Her Majesty the Queen - v. -, 2013 SKPC 191

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 191 Date: November 25, 2013 Information: 24153718 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - EnviroGun Ltd. and Clint A. Kimery Appearing: Peter Hryhorchuk For the Crown David McKay For the Accused RULING B.D. HENNING, J [ 1 ] The Accused person, Clint A.

Kimery, hereafter referred to as ‘the Accused’, is the President of the Corporate Accused, hereafter referred to as ‘the Company’, and operated this company as a commercial hazardous waste disposal enterprise for profit, in the Rural Municipality of Sherwood, in the Province of Saskatchewan. The Accused and his Company are jointly charged under The Environmental Protection and Management Act, 2002 , hereafter simply referred to as ‘the Act ’, enacted by the Province of Saskatchewan.

The alleged offence is failing to comply with an Order of the Minister issued January 11, 2011, such failure alleged to have occurred between March 31, 2011 and October 31, 2012. Throughout this ruling, the Accused and the Company when referred to together, will be called ‘the Parties’. [ 2 ] This ruling concerns two issues raised by the Defence in a brief filed electronically September 30, 2013. The first is the

question of whether this prosecution is one to which full mens rea would apply, which places a high burden on the Crown to prove intent, or whether it falls under the category of offences to which strict liability applies. The second issue raised is whether the Defence is entitled to mount a collateral challenge to the Order of the Minister, and go behind the Order to determine its validity and reasonableness. [ 3 ] In determining the issues raised, I will begin with the second issue, that is, whether the Order of the Minister may be the subject of a collateral challenge.

In doing so, it is necessary to briefly review the history of this proceeding. [ 4 ] This trial commenced with the evidence of Mr. Alvin Yun, an official of the Department of the Environment of the Province of Saskatchewan, who was familiar with Mr. Kimery and his company from many years of contact. Mr. Yun provided the history of this operation, so far as he was involved on behalf of the Ministry of the Environment. He indicated that the site had been in operation since 1996, and he had inspected it many times.

He described the site, and indicated that extensive remediation and removal of waste at the site was necessary, and a Minister’s Order that had been issued and served on the Parties was exhibited. [ 5 ] Mr. Yun had been responsible for drafting a Notice of Intention which was the basis of the Minister’s Order. The Company and the Accused did not respond to the Notice, and have taken no remedial action pursuant to the Order. This Order has been the subject of proceedings taken in the Court of Queen’s Bench, in the case of EnviroGun Ltd. v.

Saskatchewan (Minister of Environment), and EnviroGun Ltd. and Clint Kimery , and Province of Saskatchewan , 2011 SKQB 339 , 394 Sask. R. This was appealed to the Saskatchewan Court of Appeal, 2012 SKCA 73 , 399 Sask. R. 69 (C.A.) . That proceeding was an appeal as provided for in the Act . Relevant portions of the Act to this proceeding are as follows: .............................. 47

(1) Subject to subsection 14(6), the minister may issue an environmental protection order directed to a person requiring that person to take any measures that the minister considers necessary to protect and restore the environment if the minister is of the opinion that the person: (

a) before, on or after the coming into force of this Act has done or is doing anything or carrying out any activity that may cause, is causing or has caused an adverse effect; (

b) before, on or after the coming into force of this Act has contravened or is about to contravene this Act or the regulations, whether or not that person has been convicted of that contravention; (

c) is a person directly responsible for a discharge who has failed to: (

i) prepare a remedial action plan as required by

section 14; (ii) enter into an agreement as required by

section 14; or (iii) comply with the terms of a remedial action plan or agreement approved by the minister pursuant to

section 14; or (

d) is a person to whom

section 9 applies.

(2) The minister shall cause the measures mentioned in subsection (3) to be set out in the environmental protection order.

