care, in City of Sault Ste. Marie, the Court defined the defence of due diligence in part as anabsence of negligence with respect to the specific event which constitutes the offence.

In relation to this issue the Court commentedvariously: In his work, Public Welfare Offences, at p.78, Professor Sayer suggests ... the defendant should not be denied the right of bringingforward affirmative evidence to prove that the violation was the result of no fault on his part. (pp.1313-1314) The doctrine (of due diligence) proceeds on the assumption that the defendant could have avoided the prima facie offence through theexercise of reasonable care and he is given the opportunity of establishing, if he can, that he did in fact exercise such care. (p.1314) [134] The question then is whether the Mr.

Keller’s efforts to ascertain the composition of the Odin Dock materials supports PRPA’sdefence that it could not have avoided committing the actus reas in Count 1 though it exercised all reasonable care. [135] At most, Mr. Keller considered the Odin Dock materials. There is no evidence anyone from PRPA put their mind to the otherprohibited materials in the open burn, which included plastic pipe and other assorted plastics. As for the considerations taken by Mr.Keller, again, I do not wish to be critical. There is, I find, an element of common sense to Mr. Keller’s approach.

His determination thatthe creosote was leached out of the pilings was not devoid of any basis. There are, for example, photographs of hollow pilings in situ.Witnesses who saw the Odin Dock materials at the Ridley Island waste disposal site described the materials as weathered looking. Stillthe potential adverse environmental effects of open burning treated wood are obvious and well known. [136] The level of care in this case must be informed at least in part by the potential danger or adverse environmental effects.

In thisregard, I am not satisfied the steps taken with respect to the burning of the treated materials from the Odin Dock met the standardrequired for the offence of due diligence.

If I am wrong about the actus reas on Count 1, I would not find PRPA has made out a defenceof due diligence on this count both with respect to the material impact of the smoke on Port Edward residents and the visibility impact aseach turns on the burning of prohibited materials. [137] On Count 3, PRPA submits that even though Ridley Island is in a Category A area that prohibits smoke release exceeding 72hours, it diligently managed smoke from the fire consistent with Category B obligations under the OBSCR. PRPA submits this meets the

test for due diligence particularly given any adverse environmental effects were felt by residents in a Category B area. The Crown submits PRPA did not comply with the Category B requirements. [ 138 ] With respect to the defence of due diligence in my view it is no answer to a charge of failure to comply with Category A requirements to say PRPA complied with Category B requirements, even if that were the case. [ 139 ] I find also, in the alternative, that I agree with the Crown that PRPA has not proven on balance that it did comply with Category B requirements.

Section 5 of

Schedule B of the OBSCR 145/93 provides that with respect to a Category B area, if after 96 hours, smoke is being released from more than 5% of the debris that was initially ignited, the piled debris must be broken apart, scattered or re-piled. The videos taken by CO Scrivner on June 27, coupled with the testimony of Mr. Daumont that on this day there was far less smoke coming from the burn than in previous days, strongly support the Crown’s submission that on the Sunday, clearly more than 5% of the burn pile was smoking. It should, in accordance with s. 5 of the OBSCR, been broken up.

Here, PRPA has adduced no evidence of any such breaking up of the pile. The only evidence is that of Mr. Daumont who testified he took material from around the larger pile or piles and added it to the

section that was burning as necessary. This falls far short of proof on balance that PRPA was complying with s. 5 of

Schedule B of the OBSCR. [ 140 ] For these reasons I find PRPA has not established a due diligence defence to Count 3.

c) The De Minimis defence [ 141 ] Finally, with regard to the common law defences, PRPA advances a de minimis argument. This argument relates largely to Count 1. Given my finding that the smoke from the open burn did cause material discomfort, I would not give effect to this argument. VI.

Summary of Findings [ 142 ] In

summary, I have found the Crown has not discharged its burden to prove the actus reas on Count 1 beyond a reasonable doubt. PRPA does not dispute the actus reas of Counts 2 and 3 but submits with respect to all three counts that it is immune from prosecution under the EMA by virtue of its status as a federal crown agent.

I have found that PRPA is not shielded by crown immunity with respect to Count 2 (the result would have been the same for Count 1 had the actus reas been proven) but was immune from prosecution for the purposes of Count 3. [ 143 ] I have declined to enter a stay of proceedings on all three counts on the grounds of mistake of law, or officially induced error. I find PRPA has not established a defence of due diligence on either Count 1 or Count 3. I have also dismissed PRPA’s de minimis argument. [ 144 ] For the reasons given, I acquit PRPA on Counts 1 and 3.

Count 2, the charge of open burning prohibited material, remains. As such, it is necessary to consider PRPA’s final arguments concerning the jurisdictional reach of provincial environmental laws. VII. Division of Powers [ 145 ] These submissions are concerned with the division of federal and provincial powers under ss. 91 and 92 of the Constitution Act, 1867 . As the date suggests, the division of powers constitutes an agreement struck at Confederation.

At para 22 of Canadian Western Bank , 2007 SCC 22 , the court described the division of powers, in part, as follows: …federalism was the legal response of the framers of the Constitution to the political and cultural realities that existed at Confederation. It thus represented a legal recognition of the diversity of the original members. The division of powers, one of the basic components of federalism, was designed to uphold this diversity within a single nation.

Broad powers were conferred on provincial legislatures, while at the same time Canada's unity was ensured by reserving to Parliament powers better exercised in relation to the country as a whole. Each head of power was assigned to the level of government best placed to exercise the power.

The fundamental objectives of federalism were, and still are, to reconcile unity with diversity, promote democratic participation by reserving meaningful powers to the local or regional level and to foster co-operation among governments and legislatures for the common good. [ 146 ] Since Confederation, courts have been called upon to interpret the limits or the scope of these various powers and, as the court observes at para 24 of Canadian Western Bank , have developed certain constitutional doctrines that act as guiding principles of Canadian federalism.

At issue in this case are two such doctrines: the doctrine of interjurisdictional immunity, and the doctrine of paramountcy. [ 147 ] As PRPA has established, when it engages in certain port related activities, including the management of port related waste, it acts as an agent of the federal Crown. It is empowered to do so through a combination of the CMA , and its Letters Patent. [ 148 ] The land comprising Ridley Island, where PRPA exercises some of its federal authority, is federal public land.

The federal government has exclusive power to make laws in relation to this property under s. 91 (1A) of the Constitution Act, 1867 . Additionally, the federal government has exclusive power under s. 91(10) of the Constitution Act, 1867 to legislate with respect to navigation and shipping. At the same time, the province has exclusive legislative jurisdiction over property and civil rights and matters of a merely local nature under ss. 92(13) and 92(16).

It is pursuant to these powers that the province has legislated the EMA and its regulations including the OBSCR, as well as the Waste Management Act . [ 149 ] PRPA submits that in this case there is an impermissible constitutional conflict between the operation of these provincial laws, and the exclusive federal legislative power over federal public

[…]