R. v. Tolko Industries Limited, 2015 MBPC 33

CITATION: R. v. Tolko Industries Limited , 2015 MBPC 33 Date: 2015 07 13 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Deborah Carlson and David Gray ) for the Crown ) and ) ) ) Tolko Industries Limited ) William Gardner ) for the Accused ) ) ) ) Reasons for Decision delivered: ) July 13, 2015 MCDONALD, P.J. [ 1 ] This matter appeared before this Court in Flin Flon on June 16, 2015 for argument on the application by the accused corporation to have

section 5(b)(iv) of the Forest Use and Management Regulation enacted pursuant to The Forest Act , C.C.S.M. c. F150 and under which the accused is charged, declared invalid on the basis this portion of the regulation violates

section 7 and

section 1 of The Charter of Rights and Freedoms . The basis of the applicant’s argument is that the impugned subsection of the regulation is impermissibly vague.

Section 5(b)(iv) of the regulation reads as follows: The cutting of timber on Crown lands is subject to the following conditions: (

b) in every timber operation, the licensee, permittee, or operator authorized to cut lumber shall... (iv) avoid unnecessarily disturbing the surface of the land. [ 2 ] The accused corporation argues that the term “avoid unnecessarily disturbing the land” is so vague as to be incapable of meaningful legal debate or adjudication by a court of law and as a result violates the protections contained in

section 7 and

section 1 of The Charter of Rights and Freedoms . [ 3 ] In support of its application, two Affidavits were filed by Tolko Industries Limited. These were sworn by Mr. Paul Chapman who is the Woodlands Forestry manager for Tolko Industries Limited, in addition to being a member of the Forestry Practices

Committee (hereafter the “FPC”) established by Manitoba Conservation. Mr. Chapman swore the first Affidavit on May 4, 2015 andthen a further Affidavit on June 8, 2015. The latter Affidavit is in response to an Affidavit of Troy Westroh filed by the Crown, which Iwill reference later in this judgment. [4] In his Affidavit, Mr. Chapman briefly reviews the legislative and regulatory history that led to

section 5(b)(iv). He also mapsthe history of the FPC which was established in 2012 to work on guidelines for proper forestry practices including levels of acceptableand unacceptable rutting (i.e. impressions made in the soil by the tires or tracks of machinery) and soil disturbance. The evidence is thatno guidelines have been set concerning soil disturbance in Manitoba. Attached to the Affidavit as Exhibit “B” are however, the draftguidelines dated January 2015.

The draft guidelines are ten pages long and, to layman at least, seem to be quite extensive setting outforestry practices designed to avoid or remediate soil disturbance and rutting, touching on the deleterious effects of soil disturbance andrutting, and suggesting acceptable quantums for rutting within a defined area. [5] Also attached to the Affidavit of Mr. Chapman as Exhibit “C” is the minutes of a meeting of the FPC which took place onJanuary 14, 2015, the minutes include guidelines for other forestry issues apart from rutting or soil disturbance that were discussed at thecommittee.

Nothing in the minutes, which are brief, reveal any of the parties agreed to or disagreed with the guidelines produced on soildisturbance. [6] In his submission, counsel for the applicant corporation argued that the absence of guidelines for rutting and soil disturbanceconstitutes evidence that the regulation in question is unacceptably vague. [7] The Crown filed an Affidavit from Troy Westroh who is employed by the Department of Conservation and Water Stewardshipas a Regional Forester in The Pas. He is also responsible for the Flin Flon area where the alleged offence occurred. Attached to theAffidavit of Mr.

Westroh at Exhibit “C” is a copy of the licence granted to Tolko Industries Limited to harvest the forest area in question.Paragraph 17 of the licence, which was issued December 30, 1997, states: The Licencee shall minimize soil disturbance to sensitive areas such as dry upland ridges, wet soils, and permafrost area, and byscheduling harvesting and road construction to avoid times when the sites are sensitive to surface disturbance, and by harvesting methodswhich will reduce surface disturbance impacts. [8] In his Affidavit Mr.

Westroh states that there are generally accepted standards in the industry for levels of soil disturbance,broadly speaking “any disturbance that would materially alter the likelihood of successful reforestation is unacceptable andunnecessary.” (paragraph 13) [9] To assist in further understanding the standards of the industry, a number of exhibits are attached to the Affidavit of Mr.Westroh.

This includes Exhibit “E”, a publication by Forest Engineering Research Institute of Canada (FERIC) entitled “Preventing SoilCompaction and Rutting in the Boreal Forest of Western Canada – A Practical Guide to Operating Timber Harvesting Equipment”. Alsoattached at Exhibit “F” is a paper by Ken Van Rees of the Department of Soil Science at the University of Saskatchewan (June 2002)entitled, “Regulations and Guidelines for Soil Disturbance Across Canada”.