(3) For the purposes of subsection (1), the minister may, in an environmental protection order, require a person to whom the environmental protection order is directed to do all or any of the following: (

a) investigate the situation; (

b) monitor a substance; (

c) lessen or prevent further discharge of a substance; (

d) contain a substance; (

e) remove a substance; (

f) store a substance and monitor its storage; (

g) destroy or otherwise dispose of a substance; (

h) minimize the effects of a substance on the environment; (

i) remedy any adverse effect; (

j) restore the area affected by the discharge or presence of a substance and the environment to a condition satisfactory to the minister; (

k) maintain records on any matter relevant to:

(

i) the discharge or presence of a substance; or (ii) the measures specified in any order made pursuant to this section; (

l) report periodically to the minister, a project manager appointed pursuant to

section 50 or a person designated by the minister with respect to: (

i) any matter related to the discharge or presence of a substance; or (ii) the measures specified in any order made pursuant to this section; (

m) cease or suspend any activity for a period specified in the order or permanently; (

n) take any measure, in addition to or other than one described in clauses (

a) to (m), that the minister considers necessary to: (

i) facilitate compliance with any environmental protection order; or (ii) protect or restore the environment.

(4) If the minister issues an order directed to a person requiring that a substance be contained or stored, the minister may subsequently issue an environmental protection order to that person to take, with respect to the substance, any of the measures described in subsection (3).

(5) An environmental protection order may specify: (

a) the manner in which the measures are to be carried out and the method or procedures to be used in carrying out the measures required by the order; and (

b) the period within which any measure required by the order is to be commenced and the period within which the order or any portion of the order is to be complied with. 48 The minister shall cause an environmental protection order to be served on the person to whom the order is directed. 49

(1) The minister may amend, alter or replace an environmental protection order, in whole or in part, if: (

a) the person to whom the environmental protection order is issued fails to comply with the terms of the order; or (

b) the minister considers it appropriate to do so.

(2) Before the minister issues an environmental protection order, or takes any action pursuant to subsection (1), the minister shall give to the person to whom the order is intended to be issued, amended, altered or replaced: (

a) written notice of the minister’s intention to issue the order, or to amend, alter or replace the order, as the case may be, and the reasons for doing so; and (

b) an opportunity to make written representations to the minister, within 30 days after the written notice mentioned in clause (

a) is served, as to why the environmental protection order should not be issued, or why the order should not be amended, altered, or replaced.

(3) The minister is not required to give an oral hearing to any person to whom a notice has been given pursuant to subsection (2).

(4) After receiving the representations mentioned in clause (2)(b), the minister shall issue a written decision: (

a) confirming the environmental protection order; (

b) amending, altering or replacing the environmental protection order; or (

c) revoking the environmental protection order. ITALIC EMPHASIS ADDED

(5) The minister shall cause a decision made pursuant to this

section to be served on the person who made the representations. 51

(1) The minister may do all or any of the things mentioned in subsection (2) if a person to whom an environmental protection order is issued fails to comply with that order: (

a) within the period specified in that order; or (

b) if no period is stated in the order, within a reasonable period after the order was issued.

(2) In the circumstances mentioned in subsection (1), the minister may: (

a) carry out the order or enter into agreements to cause the order to be carried out; and (

b) recover the costs and expenses incurred pursuant to clause (

a) on behalf of the Crown in right of Saskatchewan as a debt due and

recoverable by the Crown from the person who failed to comply with the environmental protection order. ................. 54. ( 1) Any person aggrieved by an environmental protection order may appeal on a question of law to a judge of the Court of Queen's Bench within 30 days after the date of the order.

(2) The record of an appeal pursuant to subsection (1) consists of: (

a) the environmental protection order; (

b) the written representations made to the minister by the person named in the environmental protection order; (

c) the minister's decision pursuant to subsection 49(4); and (

d) the notice of motion commencing the appeal to the Court of Queen's Bench.

(3) A person with respect to whom a certificate has been entered as a judgment pursuant to

section 53 may appeal against the amount of the costs and expenses set out in the certificate to a judge of the Court of Queen's Bench within: (a) 30 days after the date of the filing of the certificate; or (

b) if the person has made representations to the minister pursuant to

section 53, within 30 days after the minister has issued a decision.

