R. v. Stratabound Minerals Corp. 2015 NBPC 07, 2015 NBPC 7

R. v. Stratabound Minerals Corp. 2015 NBPC 07 PROVINCE OF NEW BRUNSWICK File No.: 04568211 PROVINCIAL COURT HER MAJESTY THE QUEEN - v - STRATABOUND MINERALS CORP. Sentence rendered by the Honourable Ronald LeBlanc, judge of the Provincial Court, at Bathurst, New Brunswick, on October 14, 2015. Appearances: Mr. Jonathan Langlois-Sadubin, for Her Majesty the Queen Mr. Richard Meschke, Agent for the corporate defendant 1 . Stratabound Minerals Corp. (“Stratabound”) pleaded guilty to two offences under the federal Fisheries Act . The first was in relation to three discharges of mine effluent.

These occurred on March 22 nd , March 26 th , and on May 24 th , 2013 at the CNE Mine Lease site, near Bathurst in Gloucester County, New Brunswick. The charge specifies that Stratabound unlawfully deposited or permitted the deposit of deleterious substances, namely mine effluent, under conditions where that deleterious substance may enter water frequented by fish, contrary to section 36(3) of the Fisheries Act , an offence under section 40(2) of that Act . The second was for failing to notify an inspector without delay of the deposit of an acutely lethal effluent, contrary to section 24(1)(

c) of the Metal Mining Effluent Regulations , (the MMER ’

s) an offence under

section 78 of the Fisheries Act at the same mine lease site. This occurred between April 5 th and April 18 th of 2013. 2 . The solitary issue in this case relates to the amount of the fine the Court should impose for these offences. The Crown suggests a fine in the range of $150,000 in total. The corporate defendant suggests that a fine in the $25,000 range would be more appropriate, considering the various mitigating factors involved and the financial difficulties facing the company. 3 . An Agreed Statement of Facts particularizes the circumstances surrounding the commission of the offences.

Stratabound does not contest the basic facts, but seeks to mitigate the seriousness of the facts, and further implores the Court to consider financial hardship to mollify what could otherwise be a harsh punishment. THE FACTS 4 . Stratabound is a publicly listed and Canadian registered base metal company that, at the time, was actively exploring and developing base metal properties such as lead, zinc, copper, cobalt, and gold in properties in New Brunswick. It was incorporated in the province of Alberta in 1986 as a private company. Its shares have been publicly traded since 1987.

It was registered as an extra- provincial corporation under the Business Corporations Act of New Brunswick. It has been continuously active in the Bathurst mining camp since its inception, a period of close to 30 years. The community has benefited from its presence in the area. 5 . It has been a respected company, winning awards for projects it undertook in the early nineties and in relation specifically to the project which ultimately resulted in these charges.

The New Brunswick Prospectors and Developers Association presented the company with two awards; one in relation to their 1990-1991 project and the same in relation to their 2012-2013 project. Indeed, these are the only two actual mining projects the company undertook in New Brunswick. Stratabound is primarily an exploration company, not an operating company. Their expertise lies in exploration, not in actual mining operations. Between 1991 and 2012, Stratabound was involved exclusively in explorations.

6 . The corporate defendant considered itself to be a responsible company. 7 . An opportunity presented itself to the company in 2012 and it sought to benefit from it. It was cash-strapped at the time and had accumulated significant debt. All other sources of financing, public and private, had dried up. The company was not financially strong and believed that they could fund further exploration activities, primarily in New Brunswick, by proceeding with this mining operation.

Twenty years previously, it had successfully mined at the CNE site and so they determined that they could repeat operations at the same location. Their strategy was to attempt to generate cash flow by taking advantage of this one-time, short-term opportunity to deliver high grade zinc, lead, and silver ore from their CNE site to Xstrata Zinc’s Brunswick mill, which was within trucking distance. They secured an agreement with Xstrata to process the ore they could deliver to them before Xstrata would shut down, an event expected to occur in March of 2013. 8 .

