R. v. Teck Metals Ltd. Date:, 2016 BCPC 479

Citation: R. v. Teck Metals Ltd. Date: 20160229 2016 BCPC 479 File Nos: 21347-1, 21347-2-C, 21422-1 Registry: Rossland IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TECK METALS LTD. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.G. BROWN Counsel for the Crown: J.A. MacAulay and T.C. Gerhart Counsel for the Defendant: C.J. Deynaka Place of Hearing: Rossland , B.C. Date of Judgment: February 29, 2016

[ 1 ] THE COURT: This is a sentencing following guilty pleas on Counts 1, 2, and 3 of Information 21347-C-2, that Teck Metals Ltd. did, at or near Trail, B.C., unlawfully deposit effluent into the Columbia River, being water frequented by fish, between July 15, 2014, and February 5, 2015, and from Metallurgical Plant Outfall II sewer plant, Count 1; between October 22, 2014, and November 18, 2014; from Metallurgical Plant Outfall III, Count 2; between November 28, 2013, and December 9, 2014, from the Fertilizer Plant Outfall IV sewage system, Count 3.

Exhibit 1 was filed, being an agreed statement of facts, and Exhibit 2, being a synopsis of those facts. [ 2 ] In addition, this is a sentencing following guilty pleas to Counts 4 and 5 on Information 21422, that Teck Metals Ltd., at or near Trail, B.C., did fail to comply with a permit, being the daily limit to introduce waste, namely, zinc, in the Columbia River, Count 4; and that Teck Metals Ltd. did introduce a caustic waste into the environment, Count 5.

Exhibit 1 was filed, being the agreed statement of facts and Exhibit 2, being a synopsis of those facts. [ 3 ] With respect to Information 21347-C-2, there are a total of 11 incidents, 10 of which occurred during the time periods referred to in the three-count Information. Each count recites a time period for incidents at a particular outfall. The outfalls are at the industrial site of the accused where effluent enters the Columbia River.

I will recite the relevant agreed facts by moving to events by order of date, the earliest date being the first event. [ 4 ] The first incident occurred on November 28, 2013, at Outfall IV when a contractor poured cement to cap two abandoned lines at a manhole by introducing a lean mix of concrete. The concrete was poured around the perimeter of the manhole and entered a hole in the casing allowing the cement to travel to Outfall IV. At about 0247 hours, a PH alarm at Outfall IV was triggered indicating the lean mix travelled into the river.

The event lasted about 30 minutes and the flow rate during the period was approximately 359,000 litres. [ 5 ] Teck determined that the lean mix concrete spill volume was 150 to 450 litres. The effluent discharge was at or about PH 10. A sample by Teck indicated a nitrogen/ammonia concentration of 1.6 milligrams per litre with a PH of 10.

The concentration of ammonia acutely lethal to fish is .041 to 0.46 milligrams per litre at PH 10. [ 6 ] The corrective action of Teck included awareness training for employees and contractors and improving procedures when working with concrete such as a requirement to identify catch basins, sewers, and drains, the development of an environment pretest checklist, assessment of an environment risk, and a protection system if a risk exists. [ 7 ] The second incident involved a pump failure on January 15, 2014.

The operator activated a backup pump which created significant pressure resulting in a check valve failure allowing ammonia solution to flow past that valve into the condenser tanks. The outflow of water from the condenser tanks had elevated ammonia thereby increasing the ammonia concentrations in Outfall IV effluent. The PH was in alarm from about 10:40 p.m. through 11:21 and, during that time, the PH peaked at 9.31 at 11:01 p.m. [ 8 ] Samples taken between 10:43 and 11:13 had nitrogen and ammonia concentrations of 20, 19, 24, and 9.2 milligrams per litre at PH 9.1, 9.2, 9.4, and 8.8, respectively.

The acutely lethal concentration of ammonia to fish for each respective sample was 2.9 to 4.7 milligrams at their respective PH.

The volume of flow at the acutely lethal level between 10:40 and 11:13 was 489,600 litres. [ 9 ] The corrective action by Teck included the installation of additional check valves to prevent process solution from entering water lines, installing a backflow preventer upstream of the fail check valve, a preventative maintenance protocol, eliminating the use of the particular pump that created too much pressure, and weekly preventative maintenance. [ 10 ] The third incident occurred on July 15, 2014.