(4) On hearing an appeal pursuant to this section, the judge of the Court of Queen's Bench may issue an order: (

a) confirming the environmental protection order or the amount of costs and expenses set out in the certificate; (

b) amending or varying the environmental protection order or the amount of costs and expenses set out in the certificate; (

c) quashing the environmental protection order or the certificate; or (

d) doing any other thing that the judge considers appropriate.

(5) In an order issued pursuant to subsection (4), the judge of the Court of Queen's Bench may specify the period within which the order must be complied with. [ 6 ] The appeal taken to the Court of Queen’s Bench pursuant to

section 54 included a request for judicial review of the Order, which was not allowed, and the Order was confirmed as valid. The matter proceeded to the Court of Appeal, and Mr. Justice Vancise wrote the decision of the Court of Appeal, noting the history and issues as follows: II. Facts 6 The appellants operated the business of a hazardous waste transfer station on the subject property, located in the Rural Municipality of Sherwood (the "R.M."). The business involved the collection, containment, storage and treatment of hazardous wastes including oil, antifreeze and other automotive waste materials.

The appellant, EnviroGun Ltd., had initially been issued a permit under the E.M.P.A. in 1996. It had obtained a renewal of the approval of its operation on May 30, 2008, and at that time was requested by the Minister of Environment (the "Minister") to provide a reclamation and decommissioning plan. The appellants never provided the requested plan to the Minister. 7 As a result of failure to pay tax arrears over a period of many years, the R.M. took title to the subject property on August 27, 2009. A Notice to Vacate was served on the appellants, requiring them to vacate the property on or before January 30, 2010.

The appellants requested additional time and the R.M. agreed to extend the deadline to February 17, 2010. 8 The appellants vacated the property as required by the R.M., but did not advise the Minister and did not request or receive approval of the Minister as required by s. 17 of The Hazardous Substances and Waste Dangerous Goods Regulations (the " Regulations "). 9 By the letter dated October 21, 2010, both the appellants were provided with a Notice of Intent to issue an Environmental Protection Order. The appellants did not respond to the Notice of Intent within the 30-day period prescribed in clause 49(2)(

b) of the E.M.P.A. , but did respond after the 30-day period had expired by saying no more than that the EnviroGun Ltd. site had been in good condition when the R.M. took possession of it.

All of the issues to which the appellants refer in their outline of the facts contained in their factum were known to them at the time that the Notice of Intent was issued. 10 On January 11, 2011, the Environmental Protection Order ("EPO") was issued to the appellants by the Minister. 11 By Notice of Motion dated February 10, 2011, the appellants appealed the EPO pursuant to the statutory right of appeal provided in s. 54 of the E.M.P.A. and named the Province as the respondent. The R.M. was added as a party in the Court of Queen's Bench by consent of the appellants and the Minister of Justice.

The matter was heard on June 16, 2011 by Madam Justice J.E. McMurtry. Her written decision was issued on September 16, 2011. The appellants have appealed from that decision by Notice of Appeal October 11, 2011.

.................................... Mr. Justice Vancise stated that the appeal undertaken by the Parties was limited to questions of law, and the test was correctness ratherthan reasonableness. At paragraphs 22 to 33, Vancise J. discussed the operation of the Act, and the Order was again held to be valid. Noreview of underlying reasonableness was allowed. [7] This trial now follows for non-compliance with the Ministerial Order, and the Parties wish to mount a collateral challenge tothe Order as part of the trial.

Such a challenge would be similar to the review that was not permitted under the statutory appeal that hastaken place. It is to be noted in the history of these proceedings, that the opportunity to make reply to the Minister under section 49(2),highlighted above, was not made. If a reply to the Minister is made under the Act, the Minister is not obliged to permit a hearing, butsuch a hearing is not prohibited in the legislation.