In order to accomplish this, the company required permits from the province of New Brunswick. These were slow in coming. The corporate defendant maintains that the CNE project application did not receive any expedited consideration from the province. In December, they received conditional approvals. Final approval was received on January 24 th of 2013. Consequently, the time period for processing the mine was extremely short, approximately 10 weeks. Mine development was initiated on January 26 th and production commenced by March 5 th , 2013.

It ended with the closure of Xstrata’s Brunswick mill on April 12 th , 2013. 9 . The CNE site operation was a basic excavation operation. No processing of any type was performed at the location. No chemicals were utilized except for blasting supplies, fuels and lubricants, none of which were mishandled or improperly treated. The only chemicals used on site were for the treatment of water to manage the settling process and manage the pH content of the water in the holding and polishing ponds that had been set up to treat any effluent before it was to be discharged from the site. 10 .

Prior to even starting the mining operations, the holding ponds in question appeared to be an ecological debacle. According to a Baseline Report prepared for Stratabound dated January 10, 2013, the metal content of water in the holding ponds was above the amounts allowed by regulation. They contained aluminium, arsenic, cadmium, iron, copper, lead, and zinc. Stratabound was responsible for cleaning up the water in the holding ponds prior to discharging the waste in the environment. They did not do so, and that is the gravamen of the first charge.

Stratabound failed to comply with the authorized discharge concentration limits for deleterious substances and the discharging of non-acutely lethal effluent as set out by the Metal Mining Effluent Regulations ( MMER ’s). Under

section 3 of the MMER ’s, certain substances, including total suspended solids and lead, listed as acutely lethal to fish, are prescribed as “deleterious substances”. The deposit of such substances that either exceeded the authorized concentration limits set by regulation and/or that are acutely lethal when deposited in water frequented by fish is prohibited under section 36(3) of the Fisheries Act . 11 . On March 22 nd , 2013, Stratabound discharged a deleterious substance, mine effluent, from their mine site.

The effluent discharged exceeded the authorized concentration limits set by the MMER ’s for both total suspended solids and lead. The total suspended solids were approximately three times the allowable limit whereas the lead was approximately 23 percent higher than that allowed. 12 . On March 26 th , the effluent discharged from the site was found to be acutely lethal to fish. Tests performed showed that the 10 fish subjected to the sample obtained from the site died within 3 hours of the test. 13 . On each occasion, the mine effluent discharged was substantial.

The total volume discharged on each occasion exceeded 1 million litres. 14 . The company was treating the water, but the treatment methods were not successful. Stratabound’s treatment plan did not work as expected. There were, however, ongoing discussions between a representative of Stratabound and an on-site Environmental Monitoring and Compliance Officer concerning problems with the quality of the water in the holding ponds. This Compliance Officer, Mr. Ian Donald, was an employee of the Department of Environment and Local Government, a provincial government department.

By agreement signed by the Regional Director of the Miramichi office of the New Brunswick Department of the Environment and Local Government dated January 30, 2013, he was assigned on a full-time basis to work closely with Stratabound. Part of his duties included monitoring, addressing non-compliance issues and ensuring that appropriate enforcement methods were taking place at the worksite. He participated in decisions regarding the project, including providing advice about water treatment and discharges. Stratabound, by contract, paid his salary and other disbursements. It was with Mr.

Ian Donald that Stratabound communicated following their receipt of the test results confirming that mine effluent samples collected on March 26 th were acutely lethal to fish.

15 . Once in receipt of this communication, Stratabound decided to stop discharging effluent from the final discharge point at the mine site until such time as the effluent quality would meet the New Brunswick Department of Environment and Local Government standards as well as those of the MMER ’s. They therefore stopped discharging mine effluent. The matter was not conclusively resolved however as the finishing ponds at the mine, consisting entirely of rain water and melted snow, continued to store the rain that fell at the site.

That rain water was contaminated by run-off from the mining project, which compounded the problem. 16 . Section 24(1) of the Metal Mining Effluent Regulations required the owner-operator of Stratabound to notify an inspector, designated pursuant to section 38(1) of the Fisheries Act , of the discharge of deleterious substances without delay. Stratabound’s representative notified Ian Donald as soon as he received the test results, but notice to Environment Canada only occurred on April 18 th , 2013. This notice did not comply with the “without delay” requirement under the MMER ’s.