This incident was caused by a power outage resulting in the shutdown of the dechlorination system for about 50 minutes. The chlorine concentration in the effluent reached as high as 0.72 milligrams per litre. Sodium bisulfite, which is used to control chlorine levels, was interrupted due to the power outage thereby impairing the ability to maintain a target chlorine concentration of 0.2 milligrams per litre. [ 11 ] Chlorine concentrations greater than .03 milligrams per litre are acutely lethal and deleterious to fish.

On July 15, 2014, between 7:01 a.m. and 7:39 a.m., the chlorine concentrations were above 0.6 milligrams per litre.

Approximately 3,900,000 litres of effluent discharged from Number II Outfall into the Columbia River on July 15, 2014, and that level was acutely lethal and deleterious to fish. [ 12 ] Teck undertook corrective measures that included installing a permanent uninterrupted power supply to ensure the uninterrupted introduction of sodium bisulfite to control chlorine levels, adding an inline spare-line pump, and improving alarming and diagnostics. [ 13 ] The fourth incident occurred on October 22nd, 2014. The event lasted from 1:45 p.m. until 11:00 p.m. at Number II Outfall.

The effluent at that location had elevated levels of cadmium which were lethal and deleterious to fish for at least nine hours and 15 minutes. During that time, the volume of effluent entering the Columbia River was approximately $26,085,000 litres.

Precipitation fell on that day for approximately 16 to 18 hours. [ 14 ] It was determined that the contributing cause was spillage of iron residue from trucks using regular trucking routes entering three tributaries that lead to the second outfall and into the Columbia River. [ 15 ] The corrective and preventive actions of Teck included improving communication to employees to ensure an awareness of spillage risk from trucking of iron in the area, reviewing trucking routes to reduce iron and cadmium near entry points of the Number II Outfall, identifying high-risk material that could release and dissolve cadmium during the storm water events, standardizing procedures and creating control actions for these materials to reduce risk. [ 16 ] The fifth incident occurred on October 26 and 27, 2014, at the third outfall.

The event lasted approximately nine hours and 50 minutes over the two days. Total chlorine concentrations above 0.3 milligrams per litre are acutely lethal and deleterious to fish. On October 26, 2014, chlorine measurements ranged between 0.31 milligrams per litre to 0.78 milligrams per litre. On October 27, 2014,

chlorine measurements ranged from .036 milligrams per litre to 0.49 milligrams per litre. The volume of discharge into the Columbia River during this event was approximately 24,898,000 litres. [ 17 ] The source of the measured chlorine was from normal chlorination of cooling water. Teck concluded that there was an inverse relationship between effluent chlorine concentration at Outfall Number III and the effluent treatment plant flowrate.

The chlorine concentrations increase when the flows decrease. [ 18 ] The corrective action taken by Teck, which is later described following the November 18th incident, involved the creation of a formal chlorine monitoring program for the third outfall. [ 19 ] The sixth incident occurred on November 17 and 18, 2014. Teck reported another chlorine incident. The event lasted approximately 18 hours and 30 minutes. As stated earlier, total chlorine concentrations above 0.3 milligrams per litre are considered acutely lethal and deleterious to fish.

The effluent treatment plant was not discharging to Outfall Number III and that was determined to likely contribute to high chlorine levels in the effluent. Approximately 38,900,000 litres of effluent was discharged into the Columbia River when the effluent treatment plant had a zero flow to the Number III Outfall. [ 20 ] The only reading of total chlorine was 0.70 milligrams per litre, being a level acutely lethal and deleterious to fish.

However, the established relationship between low effluent treatment plant flow and increased chlorine levels in the effluent demonstrates that the effluent discharged during this time into the Columbia River would have been at levels greater than 0.3 milligrams per litre and therefore deleterious and lethal to fish. [ 21 ] On November 17, 2014, there was a process upset as a result of Reactor Tank Number 1 PH probe malfunctioning.

