Her Majesty the Queen - v. -, 2018 SKPC 25

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 025 Date: April 17, 2018 Information: 2086299 Location: Kindersley _____________________________________________________________________________ Between: Her Majesty the Queen - and - William Russell Boyd Appearing: Matthew Miazga, Q.C. For the Crown Robert Ard , Q.C. For the Accused SENTENCING DECISION R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused is charged on a four count Information that he: Count 1: did between April 1, 2017 and May 3, 2017 near Eston, Saskatchewan alter wildlife habitat and ecological lands, to wit: by

cultivating an area of native grassland on the SE 22-23-21 W3 in violation of section 7(1) of The Wildlife Habitat Protection Act and thereby committed an offence contrary to section 8(1)(

a) of The Wildlife Habitat Protection Act . Count 2: did between June 1, 2017 and July 31, 2017 near Eston, Saskatchewan alter or cause to be altered the configuration of the bed, bank or boundary of any river, stream, lake, creek, marsh or other watercourse or water body to wit, the South Saskatchewan River, in violation of section 38(4) (

a) of The Environmental Management and Protection Act, 2010 and thereby committed an offence contrary to section 84(2) of The Environmental Management and Protection Act, 2010 . Count 3: did between June 15, 2017 and July 15, 2017 near Eston, Saskatchewan remove, displace or add any sand, gravel or other material from, in or to the bed, bank or boundary of any river, stream, lake, creek, marsh or other watercourse or water body to wit, the South Saskatchewan River, in violation of section 38(4) (

b) of The Environmental Management and Protection Act, 2010 and thereby committed an offence contrary to section 84(2) of The Environmental Management and Protection Act, 2010 . Count 4: did between June 15, 2017 and July 15, 2017 near Eston, Saskatchewan remove vegetation from the bed, bank or boundary of any river, stream, lake, creek, marsh or other watercourse or water body to wit, the South Saskatchewan River, in violation of section 38(4) (

c) of The Environmental Management and Protection Act, 2010 and thereby committed an offence contrary to section 84(2) of The Environmental Management and Protection Act, 2010 . [ 2 ] Guilty pleas have been entered on counts 1 and 2 of the Information.

Counts 3 and 4 are to be stayed by the Crown at completion of sentencing. [ 3 ] As part of the sentence negotiations between Crown and Defence, a joint submission has been proffered on count 1 for a fine of $5,000.00 plus the applicable surcharge of 40%. [ 4 ] Additionally, remediation orders have been agreed to, executed and filed with the Court pursuant to s. 8.1 The Wildlife Habitation Protection Act [1] and s. 85 of The Environmental Management and Protection Act, 2010 [2] , respectively. The only remaining issue is the quantum of fine to be rendered on count 2.

The Crown’s position is that a significant fine is warranted in the range of $25,000.00 to $30,000.00 plus surcharge to adequately address specific and general deterrence. Defence counsel is of the view that a fine in the range of $5,000.00 plus surcharge is more appropriate [3] . [ 5 ] Numerous exhibits and case authorities were filed by counsel at the time of the sentence submissions to assist the Court. II BACKGROUND [ 6 ] Mr. Boyd is 61 years of age and has conducted a large farming operation with his family in the Eston area for many years. In addition, Mr.

Boyd has been involved in provincial politics having served as the Kindersley member of the Legislative Assembly (MLA) for the Saskatchewan Party from 1991 to 2002 and 2007 to 2017. Over the course of his political tenure Mr. Boyd has held various cabinet portfolios. [ 7 ] The charges before the Court arise from a proposed irrigation project involving NE 22-31- 21 W3 which sits adjacent to the South Saskatchewan River. The quarter is actually owned by a numbered corporation, the shares of which are held by Mr. Boyd’s son. Mr.

Boyd, however, has taken responsibility as the directing mind of the irrigation project. [ 8 ] The SE 22-23-21 W3 is Crown owned land containing native grasslands which are statutorily habitat protected. The essence of the charges against Mr. Boyd deal with the accidental cultivation of roughly six acres of the protected grasslands (count 1) and the construction of irrigation infrastructure into the South Saskatchewan River without obtaining the proper licencing permits required according to governing legislation (count 2).