Notwithstanding that Environment Canada representatives had knowledge of the situation as early as April 5 th , the inspector was notified only on April 18 th , which did not comply with the regulations, hence the charge of failing to notify an inspector without delay, the charge under section 24(1) (

c) of the Fisheries Act . 17 . On May 16 th , Stratabound notified Environment Canada that their holding cells, polishing pond and the open pit were reaching a critical stage, that they were almost full of rain water. At this sentencing hearing, the Stratabound representative related to the Court that the problem emanated from a significant rainfall amount over the course of three days in May of 2013. On May 24 th , due to the anticipated heavy rain forecasted for the week-end, Stratabound was under pressure to discharge mine effluent in order to increase their on-site storage capacity.

Failure to do so would risk the possibility of an uncontrolled overflow from the open pit. Environment Canada, as mentioned, had been notified of the situation. Stratabound told them they were to release effluent on May 24 th . On that day, the mine was inspected in order to ensure compliance with the MMER ’s. Mine effluent was observed leaving the property in the eastern corner of the site via a drainage ditch adjacent to the previous pit location at the lower sump area. This effluent was being discharged into a marsh which eventually led to the Portage River.

Mine effluent samples were collected by Environment Canada inspectors at this location. The volume of deleterious effluent discharged from the mine site on May 24 th was not quantified but tests were conducted on the samples collected. At full strength, the effluent was highly toxic to fish. Even when diluted to 6.25 percent, it was considered a deleterious substance as 60 percent of exposed fish died in that diluted concentration. The zinc concentration was approximately three times above the authorized limit.

This was the third and last discharge of deleterious substance covered by the first charge against Stratabound. 18 . All discharges from the mine were deposited into a marsh adjacent to the Portage River watershed. Stratabound brought to the attention of the Court that the marsh acted as a sort of filtration system for the effluent, as there is some distance between the discharge site and the river. Furthermore, there is no evidence that any fish actually died as a result of the discharges. Indeed, a study performed by Mr.

Rod Currie, a biological consultant and fish expert, following the completion of the project, indicated that the fish populations on the site had actually increased from before the project was mined. THE JURISPRUDENCE 19 . One of the leading cases providing guidance to courts in Canada in determining an appropriate sentence in relation to environmental offences is R. v. Terroco Industries Ltd, 2005 ABCA 141 , a decision of the Alberta Court of Appeal.

The facts in that case differ significantly from those before this Court, but the applicable principles are sound and have been applied consistently across the country in determining a fit and proper sentence in cases such as this. 20 .

The Court in the Terroco Industries case established that, because sentencing principles for environmental offences require a special approach, judges should examine five criteria in sentencing offenders in relation to environmental offences: (1) the sliding scale of culpability; (2) the existence of any prior conviction or past involvement with the authorities; (3) acceptance of responsibility, remorse and a plea of guilty; (4) the damage or harm done to the environment, including the potential for harm and (5) specific and general deterrence. 21 .

I propose to deal with each of these topics by examining the applicable mitigating and aggravating factors and other considerations that would apply in each. THE SLIDING SCALE OF CULPABILITY 22 . Sentencing judges must impose a sanction based on an objective, reasoned and measured determination of an appropriate punishment. That punishment must reflect the degree of culpability of the offender. Terroco Industries in fact states that culpability must be a dominant factor in sentencing offenders for environmental offences, recognizing however that the culpability factor is to be measured on a sliding scale.

Sentencing judges are acutely aware that the degree of criminal wrongdoing is not static but rather varies from case to case. An environmental offence, for example, can be placed at the upper echelon of seriousness where the acts are deliberate, methodical or premeditated. If, on the other hand, the acts forming the substance of the allegations are based on flimsy negligence or tenuous carelessness, the culpability factor would be seriously diminished. Slotting any offender in the appropriate position on this sliding scale is not always an easy task.