The effluent treatment shutdown occurred at about 3:30 p.m. on November 17, 2014, resulting in no flow from the effluent plant to the third outfall until 10:00 a.m. on November 18, 2014. [ 22 ] The requirement to monitor for chlorine during an effluent plant stoppage had not been fully incorporated into Teck procedures. Teck, as a result of the incidents at Number III Outfall, proceeded to install a sodium bisulfite dechlorination system similar to the system at the Number II Outfall.

The third outfall system is activated when effluent treatment reaches a low-flow condition resulting in the introduction of sodium bisulfite to reduce chlorine levels. [ 23 ] The seventh incident occurred on December 6, 2014. The event lasted approximately eight hours between 0500 to 1300 hours. The acutely lethal level of total cadmium to fish is 0.004 milligrams per litre or 6.7 UG per litre. Total cadmium levels of this effluent was 0.012 milligrams per litre or 12 UG per litre.

The volume of deleterious effluent that was discharged was 27,463,000 litres. [ 24 ] Teck identified the cause as due to the metal concentrations of a tributary which flows to the second outfall during a time when heavy precipitation have been observed.

Leading to the tributary are road drains. [ 25 ] The response by Teck was to assess the process, materials, and solids containing cadmium that could enter the second outfall, and the potential opportunities to prevent that material from entering identified entry points, and reviewing design options. [ 26 ] The eighth incident occurred on December 9, 2014, at the Number IV Outfall. This incident lasted for approximately 13 minutes between 11:14 a.m. and 11:27 a.m. It occurred at the Trail fertilizer plant during planned line-wash maintenance.

The conductivity probe that controls the safety instrumented function in the electrolyte line was not taken out of the isolation resulting in a mixture of water and spent zinc, electrolyte solution being discharged to the granular ammonia sulphate plant and then to Outfall Number IV into the Columbia River. [ 27 ] Total zinc concentrations above 0.29 milligrams per litre are acutely lethal to fish. Total zinc concentrations peaked at 19.3 milligrams per litre. PH values at or below PH 4.16 are acutely lethal to fish and PH levels lowers than 3.0 are rapidly lethal to salmonid fish species.

The PH levels were below 4.0 during the incident and went as low as 2.9. The effluent discharge during this event was approximately 275,000 litres. [ 28 ] The cause of this event was a lack of written procedure. Teck has developed procedures to provide operators with instruction on how to perform a wash of the electrolyte line, which includes an explanation of how SIF valve functions during the cleaning procedure and the requirement to take the conductivity probe out of isolation.

Teck provided this electrolyte line-wash procedure to all granular ammonia sulphite plant operators and improved the labelling of the electrolyte line to improve understanding of the system. In addition, if a high conductivity alarm occurs in the granular ammonia sulphate main tributary, the SIV valve in the electrolyte line will automatically close and divert solution to Number 10 Storage. [ 29 ] The ninth incident occurred on January 20, 2015. An effluent sample for the second outfall was sent to Maxxam Analytics for testing. Their finding was 100 percent fish mortality at 48 hours.

A pass requires that fish mortality must not exceed 50 percent. As a result of the 100 percent mortality results, the effluent discharge from the second outfall on January 20, 2015, was acutely lethal and deleterious to fish. The elevated concentrations of dissolved cadmium and zinc in the effluent at the second outfall was determined to be the most probable cause of the acute toxicity to the fish. [ 30 ] Fire-hydrant-flushing activity appeared to be the cause of these elevated levels of cadmium and zine.

The response by Teck included an immediate change of hydrant-flushing procedures such that in future flushing events will discharge into either the effluent treatment plant or a portable water collection tank. Teck has also increased storm water catch basin vactoring and cleaning to monthly from twice yearly. In addition, Teck is continuing to improve the onsite truck haulage routes. [ 31 ] The tenth incident occurred on February 5, 2015. This was the fourth cadmium incident and it also involved zinc. The event lasted about 50 minutes.

As stated earlier, the acutely lethal level of total cadmium to fish is 6.7 UG per litre and the total cadmium concentrations in this event were between 17 and 24 UG per litre. High dissolved levels of zinc were also detected at concentrations that would contribute to the overall acute lethality and deleteriousness to fish. The volume of effluent discharged in this event was approximately 907,000 litres.

