Her Majesty the Queen - v. -, 2014 SKPC 171

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 171 Date: October 9, 2014 Information: 24167768 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Chetal Enterprises Limited operating as One Hour Cleanitizing and Peter Evaschesen Appearing: Carol Carlson For the Crown Grant Carson For the Accused DECISION H. M. HARRADENCE , J INTRODUCTION [ 1 ] Peter Evaschesen has been involved in a dry cleaning business in Melfort since 1968.

The business known as One Hour Cleanitizing is operated by Chetal Enterprises Limited, a Saskatchewan corporation whose directors are Peter Evaschesen and his wife Bethel Evaschesen. [ 2 ] On November 5, 2012, Joel Anderson and Dave Bauman, Enforcement Officers with Environment Canada, attended at the

retail outlet of One Hour Cleanitizing in Melfort to conduct a random inspection of the business. It is evident that these two officers conducted a thorough and comprehensive inspection of the entire premises to ensure compliance with environmental regulations. A photo log (Exhibit P-3) was filed in these proceedings which contains 50 photos of the various areas of inspection within the business. A focus of the inspection was the use and storage of tetrachloroethylene, a chemical used in the dry cleaning process. This chemical is commonly referred to as PERC.

The inspection by these two officers alleged that PERC was being used and stored at this business in compliance with the environmental regulations with one exception. [ 3 ] The evidence indicates that in a separate building there was a 45 gallon drum that was located. This drum contained PERC. The evidence indicates that this drum had been delivered to the business within five days prior to the inspection.

Peter Evaschesen had been away moose hunting when the drum was delivered and the day of the inspection was his first day back to work. [ 4 ] Although there was some evidence that the drum containing PERC was lined, the Enforcement Officers concluded that the PERC was not stored properly as it did not have a secondary containment system.

As a result Peter Evaschesen and Chetal Enterprises Limited were charged with the following offence on August 19, 2013: On or about November 5, 2012 at Melfort, Saskatchewan, did unlawfully use tetrachloroethylene for dry cleaning while the dry cleaning machine was operated within a dry cleaning facility that was not equipped with a tetrachloroethylene-impermeable secondary containment system encompassing at least the entire surface under each container containing tetrachloroethylene, was water or residue contrary to paragraph 5 (f)(

i) of the Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations thereby committing an offence contrary to paragraph 272(1)(

h) of the Canadian Environmental Protection Act, 1999 . [ 5 ] It is not contested that the chemical contained in the drum was PERC. The dispute is whether the Crown has established that the Regulations strictly construed, are intended to make the conduct of the defendants an offence. The specific question is whether the Crown has established the actus reus of the offence beyond a reasonable doubt and if so, whether the defence has shown on a balance of probabilities that the defendants acted with due diligence.

THE REGULATIONS [ 6 ] The environmental regulations are extensive and carry with them significant fines. Counsel focused on the Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations SOR/2003-79 particularly the sections entitled Prohibitions including s. 5(

f) on which this trial was based. The Prohibitions

section of the Regulations contains

section 3, 4, 5, 6, and 7 which read in their entirety as follows: 3. No person shall use a spotting agent that contains tetrachloroethylene for commercial or institutional dry-cleaning purposes. 4. No person shall use tetrachloroethylene for dry cleaning unless the tetrachloroethylene, waste water and residue are stored in closed containers at all times, except when access is required for operation or maintenance. 5. No person shall sell tetrachloroethylene to the owner or operator of a dry-cleaning machine or use tetrachloroethylene for drycleaning unless the dry-cleaning machine (

a) uses the same drum for the washing, extraction, drying and aeration cycles; (

b) has an integral refrigerated condenser that recovers tetrachloroethylene vapour in the recirculated air from the drum of the machine; (

c) prevents tetrachloroethylene vapour in the drum from being vented into the atmosphere during the washing, extraction, drying and aeration cycles; (

d) has an integral tetrachloroethylene-water separator that recovers tetrachloroethylene from waste water; (

e) has a manufacturer’s design rating for tetrachloroethylene consumption equal to or less than 10 kg or 6.2 L of tetrachloroethylene per 1000 kg of clothing cleaned or, alternatively, was installed or in use prior to August 1, 2003; and

(

f) is operated within a dry-cleaning facility that is equipped with (

i) a tetrachloroethylene-impermeable secondary containment system encompassing at least the entire surface under each dry-cleaning machine, tank or other container containing tetrachloroethylene, waste water or residue and capable of containing at least 110%of the capacity of the largest tank or container within the containment system, and (ii) tetrachloroethylene-resistant drain plugs that are readily available to seal all floor drains into which tetrachloroethylene, wastewater or residue may flow in the event of a spill. 6. [Repealed, SOR/2011-216, s. 3] 7. Despite

section 5, no person shall use tetrachloroethylene in a self-service dry-cleaning machine. [7] Significantly, as conceded by counsel for the Crown, the Regulations do not contain a definition of secondary containment. Ms. Carlson filed a decision of Judge L.J. Wenden in R v Precision Plastics Ltd., 361235 Alberta Ltd., and Ralph Lynn Acres, 2003ABPC 129; 337 AR 210. In that decision Judge Wenden does discuss a definition of secondary containment in the context of regulatinghazardous waste, oil filters and used lubricating oil. Ms.