It follows that a reply could include a request for such a hearing, with argument infavour of conducting one. [8] A collateral challenge to the validity of an Order of an administrative tribunal is permitted under some circumstances. Inarguing that this case is one where it should be allowed, the Defence has raised various factors to be considered, which may besummarised as follows: a. The Minister under the Act is allowed broad discretion in making Orders; b.

The right to have an Order appealed is limited to questions of law, or jurisdictional questions, as noted above, withoutrecourse to a hearing or review of issues behind the Order; c. The Act does not forbid a collateral challenge specifically; d. The record of the appeal did not include the Notice prior to the Order (which right of reply was not exercised); e. The fact the Order was made some time after the Parties vacated the premises raised questions of responsibility; and f.

Section 74 of the Act permits penal sanctions, large fines and potentially onerous obligations. [9] The question of collateral challenge is governed by a number of principles set out in case law, and in particular, in R. v.Consolidated Maybrun Mines Ltd., [S.C.R.] 706, referred to and affirmed in R. v. Al Klippert, (SCC), [1998] 1 S.C.R.737, which were environmental protection cases where an administrative scheme of enforcement was in place. The question of acollateral challenge of an Order made under that scheme was considered.

In both cases, the factors that had been identified previously todetermine the question of whether a collateral challenge would be possible were reviewed, and reaffirmed with some additional commentand analysis. Those factors concern legislative intent, having regard to the scheme of regulation and enforcement, and safeguards withinthat scheme.

Factors to be considered in assessing this intent were identified as follows: (1) the wording of the statute under the authorityof which the Order was issued; (2) the purpose of the legislation; (3) the existence of a right of appeal; (4) the kind of collateral attack inlight of the expertise or raison d'être of the administrative appeal tribunal; and (5) the penalty on a conviction for failing to comply withthe Order. [10] At paragraph 19 of the Maybrun case, Justice L’Heureux-Dube posed the question: The main issue concerns the appropriate forum for determining the validity of an administrative order.

More specifically, the appealraises two questions: 1. May persons charged with failing to comply with an order issued under The Environmental Protection Act collaterally attack thevalidity of the order by way of defence after failing to avail themselves of the appeal mechanisms provided by the Act? 2. If so, was the order issued against the appellants invalid in whole or in part? The legislation under consideration in the Maybrun case permitted a hearing upon application by the person affected by an Order, whichhad not been made. The Court in Maybrun observed at paragraph 52: In

summary, the question whether a penal court may determine the validity of an administrative order on a collateral basis depends onthe statute under which the order was made and must be answered in light of the legislature's intention as to the appropriate forum. Indoing this, it must be presumed that the legislature did not intend to deprive a person to whom an order is directed of an opportunity to

assert his or her rights. For this purpose, the five factors suggested by the Court of Appeal, as reformulated here, constitute importantclues for determining the legislature's intention as to the appropriate forum for raising the validity of an administrative order. [12] The Court reviewed prior case law in detail, and went on to observe that the legislation in question had a preventative, regulatoryand remedial aspect, all of which are also part of the Saskatchewan legislation.

The power to make orders was exercised under thelegislation in Maybrun by a ‘Director’ who could make orders, rather than the Minister, as is the case with theSaskatchewan legislation, and the Ontario legislation provided for an appeal of the Order, all of which the Court considered a completeprocedure. In conclusion, at paragraph 62, Madame Justice L’Heureux-Dube stated: The legislature set up a specialized tribunal to hear questions relating to the environment and to take the appropriate action necessary toprevent it from being contaminated.

I do not see how a penal court could be permitted to answer such questions in lieu of theEnvironmental Appeal Board, which was established precisely for this purpose, without undermining the scheme set up by the Act. [13] In the present case under the Saskatchewan Act, there is a process that includes a notice of an order contemplated to be given to aparty affected, and that party may make written representations to the Minister who is the issuing authority.