[ 32 ] There was heavy rainfall resulting in total flow in tributaries leading to the second outfall into the Columbia River. Teck's response was to continue to renew options to reduce the storm water impact of tributaries leading to the second outfall, rerouting catch basins in area of heavy truck traffic for treatment process or the effluent treatment plant, and locating storage of snow from hauling routes and process areas to locations that drain to the effluent treatment plant. [ 33 ] A further incident occurred on November 12, 2013, being a time prior to the offence dates in the Information.

This event lasted between 15 minutes to one hour and 40 minutes. A sample of effluent collected that day was tested and resulted in a 100 percent mortality rate to the fish exposed to that effluent sample. The acutely lethal level of total copper is 30 UG per litre and a toxicity sample of the effluent indicated concentrations of 210 UG per litre total copper.

The volume of potentially acutely lethal effluent discharge during this event was approximately 1,084,000 to 7,405,000 litres. [ 34 ] The likely cause of this event was copper storage at a sewer location which flowed into the second outfall and into the Columbia River. Copper was stored in bags which were damaged and copper spilled on the ground near a drain that leads to the sewer.

Teck's response was to focus on risk management of material around entry points to outfalls, to provide feedback, and update control plans for high-risk aspects, and reduce material handling, and reroute traffic around entry points to outfalls. [ 35 ] This is also a sentencing following guilty pleas to Counts 4 and 5 on Information 21422. The incident referred to in Count 4 of Information 21422 occurred on December 22nd, 2013. The sulphide leach plant has a dewatering cone designed to separate solid and liquids in the zinc slurry.

The slurry enters the top of the cone and zinc dust, being heavier, sinks to the bottom. [ 36 ] On December 22nd, a nearby filter through which water normally passes to filter zinc was being bypassed to permit regular cleaning of the filter. At the time the bypass was in operation, the dewatering cone was plugged resulting in an overflow out of the top of the cone. The operator had left the control room for about an hour and a half and, therefore, no one was present to respond to the plugged cone and the continuous overflow.

The overflow containing zinc travelled over the top of the plugged cone through a turbidity box via an open valve and into the second outfall and then into the Columbia River. [ 37 ] It was determined that between 5:00 a.m. on December 22, 2013, and 5:00 a.m. on December 23, 2013, 251 kilograms of zinc had been discharged into the Columbia River from the second outfall.

Under a permit, Teck was permitted to discharge 175 kilograms of zinc per day at the second outfall into the river. [ 38 ] The corrective action of Teck was to ensure that when the sand filter is being cleaned, zinc flurry is no longer directed into the turbidity box and then to the second outfall. Instead, the water-zinc slurry is recycled into the plant as processed water.

The conclusion reached by the environmental impact assessment and by the Ministry of Environment is that any chronic or long-term impact from the discharge of zinc dust is unlikely due to the high dilution capacity of the Columbia River. [ 39 ] The incident referred to in Count 5 of Information 21422 occurred on January 28, 2014. A caustic holding tank feeds caustic soda to the smelter waste water to control PH levels prior to discharge of waste water or effluent into the Columbia River.

There is a drainpipe with a valve off a secondary containment area that opens into what was believed to be a flue tunnel that discharges to the effluent treatment plant. [ 40 ] At some unknown time, this drainpipe was altered so that it was connected to the Regional District of Kootenay Boundary's sewage treatment plant. Caustic solution leaked into the secondary containment area.

The containment area was drained for safety reasons by opening the aforesaid valve believing the caustic soda would drain into the Trail operations treatment plant, but the drain, in fact, led, as stated, to the Regional District treatment plant and into the Columbia River. An estimated 12,000 to 25,000 litres of solution having a PH of 13.3 or higher was drained from the secondary containment area to the Kootenay Boundary's sewage plant and into the river. [ 41 ] The corrective action of Teck was to disconnect the drainpipe from the secondary containment from the sanitary sewage line.

The environmental impact assessment and Ministry concluded any chronic or long-term impact from the caustic discharge is unlikely due to the high dilution of the Columbia River. [ 42 ] Teck Metals is a wholly-owned subsidiary of Teck Resources Limited. The Trail metallurgical operations in Teck's 2014 Annual Report states a gross profit before depreciation of $142 million. The 2013 gross profit before depreciation was $112 million.