This is due to the myriad circumstances that give rise to each offence, the

variety of which may render such a decision challenging. 23 . In this case, the prosecution alleges that the sliding scale should fix the culpability factor above the point where due diligence would have absolved the corporate defendant, but below the level of sheer recklessness. I cannot disagree. The defendant corporation did not deliberately set out to harm the environment. The acts in this case were neither deliberate nor intended to cause harm.

In my estimation, the acts constituting the subject of the complaints arose in the context of a company without a great deal of experience in actual mining operations, strenuously attempting to raise needed funds to further their continuing mining exploration activities and getting caught up in something beyond their ability to rectify. It is of no consequence that the water was polluted prior to their starting up operations. It is also of no consequence that more rain fell than could have been predicted during their mining operations.

The vagaries of nature do not excuse non-compliance with strict regulatory directives intended to protect our environment. I believe that Stratabound had a plan to raise funds, but that plan began to disintegrate early on with the delay in obtaining the required permits. The defendant company wanted to comply with the protections assured by compliance with the regulations, but was unable to cope because of lack of preparedness, lack of foresight and lack of funds.

It was a small mining operation with little experience performing a job that required enormous responsibility for the protection of the environment. 24 . I do not agree with the prosecution that the company’s experience in the field, specifically being “in the mining industry for over twenty years”, should be considered an aggravating factor because they were accustomed to the circumstances and conditions of the area in which it was operating. Their experience was in exploration, not in mining.

They had actually mined only once, for a short period of time, some twenty years previous to the events giving rise to the charges. For the twenty intervening years, they were exclusively in the business of exploration, which differs considerably from actual mining. 25 . Undoubtedly Stratabound was aware of its responsibilities in regards to water treatment. They attempted to comply with them. They were communicating with the on-site Environmental Monitoring and Compliance Officer who was actually at the mine site. They attempted to correct the problem.

They utilised the chemicals destined to manage the settling process and modify the pH content of the water at the site prior to discharge, but these chemicals did not correct the toxic metals content in the effluent. To use the vernacular, in my opinion they were simply “in over their heads” and couldn’t cope. 26 . I would classify this offence as one of negligence and disregard brought about by lack of experience and lack of prudence, situating it more at the bottom half of the sliding scale of culpability than at the top half. 27 . I would categorize the second charge against Stratabound in the same fashion.

There was no attempt at concealment of the results of the testing. There was no suppression of evidence or attempt to hide anything from prying eyes. The developing situation was known to the Environmental Monitoring and Compliance Officer, a provincial government representative. There were ongoing discussions and e-mails sent between the representatives. The actual situation was known by everyone at the site. The charge arises from the lack of notice to an inspector for the federal government. The federal government, through Environment Canada, was eventually notified, albeit not without delay.

It is unknown whether a more prompt notice would have had any impact on the procedures at the site. PRIOR RECORD 28 . The existence of any prior conviction, or of warnings to desist, would constitute an aggravating factor in sentencing. In this case, Stratabound’s reputation is sterling. They had neither prior conviction, nor any warning from any authority in relation to conduct beyond the sphere of the present convictions. In fact, the opposite is true, the company having won awards in relation to both mining projects in their brief mining sagas. ACCEPTANCE OF RESPONSIBILITY, REMORSE AND GUILTY PLEA 29 .

An early guilty plea to an environmental offence is a mitigating factor: Terroco Industries , paragraph 39. Unquestionably, credit must be attributed to a guilty plea as the cost of investigating and of prosecuting such offences can be especially high. Additionally, the plea of guilty is an acceptance of responsibility for the offending behaviour, which is demonstrative of remorse and of positive prospects for rehabilitation. 30 .

The prosecution in this case is of the opinion that the Court should not attribute full mitigating credit to Stratabound, notwithstanding their guilty plea, because of the delay in entering that guilty plea. I disagree. A number of adjournments were granted by consent of both parties to the entering of a plea in this case. There were ongoing resolution discussions being held between them. There was never a plea of not guilty entered for these offences.