[ 9 ] The infraction in count 1 arose from a survey error on Mr. Boyd’s part whereby he inadvertently cultivated a small portion of Crown land by dipping below what he believed was the south boundary line. At the time he was relying upon his tractor’s global positioning system (GPS) as well as a handheld surveyor’s wheel.

It was not until a proper survey was done subsequently that the error was discovered. [ 10 ] The second count is viewed by the Crown as far more serious as it involves alteration of river shoreline and riverbank and damaging ecologically sensitive grasslands and river habitat. [ 11 ] Work on the irrigation project came to the government’s attention when a recreational canoeist camping at nearby Eston Regional Park lodged a complaint. III CHRONOLOGY [ 12 ] In the latter part of April 2017, Mr. Boyd contacted Mr.

Jeff Hovdebo, Director of Licencing and Water Use, Water Security Agency, concerning the proposed project. Mr. Hovdebo followed up by email to Mr. Boyd on April 28, 2017 as follows: Good Morning Mr. Boyd In follow up to our discussion on Tuesday I’ve attached the regulatory information and forms I had mentioned. As I understand it you are interested in developing an irrigation pivot on the NE22-23-21 W3M sourcing water from the South Saskatchewan River.

I understand this project was originally proposed as a component of a larger development on several parcels of adjacent Crown agricultural land using a central intake point as shown on attached plan. While work on securing access to the required Crown land is ongoing you would like to proceed with the development of the NE 22 (deeded land) by use of a dedicated intake. As outlined in the attached fact sheet for our surface water approval process, WSA will require the following: 1. Application. A completed application form, including all applicable sections as outlined in the enclosed instruction sheet.

The completed application along with the requisite fees should be returned to this office. 2. Plans. A detailed plan is required and must include the location of the intake works, supply pump(s), mainlines, pivot, and a depiction of area, including the total number of hectares, to be irrigated. Plans are typically prepared by the Ministry of Agriculture and you are advised to contact Mr. Randy Holmlund at 306.867.5510.

In the interest of advancing your application I would suggest you may submit a copy of the attached plan noting the proposed changes as an interim measure to assist our reviewers until an amended plan is available from MOA. 3. Irrigation Certificate. A copy of the Irrigation Certificate (soil/water evaluation) from the Ministry of Agriculture is required for all irrigation projects exceeding 12,300 cubic metres of annual water use (10 acres). If you have not previously had the proposed soils certified for irrigation you are again advised to contact Mr. Randy Holmlund. 4. Land Control.

Should any of the proposed works cross or otherwise affect lands which you do not own (e.g., road allowance, neighboring property, utility right of way) we will require proof of an adequate legal interest in those affected lands (e.g., easement agreement). This information can be submitted to Mr. Brian Hauck in our Moose Jaw office at the address shown in my signature below. Upon receipt we will review the application and may be in contact with you regarding any further information requirements we have.

You should also note that, depending upon the nature of your proposed water intake and pipeline alignment, an Aquatic Habitat Protection Permit may be required for any alterations to the bed, bank or boundary of a waterbody that results from your project . Upon receipt, we will forward a copy of the plans referenced above to the WSA’s Aquatic Habitat Protection Program for review. (Emphasis added) I trust the foregoing will address the information you require; however, please feel free to contact either Mr. Hauck (306.694.3103 or Brian.H auck@wsask.ca ) or myself if you have any further questions.

Regards, [4] [ 13 ] Accordingly, Mr. Boyd was put on notice at this point that two permits would be potentially required, one for diversion of surface water and the other relating to habitat protection, depending upon the nature of the proposed water intake structure involving any “alterations to the bed, bank or boundary of a water body that results from your project.” [ 14 ] Additionally, the Water Security Agent (WSA) forwarded two four page fact sheets outlining the “surface water approval process” and “instructions to complete application for water rights licence and approval to construct and operate works”.

It is notable on the first page of the first sheet the following appears in bolded block capital letters: DO NOT BEGIN THE CONSTRUCTION OF A WATER DEVELOPMENT PROJECT BEFORE RECEIVING AN APPROVAL TO CONSTRUCT [ 15 ] It appears, however, that Mr. Boyd unilaterally proceeded with construction and that the work did not accord with his application documentation, as evidenced in correspondence of May 25, 2017 from WSA: Dear Mr.

