Her Majesty the Queen - v. -, 2015 SKPC 023

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 023 Date: February 23, 2015 Information: 24150974 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Meadow Lake OSB Limited Partnership Appearing: Peter A. Hryhorchuk, Q.C. For the Crown T. John Agioritis For the Accused DECISION E. KALENITH, J A.

INTRODUCTION [ 1 ] Meadow Lake OSB Limited Partnership (MLOSB) is a shareholder to a Forest Management Agreement (PAFMA) that outlines its rights and responsibilities with respect to a licence covering large areas of Provincial and Crown forest. After compliance and enforcement field officers found waste left at certain sites, and no garbage cans or no garbage cans with lids at certain sites, MLOSB is charged for such violations of The Forest Resources Management Act , SS 1996 c F-19.1 ( FRMA ) and The Litter Control Act , RSS 1978, c L-22 ( Litter Control Act ).

[ 2 ] This case raises the following issues: a. Whether the information is a nullity; b. Whether the Side Agreement to the licence requires the Ministry of Environment to follow the detailed enforcement process described in the Side Agreement prior to prosecution; c. Whether prosecution in this case amounts to an abuse of process; d. Whether the Crown has proven the essential elements of the offences; e. Whether the defence of officially induced error applies; f. Whether the defence of due diligence applies on the basis that: i. There was a mistaken belief of fact; or ii.

All reasonable precautions were taken to avoid the offences. [ 3 ] I find that: MLOSB is guilty of two offences relating to the Roberts Lake Block, counts 1 and 2, and not guilty of the remaining charges. My reasons follow. B.

IS THE INFORMATION A NULLITY? [ 4 ] MLOSB submits that a limited partnership is neither a legal entity with a separate legal existence from its partners, nor a person with a separate legal existence at common law, and thus, unlike an individual or a corporation, it cannot be convicted under The Litter Control Act or the FRMA . [ 5 ] MLOSB submits that it is made up of a partnership of the general partner, MLOSB Corp., and a limited partner, Tolko Industries Ltd. [ 6 ] MLOSB submits that since a limited partnership is not a legal entity with a separate legal existence from its partners, nor a person with a separate legal existence at common law, unlike an individual or a corporation, a limited partnership cannot be convicted under The Litter Control Act or the FRMA .

MLOSB further submits that the relevant offence provisions refer to no person committing the prohibited offences but do not define person and that the relevant sentencing provision expressly provide for sentencing of only an individual or a company. Further, MLOSB submits that The

Interpretation Act, 1995 , SS 1995, c I-11.2 ( The

Interpretation Act ), applies given a lack of definition of person within the Acts relevant here, and that in s. 27(1) of The

Interpretation Act , person is defined as including a corporation and the heirs, executors, administrators or other legal representatives of a person. It points out that this definition does not include a limited partnership. [ 7 ] I find that, as the Crown submits, MLOSB is a person properly charged under The Litter Control Act and the FRMA , for the following reasons: a. While s. 27(1) of The

Interpretation Act defines what a person includes, it does not exclude other entities such as limited partnerships from being a person; b. These charges are brought pursuant to the

Summary Offences Procedure Act 1990 , SS 1990-91 c S-63.1 (

Summary Offences Procedure Act ), which makes applicable

Part XXVII of the Criminal Code ; c.

Section 2 of the Criminal Code defines person as including an organization, and defines organization as meaning, among other entities, a partnership; d. The Forest Resources Management Regulations define a person as including a partnership; e. Section 99(1) (

a) of the FRMA authorizes making regulations which can define words or expressions used in the Act but not defined in the Act; f. It is consistent with s. 10 of The

Interpretation Act which directs that

an Act must be interpreted as being remedial and given a fair, large and liberal construction and

interpretation that best ensures attainment of the objectives of the Act; g. It makes good sense that an entity that can obtain a licence under the FRMA can also be charged with breach of the FRMA ; h. While the Manitoba Court of Appeal ruled in R v AFC Soccer , 2004 MBCA 73 , that the Information was a nullity when it

improperly used a business name in a charge where there was no corporation in existence, it dealt with a charge under the Canadian Copyright Act , to which the Canadian

Interpretation Act applied, which Act provides that only procedural provisions of the Criminal Code apply. This is distinguishable from the

Summary Offences Procedure Act which relates to substantive law and is not limited to procedure. C. EFFECT OF SIDE AGREEMENT [ 8 ] MLOSB submits that the Side Agreement is binding on the Crown and either prevents prosecution under the FRMA or The Litter Control Act or requires following detailed enforcement prior to prosecution. [ 9 ] It submits that the reasons that prosecution is prevented are: a. The provisions of the Side Agreement dealing with shareholder defaults were included at the government’s request and were drafted by lawyers for the government; b.