Carlson concedes that the definition of secondary containment was notnecessary to dispose of the charges in the Precision Plastics decision but she indicates that the obiter comments of Judge Wenden maybe useful to me in the context of these charges. [8] It is clear in the Precision Plastics decision Judge Wenden had a great deal of evidence regarding the term secondarycontainment.

The decision indicates in part as follows: [257] A consideration of the evidence of the witnesses and the material from Alberta and other jurisdictions reveals a common thread,that secondary containment is focussed on the attainment of an objective. That objective is the timely management, control, and cleanupof any accidental release from a primary container. The goal is to prevent the release from entering the surrounding environment, andpotentially causing an adverse impact or effect. The environment contemplated is the ground and surface area around the primary site.

Secondary containment must prevent the material from migrating downward, into the subsurface, or laterally away from the primarycontainer. Moreover it must prevent escape to sewer systems, or bodies of water. Release to the air seems not to be contemplated, andindeed in the Ontario regulation, release to the air is specifically excluded. [9] Judge Wenden, based on the evidence, draws the following conclusion: [266] A secondary containment system is a separate system whose sole function is to contain as close as possible to it any leakagefrom the primary container. It exists for no other reason.

It is functionally and physically tied to the primary containment vessels, andis not multi-functional. The requirement that the secondary containment system “have no openings .... that provide a direct connection tothe area surrounding the system”, is for the same preventative purposes as set out in subsection (b), that is that any liquid hazardouswaste be prevented from spreading to other areas. [10] In this case there was no evidence presented as to the term secondary containment or how it should be applied. THE LAW [11] Ms. Carlson indicates that the offence should be classified as a strict liability offence.

If the Crown is able to prove the actusreus beyond a reasonable doubt, the onus shifts to the defendants to establish on a balance of probabilities that they acted with duediligence. [12] The seminal decision regarding strict liability is R v Sault Ste. Marie, (SCC), [1978] 2 SCR 1299. JusticeDickson (as he then was) defines a strict liability offence as follows: In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has beentaken. This burden falls upon the defendant as he is the only one who will generally have the means of proof.

This would not seemunfair as the alternative is absolute liability which denies an accused any defence whatsoever. While the prosecution must prove beyond

a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish in the balance of probabilities that he has a defence of reasonable care. [ 13 ] The doctrine of due diligence has been interpreted as applying a reasonable person test. Care must be taken not to equate due diligence with great or extraordinary diligence. Mr. Justice Barclay in Westfair Foods Ltd. v R , 2006 SKQB 87 ; [2006] 8 WWR 377; 277 Sask R 288, states as follows: [27] The trial judge concluded that the appellant did not establish the defence of due diligence.

There is no dispute as to the facts of this case. Although the trial judge correctly set out the state of law surrounding the defence of due diligence, I am of the view that the trial judge erred in applying an unreasonably high standard for this defence.

The question before the trial judge was whether the appellant had taken all reasonable care in establishing a proper system to prevent their cashiers from selling tobacco to minors and whether they had taken reasonable steps to ensure the effective operation of this system. [28] In order to resolve this issue, the trial judge was required to consider what a reasonable person would have done in these circumstances to avoid this offence. A reasonable person is not required to possess extraordinary or great diligence. They are not required to exercise extreme care that a person of unusual prudence would apply.

Instead, in establishing the defence of due diligence for a strict liability offence, an accused must show that he took all reasonable steps to avoid the offence. POSITION OF THE PARTIES: [ 14 ] The evidence indicates that this dry cleaning operation was in compliance with the Regulations except, it is alleged, the 45 gallon blue barrel of PERC that was located in the storage shed at the rear of the retail outlet. During cross-examination Mr. Anderson indicates as follows: Q: In connection with this dry cleaning process I’m going to suggest to you that Mr. Evaschesen complied entirely with 5(