Although there is noautomatic right to a hearing if conflicting information is presented that would challenge the basis of any such Order, it is not proscribed,and may be requested. No action was taken by the Parties to challenge the proposed Order, for which notice had been given. The factthat the Parties took no action following Notice of the Order is significant. They cannot state that they did not have any avenue tochallenge the Order on its merits.

In other aspects, the legislative purpose and the scheme of the Saskatchewan Act is consistent with thelegislation relating to the environment considered by the Supreme Court. [14] The Defence has cited a number of cases that concern the Farm Land Security Board whose orders have been held bySaskatchewan courts to be subject to collateral challenge. In Farm Land Security Board v. Anderson, 1999 SJQB 217 ,McLelland J. stated: The legislature clearly intended that this Court was the appropriate forum to question the validity of an order of the Board.

Furthermore,given the express provision of the Act as outlined above, it is not unreasonable for a person against whom an order has been made, in aneffort to save on his or her legal costs, to await the application by the Board under s. 94 as opposed to initiating an appeal under s. 97.The Court is provided with both an enforcement hat and an appeal hat. I see no reason why the Court cannot wear both hats at the sametime.

In my opinion, the specific provisions of the legislation governing that Board make review with full consideration of the issues behind anOrder appropriate. [15] With respect to the Saskatchewan Act that governs environmental protection, for the public policy considerations set out in thetwo Supreme Court cases cited, I conclude that a collateral challenge to the basis and justification of the Order is not available, andwould be contrary to the purpose and operation of the Act. [16] The remaining issue is the question of whether a prosecution under this legislation is to be considered as requiring the proof ofspecific intent, or mens rea, or whether it is one of strict liability.

The Crown has cited the case of R. v. Hanna, [2010] O.J. No. 5075(Ont. Ct. J.) which was an appeal following a trial before a Justice of the Peace on a charge of breaching an Order made followingconviction of an earlier offence under The Environmental Protection Act of Ontario. At paragraph 290 of a 312 page judgment,Shousterman J.P. concluded after reviewing the classic case of R. v. Sault Ste.

Marie (City) (1978), (SCC), 40 C.C.C.(2d) 353 (S.C.C.), and considering the issues of administrative schemes of enforcement, including environmental regulation, that the casewas one of strict liability. [17] The principles applicable in Sault Ste. Marie, supra, apply to many forms of regulated activity where proof of specific intentwould be difficult or impossible, and the need for regulation of certain activity is not merely desirable, but essential for the public well- being.

Examples of this abound, and include, but are not limited to, the operation of motor vehicles, and zoning and land-use,public health and protection of the environment. The fact that serious penalties may attach to transgression of such enactmentshas not been held to be grounds for requiring full mens rea, although the existence of penal sanctions is a factor to consider. The factthat such sanctions do exist, however, is also indicative of the serious public concerns that attach to some activities, and that fact does notmake enforcement of many such activities feasible other than by administrative schemes.

[18] The Defence has cited a number of cases which deal with the mental proof required for proceedings of contempt, or that involve the breach of a specific court order, that may include various degrees of culpability, including egregious defiance. The considerations in these cases are unique to each case. They are not part of a general regulatory scheme that is applicable to related, but diverse, complex activities that have a high and broad public interest.

They are fundamentally different in nature to cases that involve regulation of large- scale matters pertaining to general public health and safety, though they may certainly pertain to important public issues. That the breach of a specific court order should be considered a matter of specific intent, having regard to the special circumstances that apply in all such orders, is both reasonable and necessary.

By contrast, the application of specific intent as a means of enforcing activity that is widespread, or nearly ubiquitous and complex, would render regulation of standards in important areas pertaining to the public welfare, impossible. [19] It must also be kept in mind that strict liability is not absolute liability, and a person charged is not left without any defences.

An individual has an ability, unique to the circumstances, to demonstrate that reasonable and appropriate care and diligence was observed in their actions that constitute compliance. [20] Accordingly, I conclude that proceedings under the Act come within the category of cases to which strict liability must apply. Dated at the City of Regina, this 25 th day of November, 2013. ________________________ B.D. Henning, J