The penalty provisions of the Side Agreement comply with the governing legislation, including the FRMA ; c. The possible fine as an administrative penalty under the Side Agreement, in the amount of $10,000.00, is significantly higher than the maximum fine of $2,000.00 for first offence under The Litter Control Act ; d. While the Side Agreement indicates that penalties may be assessed for shareholder default, it must be considered in light of the

preamble of the PAFMA in which the Minister of Environment undertook not to exercise its statutory authority in a manner inconsistent with the PAFMA. [ 10 ] I find that there is nothing in the evidence or the PAFMA that prevents prosecution for offences under the FRMA or any other provincial legislation such as The Litter Control Act . There is no mention of prosecution in the PAFMA or the Side Agreement. Nor do I find that there was anything in the agreements to provide that the government was contracting out the laws of general application.

If either was the intent of the agreements, there would have been clear language indicating an intention to do so. [ 11 ] I find that the same reasoning holds true with respect to the enforcement process.

Article 4.2 of the Side Agreement, setting out the process where there is a shareholder’s default, relates to those defaults and the steps that can be taken in light of them. I find this to be a separate process from prosecution under the FRMA or The Litter Control Act , which provide for their own separate and distinct penalties for violations. I find that the detailed enforcement process under the Side Agreement applies only to shareholder default where the government seeks to impose the penalties permitted under the Side Agreement. D.

ABUSE OF PROCESS [ 12 ] MLOSB submits that the negotiated Side Agreement authorized certain activity for a period of time by promoting a clear and mandatory enforcement and notification process and a sixty day remedy period.

It is further submitted that the Side Agreement provides an implied undertaking not to prosecute or an express undertaking not to prosecute without following the prescribed enforcement process. [ 13 ] Prosecution, or failure to delay prosecution unless a certain process is followed, would amount to an abuse of process justifying a stay of proceedings if done so in breach of an undertaking. [ 14 ] Given the lack of any clear language indicating such an undertaking was given and nothing in the agreement or evidence that leads to the belief that it was inferred, I find that no such undertaking was given here. [ 15 ] I thus find no abuse of process.

E. PROOF OF THE OFFENCES 1.

Litter Control Act charges – counts 2 and 5 [16] The charges here are based on allegations that waste was abandoned or caused to be abandoned on Crown land. [17] MLOSB submits there is no evidence that it abandoned anything or that it was done intentionally. [18] Given the evidence that the places where garbage was found were assigned to MLOSB, and that harvesting operations weregoing on in those areas by MLOSB contractors, I find that MLOSB is responsible for the actions of those contractors in leaving garbagein the places alleged. [19] As this offence is a public welfare offence which is one of strict liability, the Crown is not required to prove intent or mensrea, as the Supreme Court of Canada held in R v Sault Saint Marie, [Sault Saint Marie].

The defence of reasonable careapplies, leaving it open for the defendant to prove on a balance of probabilities that due care has been taken. [20] While the case of Kallooar v Reginam, 50 WWR 602, did find that to be convicted of abandoning hunted caribou it must beshown that it was intentionally abandoned, it was decided before Sault Saint Marie and did not consider whether the regulatory offencewas one of strict liability. [21] Count 2 related to a water tank, tire and rim, a geotextile roll, a culvert, and some geotextile roll in a waste pile found in block23-37-006 (the Roberts Lake Block) when an inspection was done on June 18, 2013.

The evidence suggested that the log pile andmaterial was left there from the spring when a log bridge was pulled to prevent beaver damming problems.

A Notice of Violation wasgiven and the material was removed partly in the summer, with the rest being removed by October 11, 2013. [22] While there was evidence from Officer Burtney that James Norman of MLOSB, when told about the material in July 2013,said that he knew of the material and planned to retrieve it at a later date, there was no evidence of any actions taken to do so, or anyconcrete plans to do so, until after notification was given and the garbage was found.

I find that abandonment of the materials wasproven. [23] Count 5 relates to finding materials including a four litre hydraulic fluid pail, four grease tubes, a four litre plastic oil jug andsome pop cans on a reclaimed road in block 2-77-007 (the Rabbit Lake Block) when an inspection was done on October 27, 2013. [24] Evidence confirmed that this block was in active operation, that there was an active camp across the road from this block, thatsome of the materials found (a milk container, pop cans, water bottles and a candy wrapper) were not consistent with logging -- therebeing a number of ski-doers and trappers in the area, that the hydraulic fuel pails found did not match the type used by the contractor,and that the materials found were that day taken by a Tolko employee to Eagle Creek’s camp nearby and put in a receptacle there. [25] There being no evidence of any actions taken, or a specific plan to clean up the materials found in any defined time frame, Ifind that these materials were abandoned. 2.

FRMA charges – counts 1, 3 & 4 [26] These charges are based on allegations that the operating plan for the relevant time was violated by a failure to have waste in acontainer with a lid at the respective sites. [27] In count 1, relating to the Roberts Lake Block, none of the materials found were in a container and no container was present.