a) through 5(

e) of the Regulations . Agreed? A: That -- I couldn’t find any non-compliance with those. Q: It’s a brand new -- well, very new late model, state of the art dry cleaning machine that does all the -- does all the distilling and converting the product back to Percethylene and disposing of waste water. It’s a modern machine, isn’t it? A: It’s a -- could you define modern, as in – Q: So how is it now, sir, of -- on your reasoning, how is it when we get to 5(

f) that -- that storage and handling back in the warehouse becomes part of the operation of a machine? Explain that to me. A: Again, it’s -- the operation containing PERC. Because it is a toxic substance they want to make sure that everything is contained if there was a spill, or -- from the barrel. Q: So this whole charge rests on your assertion that that barrel of virgin PERC back in the warehouse constitutes part of the -- operation of the dry cleaning machine. Correct? A: The PERC is integral to the dry cleaning machine because it takes out the oils.

[ 15 ] In her submissions, Ms. Carlson summarized the position of the Crown stating: Your Honour, the charge here relates, again, to the lack of secondary containment for the barrel, which was located in this particular dry cleaning facility. The evidence from -- from the Crown has shown that this particular barrel was located on a concrete floor. What appeared to be a concrete floor, and there was no form of secondary containment around this particular barrel.

Secondary containment in the sense that should there be a leak then that particular barrel would not -- or that -- that particular substance within the -- that particular barrel, which the evidence indicated to be PERC, virgin PERC, so 100% PERC, should there be a leak there was nothing to contain that particular leak, such that it would then either permeate the cement or end up moving out into the -- it would appear to be a driveway area. [ 16 ] Further in her submissions, Ms. Carlson says: MS.

CARLSON: Well, in -- and certainly in this situation, Your Honour, what we’re -- we’re indicating is -- is that the elements of this particular offence are that we have a dry cleaning facility; it has a dry cleaning machine; this dry -- this dry cleaning facility was using PERC for its dry cleaning machine; this particular facility had containers that had PERC in them, and one of those containers did not have secondary containment under them, and that’s the big barrel.

And we would suggest that it’s been -- the -- the evidence does show that this was a dry cleaning facility, it did have a dry cleaning machine, they’re – THE COURT: What about the separate building, what do you say to that? MS. CARLSON: My understanding is is that the entirety of the -- that this was part of the dry cleaning facility. It -- this particular PERC was being used for the purposes of the dry cleaning. There would be no other reason that Mr. -- that this particular individual accused would have PERC.

No other reason, so if -- if in fact it’s -- it’s a separate area, it’s still part of the dry cleaning facility, because he is using PERC for the dry cleaning machine that he has in his operation. [ 17 ] Mr. Carson responded by urging the Court to adopt a reasonable

interpretation of these Regulations . He says that the PERC was delivered in the 45 gallon barrel and it is reasonable to allow the operator a period of time to remove the PERC from the barrel within his facility. Mr. Carson, in his submissions, says: He doesn’t get the choice if it’s delivered in the barrel or pails that he can lift. There has to be -- in order to comply with the Regulations, and when we talk about repugnancy, and unreasonableness, surely he has to be able to take that product and put it in secondary containment, as part of the operations. [ 18 ] Mr.

Carson goes on to argue that a key term in the Regulations is “equipped” and that this charge must be interpreted with reference to that word: And, again, there’s a key word that’s -- that hasn’t been discussed here today, and that’s that word in -- in

section (

f) when it says, the -- the facility has to be equipped with this stuff. Well, the evidence is that it is equipped. All he -- all he does, he said, I can’t handle a 45 gallon drum, I put it in 5 gallon pails and I -- I’m equipped with secondary containment. I put it in there, that’s how I’ve done it for 40 years. And that’s how I do it. Isn’t that key word equipped, the -- the turning point on -- on

section (f)? It’s not a question of whether a pail is momentarily out of secondary containment. It’s a question of whether it’s equipped and you’re using it that way, to comply with the Regulations. Are we going to convict this man because he takes a pail out, puts the tight fill on it and has -- and pours it into the machine? He can’t carry the secondary containment with him. The Crown wants to set up all sort of reasons why you cannot ever comply with this law. And that’s what is so unreasonable and wrongheaded here. It’s the question of how is he equipped. That’s the key word, and it -- and a lot turns on that. And if you use that term then the -- the inconsistency between 5(

f) and 4 disappears, Your Honour. I think it disappears. ANALYSIS: [ 19 ] The defendant in these proceedings, Peter Evaschesen, testified. In examination-in-chief he described his business experience and indicated his understanding of the transportation of PERC: Q: What do you know about the transportation of this product? Is that part of your -- do you have knowledge of how that works? How

the transportation works for you to get a -- a barrel to your place. A: Well, when I phone them, they -- they look after the shipping out of there, and I tell them to make sure it’s in the -- that it’s the proper container. Q: Yeah. A: And they do have, like, a smaller barrel -- Q: Yeah. A: -- but they were out of them, but they shipped this one in a 45 barrel drum, which is -- I believe 205 litres. Q: Yeah. And how do you -- how does it arrive at your place?