For the first three quarters of 2015, Trail operations reported a gross profit before depreciation of $146 million. [ 43 ] At all material times, Teck Metals Ltd., Teck, owned and operated a lead/zinc smelter and fertilizer complex in Trail, B.C. Teck employed approximately 1,500 people at the material time. The Trail metallurgical operations at Trail has three outfalls into the Columbia River. [ 44 ] The Columbia River has 21 species of fish. Thirteen of those species are sport fish. The flow of the Columbia River varies from one million to six million litres per second.

There were no dead or dying fish in the Columbia River as a result of any of the aforesaid incidents. [ 45 ] Teck was charged under the Environmental Management Act for a spill on May 28, 2008. Teck pled guilty and was sentenced on December 2, 2009, to a global penalty in the amount of $115,000. [ 46 ] Teck was investigated for a leachate spill that occurred on September 13, 2010, and a mercury spill that occurred on October 7, 2010.

These two spills were resolved by restorative justice whereby Teck accepted responsibility and paid the amount of $120,000 for the first incident and $205,000 for the second incident with the funds to be utilized for various environmental and community enhancement projects. [ 47 ] Teck pled guilty on November 4th, 2013, to one count under s. 36(3) of the Fisheries Act and one count for failing to report an incident under the Spill Reporting Regulations. Teck was sentenced to pay total penalties of $210,000.

[ 48 ] Teck has also received approximately seven warning letters from Environment Canada between 2011 and 2014 and approximately four warning letters from the Ministry of Environment between 2010 and 2015. [ 49 ] Crown counsel for the Ministry of Justice, counsel for the Public Prosecution Service of Canada, and counsel for Teck Metals Ltd. have made a joint submission on sentencing. [ 50 ] On Information 21422, the joint submission is for a fine of $5,000 per count and a direction that Teck pay $195,000 per count totalling $390,000 to the Habitat Conservation Trust Foundation. [ 51 ] With respect to Information 21347-C-2, the joint submission is a global sentence of a fine in the amount of $3 million with the recommendation that the fine be credited to the Environmental Damages Fund for use in the conservation and protection of fish, fish habitat, or the restoration of fish habitat in the Kootenay River or Columbia River watersheds with a preference for projects in the lower Columbia region. [ 52 ] Section 40(2)(

b) of the Fisheries Act indicates that, on

summary conviction, the fine for a second or subsequent offence is not less than $200,000 and not more than $8 million. Section 120(3) of the Environmental Management Act indicates that sentence for depositing a caustic waste is a fine not exceeding $1 million or imprisonment up to six months or both.

Section 120(7) of the Environmental Management Act states that a person who fails to comply with a permit is liable to a penalty not exceeding $300,000 or imprisonment for no more than six months or both. [ 53 ] The Fisheries Act and the Environmental Management Act contain provisions which permit creative sentencing of the kind that is proposed in the joint sentence. The issue is the appropriate disposition in all the circumstances. I am not bound to a joint submission, but I must give them serious consideration and not depart from them unless I consider them to be wholly inappropriate. [ 54 ] Mr.

Gerhart, counsel for the Department of Public Prosecutions, reviewed with the court the facts and disposition of convictions and sentencing of Teck Comenco Metals Ltd. in 2009 and 2013. As in this case, Teck officials were present. Teck had taken responsibility for the offences by policy committed to reporting spills and committed to employee training. Judge Mrozinski reviewed sentencing principles and imposed a sentence jointly submitted by counsel. [ 55 ] The Alberta Court of Appeal in R. v.

Terroco Industries Limited , 2005 ABCA 141 , Terroco, identifies the factors to consider when dealing with sentencing for environmental offences. Terroco was adopted by our Court of Appeal in R. v. Brown , 2010 BCCA 225 . Culpability is the dominate factor. The task is to identify the culpability of Teck within the range which has at one end recklessness and the other where the defences of due diligence is a near miss.

This is a compelling factor because conduct that amounts to recklessness demands the most severe of penalties. [ 56 ] The myriad of circumstances that comprise each count were described by counsel in this sentencing as falling between the middle and low end of culpability. Certainly, the events comprising each count could not be described as intentional. Further, events could not be viewed as near misses.