[ 28 ] Count 3 relates to an active crew camp in block 23-37-017 (Roberts Lake Block) operated by A & A Logging for MLOSB. Officer Burtney inspected this camp on September 25, 2013 and found pop cans, an oil jug, a grease tube and cardboard boxes on the ground with no container with a lid, although evidence was led of there being a covered garbage bin at the camp inside the bunk house. [ 29 ] Count 4 relates to the Rabbit Lake Block and the finding of materials on the road. There was no container with a lid on this block. F. DUE DILLIGENCE [ 30 ] MLOSB submits that this defence applied here because: a.

It acted on a mistaken belief of facts; and b. It took all reasonable steps to avoid the offences occurring. Mistake of Fact [ 31 ] MLOSB argues that mistake of fact applies here because it honestly but mistakenly believed it had sixty days to rectify the actions of littering based on its

interpretation of the Side Agreement which permitted it sixty days to rectify shareholder defaults. All of the litter except some of the litter in the Roberts Lake Block was removed within that sixty day time period. [ 32 ] As this mistaken belief relates to steps to be taken to rectify the littering, and not to a justification for committing the offence, I find it to be inapplicable to this case. These offences are for violations of the FRMA and The Litter Control Act and not the Side Agreement.

Reasonable Steps [ 33 ] Regarding reasonable steps, the issue is whether MLOSB took all the reasonable steps that a reasonable person would take to comply with the relevant laws.

In particular, the issue is whether it had a reasonably elaborate system in place to prevent the offences from occurring and took reasonable steps to ensure efficient operation of the system, not whether it had a perfect system or one which took every possible step. [ 34 ] Here the acts were those of the contractors and so the assessment is based on whether MLOSB’s system reasonably instructed them and supervised them. [ 35 ] MLOSB’s system involved the following: a.

A two to three hour contractor orientation before each harvesting season where all regulatory issues are covered including issues relating to garbage and camp cleanliness; b. Providing contractors with a contractor operations manual containing all permits and standards and guidelines which must be followed; c. Tracking the orientation session to ensure all contractors and sub-contractors are covered each year; d. Going through a pre-work checklist where garbage and camp issues are discussed again; e. Doing operations inspections during and at the end of a contractor’s work; f.

Going into the blocks to do regular audits of contractors, usually two to three times per week; and g. Having penalty provisions in harvesting agreements with the contractors.

[ 36 ] Evidence was also led that, on learning of the offences, MLOSB took steps to clean up garbage and address problems by: a. Sending a memo to all contractors regarding garbage issues; b. Flying over all blocks used in the last three years to ensure that there were no operations issues; and c. Purchasing equipment to increase the ability to pick up materials. [ 37 ] The Crown argues that due diligence in this case would require: a. Ensuring that the camps and work areas had containers with lids so that the waste could be contained within them; b.

Conducting the contractor auditing system in a way that would catch and correct the noted infractions; c. Using the penalty provisions with contractors more than the evidence revealing it was only used once; and d.

Providing more specific materials relating to the obligation to provide containers with lids and to not abandon garbage especially given the vast amount of material provided to contractors and sub-contractors in their training sessions. [ 38 ] The Crown further argues that if the inspection system was conducted properly then the lack of garbage cans, and the littering, would have been discovered and a subsequent letter specifying the need to do that, and the penalties that would follow for lack of compliance, would not have been necessary. [ 39 ] I find that it is clear on the evidence that the system did not catch the infractions for failing to provide garbage cans, or cans with lids, and ensuring that all litter on the various blocks were within those cans. [ 40 ] Nonetheless, I find that MLOSB did take all reasonable and necessary steps in informing the contractors of their obligation to provide the necessary containers and to pick up garbage, and that the failure to comply was as a result of the fault of the contractors and not MLOSB. [ 41 ] I find that different reasoning applies to counts 1 and 2 relating to the violations in the Roberts Lake Block. [ 42 ] Relating to these charges, MLOSB led evidence that they knew, at the time of notification of the violation by the enforcement officer, that material was on the block and it was not in a closed container.

Their evidence was that they intended to clean up this block and remove the material, which they did over the ensuing months. [ 43 ] I find that once their system discovered the violation, there was an obligation to clean it up and rectify the violation, which they failed to do for a number of months. [ 44 ] Given this lack of action at an early instance, I find that they did not take all reasonable steps to comply and are thus guilty of counts 1 and 2. G.

CONCLUSION [ 45 ] Accordingly, I find MLOSB guilty of counts 1 and 2 but I find them not guilty of counts 3, 4 or 5 and I dismiss those charges. [ 46 ] Dated this 23 rd day of February, A.D. 2015, at the City of Prince Albert, in the Province of Saskatchewan. ___________________________ E. Kalenith, J