A: It comes in a truck with a tailgate, and they have a forklift, a pallet jack, and they move that in there, and they just dropped it off at the back door there. So it just, you know, that shipment just arrived, and it was right at the front -- where the -- the warehouse door that goes up and down, right there. Q: Yeah. But the -- this warehouse that wasn’t part of your -- that’s not part of the retail dry cleaning establishment – A: No. Q: -- the machine. A: It’s a separate building all together, it’s 1500 square feet. The dry cleaning plant is 1800 square feet, up front. Q Okay. So this is your warehouse.

A: Yeah. [ 20 ] Mr. Evaschesen further testified as to his practice of pumping the PERC from the 45 gallon transportation drum into smaller containers and then placing these containers in secondary containment: Q: You -- you don’t have any choice in the selection of the shipping container for the Percethylene, do you. It -- it comes from the manufacturer. A: No. They’re -- you buy it from the supplier and they put it in the proper container. Q: Can you describe it for the -- for the Court, what the -- what the -- the containment method is when it -- when it reaches you.

A: It comes in a barrel, comes on that truck, and it’s -- it seems to be a heavier durable barrel. Like, it’s a -- an approved barrel container

for Perchloroethylene. Q: Yeah. And – A: And they ship these barrels back and forth across Canada, left and right and – Q: Do you have any means of physically handling this barrel when it’s in -- when it gets into your warehouse? A: It’s a little bit too heavy, I’m 72 years-of-age, and -- so it’s much easier to pump it, you know, from the barrel into a smaller container, and then I put that in a secondary containment pan. And we have two of those in the back shop. Q: Yeah. A: So we’re up to date on all the environment things, we have -- you know, all the stuff that you need. Q: Yeah.

This -- this particular container, again, it -- it appears blue in the photograph. It -- is it a -- is it a plastic or a steel barrel? A: It’s a steel barrel. Q: Okay. And -- and – A: And it’s labelled Perchloroethylene, it’s a special barrel for PERC. Q: And – A: They’re coated inside -- they have a special coating inside, too. Q: I see. And was it a similar container to all of the other barrels, there were probably hundreds of them that you’ve taken over the years. [ 21 ] In cross-examination, Mr.

Evaschesen confirmed that once the PERC is pumped into the smaller containers, it is placed in secondary containment: Q: -- why. You -- you certainly do have secondary containment in your facility with regard to your dry cleaning machine as well as your waste water. A: Correct. Q: As well as storage of these smaller barrels, once the PERC is moved -- A: Yeah.

Q: -- into those barrels. A: Yes. We have -- Q: And -- and you have an understanding of why that is and you’ve indicated that because of the possibility of leaks -- A: Yes. Correct. Q: -- and the possibility of concern -- A: Yes. Q: -- to the environment of the -- as a result of the leak. [ 22 ] I believe Mr. Evaschesen’s testimony. He has a plan in place to move the PERC into smaller containers and then place them in secondary containment. Mr. Anderson testified that the secondary containment system he inspected at the business was appropriate. Mr.

Evaschesen said that he understood the rationale for secondary containment and was endeavouring to comply with the Regulations . The larger barrel of PERC was delivered and Mr. Evaschesen was in the process of moving the PERC to secondary containment. He took reasonable steps to comply with the Regulations and I find that he was duly diligent, at a minimum. [ 23 ] In these circumstances, I question whether the Crown has proven beyond a reasonable doubt the actus reus of the offence. There was no evidence describing secondary containment in the context of these Regulations .

Given the lack of a definition of secondary containment in these Regulations , together with Mr. Evaschesen’s evidence that the large blue 45 gallon transport container was, to his understanding, lined to prevent the dangers of spills, I have a reasonable doubt as to whether this PERC was not in secondary containment in the 45 gallon drum. If I am wrong in this conclusion, I am of the view that Mr. Evaschesen’s evidence, together with all of the circumstances, established a reasonable, prudent course of action to ensure PERC was maintained in secondary containment while at his facility.

To reiterate, I am satisfied that Peter Evaschesen and Chetal Enterprises Limited, acted with due diligence in relation to the storage of the tetrachloroethylene at their facility. [ 24 ] Peter Evaschesen and Chetal Enterprises Limited are not guilty. [ 25 ] Dated this 9 th day of October, A.D. 2014, at the City of Melfort, in the Province of Saskatchewan. ___________________________ H. M. Harradence, J