Broadly speaking, these publications tend to show thatamongst thoughtful people in the industry, harm caused by soil disturbance to regenerating the forest is well recognized and avoidancetechniques seem to be well known, although exacting guidelines are not common across the country. [10] In determining whether or not a law is impermissibly vague the court must consider the factors enumerated by the SupremeCourt of Canada in R. v. Nova Scotia Pharmaceutical Society, (SCC), [1992] 2 S.C.R. 606 at paragraph 28: 3. Factors to be considered in determining whether a law is too vague include (

a) the need for flexibility and interpretative role of thecourts, (

b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate and (

c) the possibilitythat many varying judicial

interpretations of a given disposition may exist and perhaps coexist... [11] The term “unnecessary”, or like terms, has been the subject of

interpretation by the courts in the past. In R. v. Menard (1978) (QC CA), 43 C.C.C. (2d) 458 Lamer J., as he then was, on behalf of the majority of the Quebec Court of Appeal,dealt with the meaning of the words “without necessity” in the context of the cruelty to animals

section of the Criminal Code as it existedat that time:

“Without necessity” does not mean that man, when a thing is susceptible of causing pain to an animal, must abstain unless it isnecessary, but means that man in pursuit of his purposes as a superior being, in pursuit of his well-being, is obliged not to inflict pain,suffering or injury which is not inevitable taking in to account the purpose sought and circumstances of the particular case. [12] Likewise, the criminal law recognizes a defence of “necessity” to criminal charges. In R. v. Latimer, 2001 SCC 1 ,[2001] 1 S.C.R. 3 the Supreme Court of Canada has identified elements of the defence which include (

a) imminent peril or danger, (

b) noreasonable alternative course of action to the course undertaken by a Defendant, and (

c) proportionality between the harm inflicted andthe harm avoided. It bears mentioning that this defence is based in the common law and had existed for many years prior to Latimer.Although not precisely determined in all its extent in all cases, it is a legal concept capable of being understood and interpreted in aflexible way depending on the facts of any given case. [13] The concept of what is necessary or unnecessary, by its nature, requires the court to interpret its meaning in a flexible way giventhe evidence before it.

In the case before this Court, such an approach is not unfair given the variable conditions for harvesting in theforest, the soil conditions, climatic conditions and the like. [14] “Necessity”, “without necessity” or “unnecessarily” are all phrases which gain meaning depending upon the context in whichthey are placed. In this case it is placed in the context of avoiding the consequences of forest harvesting which can have a detrimentaleffect on the regeneration of harvested forestlands. Is this a concept that is capable of being understood by forest harvesters so that itsatisfies a “standard of intelligibility”?

In this Court’s view such a standard is met. Although precise guidelines are not in place, thepractice of timber harvesting to avoid disturbance to the soil that substantially impairs reforestation appears to be well recognized in theindustry. Whether damage to the soil reaches the stage of being unnecessary will depend on the evidence adduced, but this Court issatisfied that that issue can be determined by evidence and intelligible legal debate. [15] The fact that many different

interpretations of what this regulation means may, or may not, exist does not impair the relativecertainty of this regulation. If there are differences in

interpretation I expect that will arise from the nature and quality of the evidenceplaced before a trier of fact in any given case. [16] The Court is not satisfied that absence of soil disturbance and rutting guidelines, which exist in some provinces, render thisregulation impermissibly vague. There are and have been many enforceable obligations placed on citizens which could be the subject ofregulatory guidelines that are not. For many years there has been a requirement that a parent of a child, who does not have primary careand control of a child, pay support to the parent who has primary care and control.

For most of those years there was no regulatoryguidelines setting out the amount to be paid, as there now is, but the obligation to pay was enforceable nonetheless. The implementationof guidelines have made the payment of child support more intelligible and efficient, but were not a requirement for the lawfulness of theobligation. [17] The Court also recognizes that a more deferential approach must be taken to legislation or regulations, (see R. v. CanadianPacific Ltd., (SCC), [1995] 2 S.C.R. 1031 paragraph 54), with legitimate social policy objectives.

Clearly themaintenance of healthy and sustainable forests in Manitoba is the objective of this legislation and does reflect the predominant socialvalues of the Province and its citizens. [18] This Court finds that the regulation in question is not impermissibly vague and hence does not violate the right to life, libertyand security of the person protected by

section 7 of The Charter of Rights and Freedoms. The Court does not find, for the reasons cited,that the regulation is so vague as to not be “a reasonable limit prescribed in law” and hence it does not violate

section 1 of the Charter. [19] The motion of the applicant is dismissed. “Original signed by:” _________________________ MCDONALD, P.J.