Additionally, the ongoing discussions were made much more complex because of the sensitive nature of discussions surrounding the proposed merger of the offending company with Silver Stream Mining Corp. The specific details of that proposed merger are not important under this heading of sentencing. What is important is the fact that their discussions created a situation where an earlier plea of guilty would not have been advisable, or indeed even possible.

31 . Stratabound never denied the events giving rise to the charges, nor did it ever hold out that it was not responsible for the discharges that occurred. They deferred entering a guilty plea because they believed that the fines suggested by the Crown Prosecutor in their resolution discussions were excessive and unreasonable and because the prospect of a successful merger would dissipate if the fines imposed by the Court were too high. These very defensible beliefs should not deny them the credit they would otherwise be entitled to because of an early guilty plea. HARM AND POTENTIAL HARM TO THE ENVIRONMENT 32 .

In this case, there is no proof of actual harm to the environment. That is to say that there were no studies or tests performed on- site which conclusively established that the environment was harmed by the release of the hazardous effluent. The potential for harm, however, was significant, as was very aptly demonstrated by the subsequent tests on fish utilizing the effluent that had been discharged from the holding ponds. 33 . Testing on the two discharges in March disclosed that the toxicity level of the effluent to be such that within three hours of exposure to it, all fish had died.

The May discharge was so toxic that all fish tested died with an exposure reduced to 12.5 percent of the effluent sample. 34 . To be more precise, the March 22, 2013 discharge of the deleterious substance exceeded the authorized concentration limits as set by the MMER ’s for both total suspended solids and lead. The March 26 th discharge was acutely lethal to fish: all fish died within three hours of the test initiation. In both cases, the discharged effluent was significant: in excess of 1 million liters on each occasion. 35 . What is particularly aggravating in this case is the May 24 th discharge.

This is so because Stratabound had received on April 5 th the test results of the March 26 th discharge, showing that discharge to be acutely lethal to fish. They therefore had notice of the toxicity levels and of the potential harm to fish. The company stopped the discharges pending compliance with the regulations, but the water levels kept rising, leading to the accumulated water being discharged. Once again, this discharge was tested and determined to be acutely lethal to fish. All fish tested died in the 12.5 percent concentration and 60 percent died in the 6.25 percent concentration of that effluent.

Zinc was approximately three times above authorized limits. 36 . Consequently, the aggravating factor of potential harm to the fish habitat in the Portage River system was manifest. Actual harm was not proven, nor advanced, but potential harm was significant. As previously mentioned, a subsequent analysis of the water system in question showed an increase in the number of fish at the location. SPECIFIC AND GENERAL DETERRENCE 37 . The fine imposed must be such as will deter Stratabound from committing similar offences in the future.

As importantly, is must be one that will dissuade others in similar circumstances from committing these types of offences. 38 . The specific deterrence element in this case has an interesting twist to it. Stratabound as it existed at the time of these offences will not be paying the price for the harm it committed. It is no longer a viable company. It has little assets. The company representative stated that it has approximately $14,000.00 in the bank and it cannot pay a fine. The mining project lost money.

Because of a lack of funds, Stratabound had not been able to complete the audit of the company’s financial statements at year-end 2014, and a cease-trade order was issued with respect to the company’s shares, which had traded on the TSX Venture Exchange. The financial statements have now been completed and work is underway to have the cease-trade order removed. 39 . It is only through the merger of the two companies that Stratabound will continue to exist. It is hoped that the merger will allow Stratabound to continue its mining exploration ventures.

By purchasing the shares of Silver Stream Mining Corp., a new source of funding may be found. According to the representative from Stratabound, the decision to proceed or not with that merger depends on the amount of fine imposed by the Court. It is maintained by them that a fine in the amount sought by the prosecution would signify the death knell for the proposed merger. 40 .

Having given serious consideration to the particular dilemma faced by the proponents of the proposed merger between Stratabound Minerals Corp. and Silver Stream Mining Corp., I have nonetheless concluded that a punishment to be imposed on a corporate entity for an environmental offence should not be influenced by external factors such as post-offence proposed mergers. The fine imposed should be a reflection of the judicious application of the germane purposes and principles of sentencing that govern such matters.