I accept the offences involve acts that fall between middle to low end of culpability. [ 57 ] In Terroco at paragraph 38, the court states a record can be an aggravating factor and the persistence in conduct following warnings by authorities is an aggravating factor. Teck pled guilty to an Environmental Management Act offence in May 2008, was fined $115,000. In November 2013, Teck pled guilty to Fisheries Act offences and was fined $210,000.

Teck received approximately seven warning letters from the Ministry of Environment between 2010 and 2015 and four warning letters from Environment Canada between 2011 and 2014. In addition, restorative justice was used in lieu of prosecutions in relation to a spill in September 2010 and a spill in October 2010. Teck is clearly no stranger to the courts or government environmental agencies. [ 58 ] The prior recent convictions, the incidents involving resolve by restorative justice, and the numerous warning letters are seriously aggravating factors.

In attempting to impose an appropriate sentence, this court cannot ignore the fact that the first incident included in the courts on Information 21347-2-C was approximately three weeks after being sentenced by Judge Mrozinski for a Fisheries Act offence . [ 59 ] Counsel submit that Teck should be credited with entering an early plea, notwithstanding the lengthy period between the offence and sworn Information dates and the actual date of entry of the guilty plea, because of the complexity of the investigations and the ongoing exchanges between defence and Crown to resolve this matter by guilty pleas.

The cost and time for prosecution of these matters would be significant if it proceeded to trial. [ 60 ] Based on the submissions of counsel, I find that Teck has accepted full responsibility and should be given credit for entering an early guilty plea. It is further mitigating that Teck immediately reported the events, cooperated fully to identify the cause and extent of each incident, and more importantly, immediately addressed each incident by taking real remedial action to minimize the likelihood of a reoccurrence.

Employee training and engineering is clearly an ongoing process at Teck and I am satisfied that they are genuine and effective responses, albeit the number of offences and the proximity to prior convictions may suggest otherwise. [ 61 ] The offences must be considered in context and, in particular, the 1,500 employed at the site must be continuously trained and supervised and a momentary lapse in the attentiveness and actions of one of those employees or site contractors sets in motion events such as those described in the circumstances of each count and Teck is held responsible for those consequences. [ 62 ] Teck has future plans to eliminate the likelihood of a reoccurrence of the offences.

In this regard, counsel for Teck described in detail the effluent management improvement conceptual plan found at tab D of Exhibit 1. Timelines are identified for certain and likely engineering and construction projects to manage and treat effluent to minimize environmental risks. The expenditure for certain or likely projects is approximately $8.1 million.

Of that, $7.5 million has been designated for the construction of a retention reservoir at the fourth outfall at the Teck site before effluent enters the Columbia River. [ 63 ] The future plans of Teck, which were presented to this court in the presence of a number of corporate officers of Teck, is a potent indicator of a significant degree of genuine remorse. These future plans allow this court to find acceptance of responsibility and a

real attempt to eliminate the risk of discharging effluent lethal to fish. It is a massive undertaking at a cost of millions of dollars for the purpose of protecting the environment as opposed to those millions of dollars being used as corporate profit. [ 64 ] I now turn to the matter of damage or harm.

Terroco at paragraph 45 states that: The existence, potential, duration and degree of harm are factors to be fully considered in sentencing for environmental offences. [ 65 ] In this case, the Crown has not established actual harm, but that does not mitigate the fact that the effluent that entered the Columbia River included substances at levels acutely lethal to fish. Counsel for Teck referred to the massive flow of the Columbia River resulting in a rapid dilution of lethal levels. Further, counsel emphasized there is no evidence of actual harm.

However, it is clear from paragraph 49 of the Terroco case that Teck should not benefit from the intervention of luck. Judge Mrozinski described the lack of evidence of actual harm when sentencing Teck for their earlier environmental offences as a neutral factor. [ 66 ] A further factor to consider is deterrence.

Terroco at paragraph 53 states that the penalty imposed for breaches of environmental protection statutes should send a message of general and specific deterrence. [ 67 ] Counsel for the Department of Public Prosecution noted that the current federal legislation involves amendments to the offence provisions which dramatically increase the minimum and maximum financial limits for offences of this kind.