Boyd: Re: Surface Water Irrigation Project - NE 22-23-21 W3M This letter will acknowledge receipt of your application, plan and fee for a Water Rights Licence and Approval to Construct and Operate Works under The Water Security Agency Act . Enclosed is your receipt for $300.00. Water Security Agency (WSA) is prepared to issue an Approval to Construct Works and a Water Rights Licence based on the plan prepared by the Ministry of Agriculture on May 11, 2017 and submitted in support of your application.

A copy of the submitted plan is attached; however, we require clarification of the following before we can proceed. The Ministry of Agriculture has advised WSA that an inspection of the site identified irrigation works consisting of a concrete pivot pad and

section of pipeline already installed. An irrigation pivot was also located on site but not yet installed. The pad and pipeline are shown on the attached inspection plan dated May 3, 2017. The plan also identifies potential lands under irrigation, based on the size of pivot observed, and a potential pump site and intake location, based on the alignment of the existing pipeline . The works identified as existing appear inconsistent with those shown on the plan submitted in support of your application to WSA.

Development of the irrigation project as shown on the inspection plan would result in works affecting lands owned by Her Majesty the Queen (Saskatchewan) and designated pursuant to The Wildlife Protection Act (WHPA). WSA understands that these WHPA designated lands are not to be developed for irrigation . Due to conflict between the two sets of plans, WSA is requesting confirmation as to which project configuration you intend to proceed with. WSA also requires an understanding of whether the existing works are to be retained, reconfigured or removed form the site as part of the proposed project.

We request that you review the two attached plans and provide the requested clarification at your earliest convenience. Once we have received your response to the above, we will then be able to proceed with our review and issue an Approval to Construct Works (ATC) as appropriate. As you are likely aware, following the issuance of the ATC and subsequent construction of works you will be required to send WSA a copy of the “as built” plans prior to the issuance of the Water Rights Licence and Approval to Operate Works. Please refer to your project file number E2/17372 in all future correspondences.

If you require more information you can contact me at 306.694-3103 or by email at brian.hauck@wsask.ca. [emphasis added] Yours sincerely [5] , [ 16 ] It is also important to note that this application was in relation to the licence required to draw water from the South Saskatchewan River. No corresponding licence or permit had been applied for, nor was ever applied for, in relation to habitat protection which was required where alteration of the riverbank and shoreline was contemplated. [ 17 ] On June 6, 2017 a contingent from the Department of Agriculture met with Mr. Boyd at the project site.

It was at this point it was discovered that the portion of Crown protected land had been cultivated, as referenced in count 1 of the Information. Photographs were also taken of the work that had been completed evidencing a partially constructed irrigation pad and a large swath of land vegetation and riverbank cut-out leading down to the river.

Shown in the photographs is a very large “track-hoe” commercial type excavator being utilised for the construction. [ 18 ] Subsequent photographs show an on-site pit dug for sandfill and water discolouration at the intake spot evidencing water turbidity from the riverbed excavation. Further depicted is a large irrigation pipeline crossing the riverbank connected to a large mobile pump and continuing out the other side of the pump into the water which then attaches to a floating “Riverscreen” intake apparatus.

Also, the riverbank that had been churned up was not in any way contained, thereby increasing the risk of accelerated riverbank erosion particularly at times of future high spring run-off. [6] [ 19 ] On July 27, 2017 the WSA issued an “immediate environmental protection order” outlining various remediation steps to be taken forthwith as a result of the improper work done to that point. [ 20 ] Subsequent photograph evidence shows problems with both the required remediation measures of placing geotextile over affected riverbank areas as well as attempts at re-seeding.

This will no doubt require ongoing efforts to properly install and maintain. IV DETERMINATION [ 21 ] Both sides referred the Court to R v Terroco Industries Ltd . [7] as the principal guiding decision for environmental regulatory offence sentencing. [ 22 ] Terroco was a situation involving transport of hazardous chemicals where incorrect pickup documentation led to improper mixing of the chemicals at the delivery site. This resulted in the creation of chlorine gas which escaped through a valve causing serious respiratory injury to one of the drivers.