To reduce a fine that would otherwise be imposed in order to allow a merger to proceed between the offending company and its proposed benefactor ignores the basic principle of sentencing: to punish the offender for the wrongdoing committed.

41 . That is not to say, however, that the financial position of the company is not to be considered. In fact, it is one of a group of factors to be considered. The offender’s general ability to pay is always to be taken into consideration by the sentencing judge: see Terroco Industries , paragraph 58.

The following is found at paragraph 60 of that decision: “…The starting point for sentencing a corporate offender must be such that the fine imposed appears to be more than a licensing fee for the illegal activity or the cost of doing business…The other side of this coin must be that, in the majority of cases, the sentence should not result in economic inviability…The penalty must be more than a slap on the wrist but less than a fatal blow.” 42 . Consequently, specific deterrence is not a significant factor in this instance, but general deterrence is.

The message must be clear: flagrant abuse of the environment resulting in harm or potential harm is not to be tolerated because the protection of the environment is essential to the health and well-being of all creatures and plants living on this planet. Polluters must pay for the cost of their illegal actions. RELATED CASES 43 . A series of unreported cases have been cited to me by the prosecution. These include: • R. v. Imperial Oil N.W.T. Ltd. from September 15, 2011, unreported, a decision from the Territorial Court of the Northwest Territories.

The global penalty imposed was $160,000.00 following a guilty plea and a joint recommendation on sentencing. The large petroleum producer released approximately 4000 liters of a corrosion inhibitor known as Nalco 7390 into the Mackenzie River. There was no evidence of any impact on the fish or fish habitat. • R. v. Clark Builders from January 2012, unreported, a decision from the Alberta Provincial Court. A global penalty of $285,000.00 was imposed following a guilty plea.

The company punctured a relocated underground water main after failing to obtain the locations of the main, resulting in 12 million liters of chlorinated water being deposited in the North Saskatchewan River. There was no evidence the spill killed any fish, but a fisheries toxicologist provided a report that the water would have killed fish in the river for significant distances. • R. v. Coastal Shipping Limited , from January 2013, unreported, from the Newfoundland and Labrador Provincial Court. A global penalty of $100,000.00 was imposed following a guilty plea.

Seventy liters of diesel fuel were spilled while the fuel was being transferred from the ship to storage tanks in the community. The spill was held to be deleterious to fish and the fish habitat. • R. v. Teck Metals Ltd , from November 2013, unreported, from the British Columbia Provincial Court. A global penalty of $210,000.00 was imposed on the defendant who had discharged approximately 350,000 liters of highly caustic effluent into the Columbia River. There was no evidence of environmental harm. • R. v. SemCAMS ULC from December 2013, unreported, from the Alberta Provincial Court.

A global penalty of $350,000.00 was imposed after wastewater generated from the processing of natural gas was discharged. The wastewater was being transported by an underground pipeline which ruptured. Approximately 852,000 liters were released. Hundreds of dead fish were discovered downstream of the spill. • R. v. Greater Vancouver Sewerage and Drainage District , from April 2014, unreported, from the British Columbia Provincial Court. A global penalty of $110,000.00 was imposed following the release of approximately 650,000 liters of untreated raw sewage into the Burrard Inlet.

One of the pumps at one of their pumping stations became partially plugged with debris. There was no evidence of environmental harm such as dead fish, but the Inlet in question was frequented by many species of fish. • R. v. Alberta Capital Region Wastewater Commission from July 2014, unreported, from the Alberta Provincial Court. A global penalty of $200,000 was imposed when a sewage pumping station failed and released approximately 500,000 liters of untreated sewage into the Sturgeon River. There was no evidence of actual harm to fish. 44 . The defendant cites R. v.

Iron Ore Company of Canada , from June 15, 2015, unreported, from the Newfoundland and Labrador Provincial Court. The global penalty of $30,000.00 was imposed for an offence of failing to notify an inspector of the deposit of effluent without authorisation in fish-bearing water.