Counsel states that I must impose a sentence that reflects the intention of Parliament for the courts to increase the financial sanctions for this kind of offending conduct. [ 68 ] When considering specific deterrence, I must also factor in the degree of remorse. I must also fix a sentence which will deter others in industry who may risk offending. The penalty imposed must also address the pattern of behaviour involving repeated violations of environmental protection legislation.

The sentence must not amount to a licence cost of doing business by a very large and highly profitable industrial company. [ 69 ] Counsel for the Department of Justice referred the court to the case of Her Majesty the Queen v. Shamrock Chemicals Limited and Samuel John Shirley , being the decision of Judge Phillips on February 13, 1989. [ 70 ] At lines 19 to 31 on page 3, Judge Phillips referred to: . . . the true measure of effectiveness of prosecutions for . . . violation[s] of environmental legislation, is not in laying charges or obtaining a conviction, but in the result of a conviction.

The ultimate goal is to stop the offending behaviour, to clean up, mitigate or repair any damage that has been done to the environment and to prevent a recurrence of the offence. [ 71 ] The court continued and stated that the prosecutions also "reinforce societal values" and that "they provide a dramatic and visible demonstration of the government's will to protect certain values". [ 72 ] Judge Phillips continued at lines 22 to 29 on page 4 and stated: Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interests, should also be treated seriously.

Each actor must [also] bear his share of the responsibility for any ultimate harm if there is to be an effective deterrent to an eventual destruction which will harm human interests. [ 73 ] At lines 7 to 10 on page 6, Judge Phillips stated: The basic rule in environmental cases, as in other cases, is that without being harsh, the fine must be substantial enough to warn others that the offences will not be tolerated. It must not appear to be a mere licencing fee for illegal activity. [ 74 ] Counsel referred the court to other cases to consider.

I do not propose to deal with each of those cases in detail, but I will make reference to some of them. R. v. Cusano Contracting Inc. , 2011 BCPC 348 , involved a spill of oil from a pipeline and the consequent flow of oil into the Burrard inlet. In that case, counsel, as in this case, presented a joint submission on sentence. The court noted that a sentencing judge should place significant weight on the agreement of experienced counsel who have carefully considered the circumstances giving rise to the charges, but noted that the ultimate decision is that of the court. [ 75 ] R. v.

Bloom Lake General Partner Limited , December 19, 2014, Montreal Registry Number 500-73-004216-145, was a prosecution out of Quebec involving Fisheries Act charges resulting from discharges of effluent into fish-bearing waters over four years. There were a total of 100 offences committed, but grouped together to total 46 counts. The joint submission, being the sentence imposed by the court, was a fine totalling $7.5 million. The corporate accused did not have a record. [ 76 ] In R. v. Syncrude Canada , October 22, 2010, St.

Albert Registry, counsel presented to the court a curative settlement proposal in a joint submission that represented a cooperative effort to arrive at a fit and proper sentence. In that case, Syncrude did not have a record of prior convictions. The court accepted and imposed as a sentence the joint submission of counsel. [ 77 ] In R. v.

Catalyst Paper Corporation, Catalyst Paper General Partnership, and Catalyst Pulp Operations Limited , December 8, 2015, Powell River Registry 15468, the court dealt with a guilty plea to three counts relating to a failure to properly deal with effluent discharge in the Malaspina Strait and a failure to take proper samples of effluent pursuant to the Regulations. The accused did not have a prior record. [ 78 ] On the issue of harm, the court stated at paragraph 10 that albeit there was no harm, there was certainly the potential for significant harm.

The court noted that the lack of actual harm is a neutral factor. The fines totalled $15,000 and an order was made pursuant to s. 40(2) of the Fisheries Act that the company pay $185,000 to the Environmental Damages Fund. [ 79 ] To summarize, Teck has pled guilty to three counts on Information 21347-C-2 involving 10 incidences occurring between

November 28, 2013, and February 5, 2015, being offences contrary to the Fisheries Act of depositing a deleterious substance with lethal levels of a substance into the Columbia River. They have also admitted to a further incident of the same kind, November 12, 2013.

