R. v. 0467891 B.C. LTD. Date, 2014 BCPC 176

Citation: R. v. 0467891 B.C. LTD. Date: 20140704 D.B.A Lester Cleaners File No: 59193-1 2014 BCPC 0176 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. 0467891 B.C. LTD. D.B.A. LESTER CLEANERS ALHAMID DHARSHI REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MERRICK Counsel for the Crown: P. Mann Counsel for the Defendant: J. Deuling Place of Hearing: North Vancouver , B.C.

Date of Hearing: June 5, 2014 Date of Judgment: July 4, 2014 A Corrigendum was released by the Court on September 26, 2014. The corrections have been made to the text and the Corrigendum isappended to this document. [1] THE COURT: 0467891 B.C. Limited doing business as Lester Cleaners has pled guilty to the offence of usingtetrachloroethylene for dry cleaning without storing the tetrachloroethylene in closed containers contrary to s. 4 of theTetrachloroethylene Use in Dry Cleaning and Reporting Regulations thereby committing an offence described in s. 272(1)(

a) of theCanadian Environmental Protection Act, and has pled guilty to unlawfully using tetrachloroethylene for dry cleaning in a dry cleaningfacility which was not equipped with a tetrachloroethylene impermeable secondary containment system encompassing at least the entiresurface under each container containing residue contrary to s. 5(f)(

i) of the same legislation. [2] On June 21st, 2012, enforcement officers conducted an inspection at Lester Cleaners in order to determine if there were anyrisks associated to the environment posed by the facility. During the inspection, officers noted two buckets located behind the drycleaning machine that contained a green liquid. There were no lids on either of these containers and they were stored directly on theground without any tetrachloroethylene impermeable secondary containment.

A sample was obtained which was subsequentlyconfirmed by a lab analyst as containing tetrachloroethylene, hereinafter referred to as PERC. See Crown Sentencing Brief Paragraphs14 to 16. [3] Mr. Dharshi, the director of the company, was present during the inspection and stated the buckets behind the machinecontained PERC waste water and would be processed into the dry cleaning machine as needed. Officers also located and sampled a bluebarrel of sludge in the rear of the facility directly on the ground without any tetrachloroethylene impermeable secondary containment.

Asample of the sludge was taken and was subsequently confirmed by a lab analyst as containing PERC. See Crown Sentencing BriefParagraph 17. [4] Mr. Dharshi subsequently provided a statement confirming that the buckets contained PERC and the barrel contained PERCwaste. He advised that the machines run daily and, furthermore, the white buckets and blue buckets were missing the secondarycontainment system for some three to four months prior to the inspection by Environment Canada. Mr. Dharshi confirmed that hereceived compliance and promotional materials relating to PERC sometime in the past.

See Crown Sentencing Brief Paragraph 18. [5] This was not the company's first encounter with Environment Canada nor was it Mr. Dharshi's first encounter withEnvironment Canada. In 2004, the company, under a previously incorporated name, and Mr. Dharshi received a warning letter forstoring PERC in an open container. In 2005 and 2006, the company, under a previously incorporated name, and Mr. Dharshi receivedwarning letters regarding failure to file annual reports.

See Crown Sentencing Brief Paragraphs 21 to 23. [6] On a follow-up inspection in 2006, Environment Canada enforcement officers discovered three open containers of PERC wastewater and five closed containers of PERC residue all without secondary containment. The officers provided a verbal warning to Mr.Dharshi and the company whereby they explained the need to correct these violations to Mr. Dharshi. Mr. Dharshi stated that he wouldpurchase the necessary trays and arrange to have the waste picked up.

See Crown Sentencing Brief Paragraph 24. [7] In March 2011, Environment Canada officers conducted an inspection during which they discovered a 60-litre barrel connectedto the dry cleaning machine containing waste water and a barrel of PERC waste both without secondary containment. At the time theyidentified the problem to Mr. Dharshi and explained what was required. The officers later followed up with a warning letter to Mr.Dharshi and the company.

See Crown Sentencing Brief Paragraph 25. [8] It is important to note that these offences occurred June 21st, 2012, the day before amendments to the legislation took effectlegislating mandatory minimum penalties for these offences.

General Sentencing Principles [9] Sentencing is an individualized process in which the court must take into account not only the circumstances of the offence, butalso the specific circumstances of the offender, although the court must consider all principles of sentencing set out in the Criminal Codeand the Canadian Environmental Protection Act, certain principles will receive more emphasis than others depending on the nature ofthe offences committed. See R. v. Ralph 2014 BCSC at paragraph 23.

Position of the Parties [10] Crown counsel submits that in consideration of the risk of harm, the degree of culpability of the company, and the company'snon-compliance history, the size of the company, and the early guilty plea, fines of $5,000 on each of the two counts is appropriate in thecircumstances. [11] Defence counsel submits that considering the mitigating factors, the size of the company, the circumstances of the offence, andthe efforts at remediation, fines totalling $7,500 are appropriate. Aggravating Factors 1. There was a risk of damage to the environment.

2. There was a risk of harm to human health. 3. The company displayed a certain degree of carelessness in not adhering to the regulations as required. The culpability isespecially high as the company was given notice of the Regulations and has a history of non-compliance. 4. The company was provided with compliance information and warning by Environment Canada on five previous occasions. 5. These offences were committed for financial gain. Mitigating Factors 1. The company has pled guilty. 2. This is the first enforcement action against the company. 3. The company representative, Mr.