The Alberta Court of Appeal laid down a five step analysis in determining general sentencing principles for environmental offences:

a) Culpability;

b) Prior record;

c) Acceptance of responsibility/remorse;

d) Damage/Harm caused; and

e) Deterrence. [8]

a) Culpability [ 23 ] Ritter, J.A. identifies culpability as the dominant factor in sentencing for environmental offences to be assessed on a sliding scale depending on the degree of diligence exercised by the offender. Less diligence would thereby warrant a higher fine and greater diligence a lower sentence accordingly. Where then on the continuum do Mr. Boyd’s actions lie? [ 24 ] According to the May 25 correspondence from WSA it appeared that not only had the irrigation construction been started but that what was being done was not in compliance with his submitted application.

He was informed that clarity on this issue was required before licence approval could be given. Further, Crown land designated pursuant to The Wildlife Habitat Protection Act could be affected. [ 25 ] Nonetheless, Mr. Boyd proceeded on with the work throughout the spring and early summer resulting in an Environmental Protection Order being issued on July 25, 2017. Although his water rights licence was ultimately granted, this was not until August 9, 2017.

As for the Aquatic Habitat Protection permit he did not even apply for same despite being clearly advised the type of work he was undertaking would undoubtedly have required him to do so since shoreline riverbed and riverbank was being impacted. [ 26 ] Nor can it be said that this latter permit would simply be issued in due course. According to the Crown, the nature of the irrigation work being undertaken would never have been approved. [ 27 ] Further, Mr. Boyd was certainly not someone unsophisticated in the ways of government.

He had been the MLA for the area for many years, during several of which he held cabinet posts. As a former minister of the Crown, it is highly unlikely he could claim any difficulty understanding the concept generally nor specifically the clear requirements for licence permit approval contained in the material received from WSA. It was further referenced in the Crown’s submissions that according to government officials, land can escalate its value as much as ten times once irrigation is completed. This was not refuted by the defence.

Delay or possible outright refusal would be a strong motivator to proceed without permission. [ 28 ] In all of the circumstances, one would have to place Mr. Boyd’s efforts to comply and avoid the harm caused at the very low end of the diligence scale. His actions throughout, at a minimum, were highly reckless. His culpability for the offence is therefore high.

b) Prior record [ 29 ] The accused has no prior record for environmental offences which mitigates in his favour.

c) Acceptance of responsibility/remorse [ 30 ] Mr. Boyd has entered pleas of guilty to counts 1 and 2. Both counsel acknowledge that resolution was achieved after considerable dialogue on complex matters. Mr. Boyd has executed and filed long term remediation orders with the Court which will not

be an insignificant expense to him. Further, he has already completed some remedial work involving the placing of geotextile material over affected areas as well as attempting to re-seed in accordance with the habitat standard.

d) Damage/Harm caused [ 31 ] The Crown’s position is that the area in question is ecologically sensitive which will require years of restoration.

Effects will be felt in terms of expedited erosion of the riverbank, increased sedimentation in the river, potential impacts on fish and plant re-growth, and diminution of recreational enjoyment. [ 32 ] The defence points out that the impacted area is relatively small and that no foreign substances were introduced into the ecosystem such as chemicals, oils or other toxic pollutants. [ 33 ] Damage to fragile environmental areas has been cited in previous cases as an aggravating factor in sentencing.

In R v Kenaston Drilling (Arctic) Ltd . [9] the Court stated at para 13: I am not unaware of the general principles that should be considered in sentencing for the commission of a crime. It is my opinion that offences such as is provided for in the present legislation require perhaps a special approach.

I would be remiss as a Judge in this territory if I did not take notice of the need and purpose of the present legislation, to protect the "control and use of the surface of the land," a land which although tundra in nature and frozen over for many months each year is none the less a delicate land, easily damaged and perhaps when once damaged impossible to repair. This is without any mention of the possible use that our original inhabitants, in this case Eskimos, may still be making of it and how their way of life may be still dependent on its being preserved in its natural state.

It may very well be that in the present case no actual damage took place. But surely the test to apply in approaching the question of sentence should be less a concern of what the damage was but more a concern of what the damage might have been. [ 34 ] Also Stewart, T.C. J. in R v United Keno Hill Mines Ltd. [10] noted: Nature of Environment . A unique ecological area supporting rare flora and fauna, a high-use recreational watershed, or an essential wildlife habitat, are environments calling upon users to exercise special care.

Any injury to such areas must be more severely condemned than environmental damage to less sensitive areas. [ 35 ] As stated, Mr. Boyd has executed remediation orders to restore the affected areas. The efforts to comply with the emergency order issued July 25 have been less than satisfactory according to the Crown, as substantiated in the photographic evidence.