45 . With respect to this last noted case, I agree with the prosecution that it has limited precedential value in this case since the offence for which the fine was imposed was for failure to notify an inspector of an unlawful discharge. The company was seemingly not charged with an offence relating to the actual discharge of effluent. APPLICATION OF THE SENTENCING PRINCIPLES 46 . At the time of the occurrences, the maximum penalty for the two

summary conviction offences in question was $300,000.00. The penalties have since been amended to increase the maximum sentences and to impose a mandatory minimum sentence: see

section 40 of the Fisheries Act . I agree with the prosecution that by increasing the maximum fines and imposing minimum fines for such offences, Parliament has demonstrated its intention to treat these charges as being serious. Stratabound is not, of course, bound by the current legislative scheme relating to fines. The intention of Parliament, however, as demonstrated by its approach to sentencing for these offences, can be considered by the Court. Parliament considers environmental offences as being serious and the courts should as well. 47 .

To summarize then, Stratabound, a company experienced in the mining industry but relatively inexperienced in actual mining operations, committed a serious offence by discharging mining effluent that had the potential to be very harmful to the environment. No actual proof of harm has been demonstrated or alleged. The potential for harm, however, was significant, not only because of the quantity and quality of the noxious substances found in the water, but also because of the amount of material discharged and the location of the discharge, being in close proximity to a river system. 48 .

The company did not set out to deliberately harm the environment. Indeed, they attempted to clean the toxic substances from the water and stopped discharging the noxious substances upon receipt of a report demonstrating the harmful effects a discharge could have on fish. They were aware of their responsibilities to clean up the water prior to discharge and attempted to comply with regulations. They simply could not cope with the developing situation due to time constraints beyond their control, financial hardship, and a strong desire to raise funds for continued exploration, their primary enterprise.

They cooperated as best they could with the authorities, did not attempt to conceal or suppress their activities, and made genuine attempts to correct the problem. By discharging in excess of two million liters of deleterious substance into the environment, however, they shoulder the responsibility for a cavalier disregard and brazen indifference to the well-being of the environment. 49 . The company has a stellar record in the mining industry, has accepted responsibility for its actions, has demonstrated remorse, and has entered a guilty plea to both offences. 50 .

Specific deterrence is not, in my estimation, an important factor in sentencing in this case, but general deterrence has an important role to play in attempting to deter other offenders from committing similar infractions. 51 . As for the financial position of the offending company and its ability to pay a fine, the circumstances in this case are quite unique. Stratabound, as it currently stands, is unable to pay a substantial fine. It is, I believe, on the brink of dissolution. Its continued existence, apparently, depends on external factors not in its control.

Whether it survives or not is entirely contingent upon a separate corporate entity which has stated that it will consider the amount of the fine in deciding whether or not to proceed with a proposed merger. 52 . Related jurisprudence shows a tendency by the courts to impose significant fines for violations involving the discharge of deleterious substances into the environment. This is so even in the absence of evidence of actual harm to the environment. 53 .

Having analyzed and balanced all relevant sentencing principles and the various factors that come into play in determining a fit and proper sentence, it is my view that the following penalties should be imposed in this case. 54 . For the offence of failing to notify an inspector without delay of a deposit of an acutely lethal effluent as required under section 24(1)(

c) of the Metal Mining Effluent Regulations , an offence under

section 78 of the Fisheries Act , the fine will be $5,000.00. 55 . For the offence of depositing deleterious substances on three occasions, an offence under section 40(2) of the Fisheries Act , the fine will be $20,000.00. Added to this fine, under

section 79.2(

f) of that Act , the Court orders that Stratabound Minerals Corp., in order to promote the proper management and control of fisheries or fish habitat, or the conservation and protection of fish or fish habitat, shall pay an additional sum of $50,000.00. 56 . The global sentence is therefore one of $75,000.00. The two fines are ordered to be paid by January 29, 2016. The $50,000.00 is

payable to the Environmental Damages Fund, administered by Environment Canada. That amount must be paid within one year from today’s date. Dated at Bathurst, New Brunswick, this 14 th day of October, 2015. _________________________ Ronald LeBlanc Provincial Court Judge