Dharshi, was cooperative with enforcement officers. 4. The company has purchased a ZeroWASTE HX PERC machine thereby reducing the risk of future offences, although I note thatthat will not be in place until August of 2014. [12] Defence counsel submitted that the adverse publicity that the company has suffered is an additional mitigating factor that Ishould consider. With respect, I disagree. Adverse publicity is not a mitigating factor; see R. v. Ralph, 2014 BCSC 467, atparagraph 50.

Fundamental Purpose of Sentencing [13] The fundamental purpose of sentencing for offences under this legislation is to contribute to respect for the law, to protect theenvironment, and human health through the imposition of just sanctions that have as their objectives: (

a) to deter the offender and other persons from committing offences under this Act; (

b) to denounce unlawful conduct that damages or creates a risk of damage to the environment or creates a risk of harm to humanhealth; and (

c) to reinforce the "polluter pays" principle by ensuring that offenders are held responsible for effective cleanup and environmentalrestoration. [14] Simply stated, however, environmental crimes hurt each and every one of us. Members of the community have the right andshould know that when they enter a store, that store is complying with legislation. They should not be risking their health unknowinglyby entering somebody's store.

The primary sentencing objectives should be to correct any harm to the environment and to ensure that thecorporation takes all necessary steps to make certain the offence is not repeated. [15] In this case, given the history of non-compliance, both specific and general deterrence are the primary sentencing objectives. Range of Sentence [16] I have been referred to a number of sentencing precedents, many from Alberta.

While decisions from outside British Columbiaare not generally useful in determining a range for this province, when the number of B.C. cases are so few, as they are in this case, I ampersuaded that the Alberta cases should be considered; see R. v. Stauffer, 2007 BCCA 7, at paragraph 47. [17] The case authorities suggest fines are appropriate. However, this company has blatantly disregarded five previous warnings. Although not measured, it is quite likely that PERC was in the air and customers were exposed to it.

Although the company has takensteps to ensure the offences will not occur again, that did not really occur until March 2014. These aggravating factors favour a jailsentence. However, because this offence occurred prior to June 22nd, 2012, when the mandatory minimums became effective, andconsidering the mitigating factors, defence counsel has persuaded me that fines are a just and appropriate sentence in the circumstances. [18] With respect to Count 1, the sentence will be similar or the same as imposed by my colleague Judge Mrozinski in R. v. CheechHoldings. There will be a fine of $4,500.

With respect to Count 2, I am of the view given the previous warnings and the continued lackof non-compliance that a $5,000 fine is appropriate. There will be a fine of $5,000 on Count 2 for a total of $9,500. [19] Time to pay? [20] MR. DEULING: Your Honour, would the court agree to two years? [21] THE COURT: Yes. Time to pay will be to July 4th, 2016. [22] MR. DEULING: He will have to sign, then, I think at the registry today. [23] THE COURT: I think that is what happens.

Is that correct, Madam Clerk, he goes to the registry on behalf of the company toget a fine notice, or is this one of the offences where the Crown prepares -- [24] MS. MANN: No. [25] THE COURT: No.

[26] MS. MANN: No, no, Your Honour, that is correct. Mr. Dharshi would have to attend downstairs with respect to the fine. What I am wondering is whether or not there should be a monthly

schedule in place, as well, to help along given the size of the fines, tohelp Mr. Dharshi along in terms of making payment and, if there is any issues, then they could always be brought forward before thecourt, as well. [27] MR. DEULING: I discussed that with him, Your Honour, and he wanted to talk to his accountant, but I am agreeing with myfriend, it might be a good idea to put a

schedule up and then if it does become a -- we can -- then he can take that -- [28] THE COURT: Exactly, that can -- [29] MS. MANN: Mm-hmm. [30] THE COURT: So I will say payable at the rate of $400 per month which means the last payment would be slightly less than$400, obviously. [31] MS. MANN: Yes, so $400 per month payable on a specific date of the month? [32] THE COURT: Oh, yes, thank you. Payable August 1st and continuing on the first day of each month thereafter. [33] THE ACCUSED: August 10? [34] THE COURT: August 10, yes, August 10 is fine. [35] MR. DEULING: 2014? [36] THE COURT: Yes, commencing -- [37] MS.

MANN: Until the full payment is made by August the -- pardon me, by July 4th, 2016. [38] THE COURT: Yes. [39] MS.

MANN: Thank you, Your Honour. [40] THE COURT: So the fines total $9,500 payable, first, with respect to Count 1, at the rate of $400 per month commencingAugust 10, 2014, and continuing on the 10th day of each month thereafter until that fine is paid and then it continues over to Count 2 at$400 per month, except that the fine must be paid in full by July 4th, 2016. [41] THE CLERK: And, Your Honour, I apologize, I am not sure if this is a question for the court or a question for the registry, isthere a victim surcharge? [42] THE COURT: I do not think there is a victim fine surcharge or -- [43] MS.

MANN: No, no, there is not. [44] THE COURT: Yes, that is -- [45] THE CLERK: Thank you. [REASONS FOR SENTENCE CONCLUDED] CORRINGENDUM - Released September 26, 2014 [1] Further to the Reasons for Judgment filed July 4, 2014, paragraph [12] contains a citation that should read: R. v. Ralph, 2014BCSC 467, at paragraph 50. [2] My Reasons for Judgment are hereby amended.