However, the harm occasioned will have long lasting implications even with perfect compliance and cannot be considered as insignificant. [ 36 ] Even if the environmental harm would not be readily apparent, at best this would be a neutral rather than a mitigating factor. [11]

e) Deterrence [ 37 ] Terroco identifies specific and general deterrence as key components of sentences imposed for environment offences. [12] [ 38 ] Specific deterrence has been addressed to a large extent by Mr. Boyd’s future commitments as embodied in the consent orders filed with the Court. In light of the fines to be imposed and the ongoing expenditures that will be required to remediate, it is unlikely that Mr. Boyd will venture down this path again. As well, to his credit, he has no previous infractions of this nature.

[39] General deterrence, however, is nonetheless critical. The South Saskatchewan River is a major waterway servicing largeportions of south and central Saskatchewan for irrigation and drinking water. However, the public must realize that incursions into anyand all lakes and rivers for commercial and personal use where shoreline and surrounding ecosystems are compromised is a highlysensitive venture requiring strict government oversight.

It is not only for today’s utility and enjoyment that protection is required butalso, for the generations that follow. [40] As pointed out by the Crown, the type of irrigation project in the present case was estimated to be in excess of $100,000.00 toimplement and would have the effect of greatly enhancing the value of those lands it serviced. The permitting and licencing process forirrigation projects is multi-layered and time consuming taking as much as 18 months according to the Crown. Certainly, as well, it is notautomatically granted as demonstrated herein where Mr.

Boyd would not have ultimately received approval for this specific project. Any fine, accordingly, must be of sufficient magnitude to deter like-minded individuals or corporations from believing they can expediteor circumvent the licencing process and simply pay later as a cost of doing business. [41] Several Saskatchewan cases were cited by counsel evidencing varying sentences imposed for breaches of environmentalstatutes. None are directly on point but they do reflect the seriousness the courts have treated such infractions:

a) R v RM of Britannia No 502, 2011 SKPC 79 , 2011 SKPC 079 (Sask PC). The RM pled guilty to two counts involvingconstruction of sewage works without obtaining necessary permits and was fined $55,000.00 in total plus $22,000.00 surcharges;

b) R v William Kuzub, Sr and William Kuzub, Jr, 2010 SKPC 78 , 2010 SKPC 078 (Sask PC). This case involved alterationof shoreline for purposes of commercial development where fines totalled $40,000.00 plus surcharges;

c) R v Schulzke, 2008 SKPC 149 (Sask PC). The fine in this case was $5,000.00 plus surcharge for widening a service road wheregravel and dirt sediment spilled into an adjacent creek which emptied into a nearby lake;

d) R v Churchbridge (Rural Municipality) [2005] SCJ No 746 (SKQB). In this case ditching was done by the RM to alleviateflooding problems without obtaining necessary permits. Fines were levied against the RM totalling $20,000.00 plus surcharge.

e) R v Riddell (unreported) Sask PC, a recent decision where trees were removed and shoreline altered to improve the lakefront lotof the accused where fines and surcharges totalled $22,000.00. V RESULT [42] By joint submission, the accused shall pay the sum of $5,000.00 plus $2,000.00 surcharge on count 1 of the Information. [43] In consideration of the balancing and weighing of the mitigating and aggravating factors as set out herein, the accused shallpay the sum of $20,000.00 plus surcharge of $8,000.00 on count 2 of the Information. [44] The global amount of fines and surcharges totalling $35,000.00 shall be paid within 90 days of this decision. ___________________________ R.D. Jackson, J

[1] SS 1983 - 84, c W-13.2 [2] SS 2010, c E-10.22 [3] Under The Environment Management and Protection Act, fines can in fact reach $1,000,000.00 for the most serious breaches. [4] Exhibit P-2, tab 10 [5] Exhibit P-2, Tab 11 [6] Exhibit P-1, Tabs 1 and 2 [7] 2005 ABCA 141, [Terroco] [8] Terroco at paras 35 - 64 [9] [1973] NWTJ, No 1 (QL); (NWT SC), 12 CCC (2d) 383 (NWTSC) [10] [1980] 1 YR 299 (QL) (Terr Ct) at para 12(a) [11] Terroco at para 47 [12] Terroco at para 53