In addition, Teck has pled guilty to two counts on Information 21422, being offences contrary to the Environmental Management Act , namely, introducing zinc in an amount which exceeded permit levels and caustic waste into the Columbia River. [ 80 ] The aggravating circumstances include the numerous violations over a 15-month period, the existence of a recent record for similar convictions, and the existence of many warnings in the use of restorative justice to address previous violations. [ 81 ] The mitigating circumstances include the finding that the degree of negligence or culpability is in the middle to low range and that Teck has accepted full responsibility for their conduct which they reported immediately.

Teck cooperated with the environmental investigations to determine the cause of violations and took immediate corrective steps. Further, I have found that Teck has a genuine remorse for their actions.

The future plan of Teck to spend millions on effluent management over an identified period indicates a genuine commitment to protect the environment in the future. [ 82 ] In these circumstances, the joint submission, which is the result of extensive negotiations and a cooperative effort by experienced counsel, is a fit and proper sentence and I am satisfied properly addresses the principles of sentencing in environmental cases. [ 83 ] On Information 21347-C-2, being a three-count Information, I impose a fine of $1 million per count for a total of $3 million.

This court further recommends, pursuant to s. 40(7) of the Fisheries Act , that all of the fine credited to the Environmental Damages Fund be paid to a person or organization for the purposes of the conservation and protection of fish and fish habitat or the restoration of fish habitats in the Kootenay River or Columbia River watersheds with a preference for projects in the Lower Columbia Region, being south from Nelson, British Columbia. [ 84 ] With respect to Counts 4 and 5 on Information 21422, I impose a fine of $5,000 per count for a total fine of $10,000. [ 85 ] In addition, I order Teck to pay a victim surcharge in the amount of 15 percent of the fine.

Pursuant to s. 127(1)(

e) of the Environmental Management Act , I direct that Teck Metals pay $195,000 per count for a total of $390,000 to the Habitat Conservation Trust Foundation, such funds to be used for the purpose of conservation or enhancement of biological diversity of fish, fish habitat, or wildlife habitat in the Kootenay River or Columbia River watersheds with a preference for projects in the Lower Columbia Region, being the region south from Nelson, British Columbia. [ 86 ] Teck Metals Ltd. shall have 30 days to pay the fines and funds ordered. [ 87 ] That leaves outstanding on 21422, Counts 1, 2, 3, 6, 7.

Is there an application? [ 88 ] MR. MACAULAY: Yes, Your Honour, it is Jim MacAulay for the Provincial Crown, the Crown directs a stay of proceedings with respect to Counts 1 through 3 and Count 6 and Count 7 on Information 21422. [ 89 ] THE COURT: All right, the clerk will record a stay. Thank you. I did receive a formal order from you, counsel. [ 90 ] MR. MACAULAY: Yes, Your Honour, I can have the numbers typed in and I will provide a copy to Mr. Lonergan for his approval as to form and then I will send it to Your Honour for Your Honour's signature. [ 91 ] THE COURT: Oh, that is fine.

Is there anything further, counsel? [ 92 ] MR. GERHART: Your Honour, Todd Gerhart here, I just wanted to confirm that a stay has been entered, my notes [indiscernible], on 21347-1. [ 93 ] THE COURT: All right, if it has not, the clerk has your direction to enter a stay. [ 94 ] MR. GERHART: Very good, thank you, Your Honour. [ 95 ] MS. DEYNAKA: And nothing for the -- [ 96 ] MR. GERHART: Thank you, Your Honour, that is -- I think that is the only matter that I have conduct of today. [ 97 ] THE COURT: Very good, thank you very much, counsel. [ 98 ] MR.

MACAULAY: Thank you, Your Honour. [ 99 ] THE COURT: And -- [ 100 ] MR. GERHART: Thank you, Your Honour. [ 101 ] THE COURT: -- just a minute. [ 102 ] MS. DEYNAKA: Nothing further for Teck Metals. [ 103 ] THE COURT: All right.

I want to end with thanking counsel with a highly organized submission that was put to me. [ 104 ] What could have been just a total mystery to me, it was organized, that is, your agreed statement of facts and your subsequent submissions highlighting those facts in a highly organized way that they were quite understandable. [ 105 ] I also thank you for your joint submission of the casebook that put to me the relevant case law that I have to consider, and I

thank you very much for that, and your degree of cooperation is highly commendable and I thank you, and nothing further. (REASONS FOR SENTENCE CONCLUDED)