R. v. Shaffer, 2022 NSPC 20

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Shaffer, 2022 NSPC 20 Date: 20220614 Docket: 8450457, 8450458, Registry: Kentville Between: Her Majesty the Queen. v. Derrick Shaffer carrying on business as Shaffer Enterprises AND 3144393 Nova Scotia Limited Judge: The Honourable Judge Ronda van der Hoek, Heard: May 26, 2022, in Kentville, Nova Scotia Decision June 14, 2022 Charge:

Section 158(

H) of the Environment Act SNS 1994-95 c. 1, s. 1 . Counsel: Brian Cox, for the Crown Bernie Conway, for the Defendants By the Court: Introduction : [ 1 ] The defendants, 3144393 Nova Scotia Limited and Derrick Shaffer carrying on business as Shaffer Enterprises, entered guilty pleas to charges of contravening an Order, to wit: a Sentence Order dated August 22, 2018, contrary to

section 158 (

h) of the Environment Act SNS1994-95 c. 1, s. 1 . On that date in 2018, the defendants were ordered pursuant to s. 166 of the Act to complete site remediation, among other things, following a fire that burned for days at their storage property. The first step was submission of a plan acceptable to the regulator. [ 2 ] A jointly recommended sentence sought fines of $500.00 for each defendant and a new Sentence Order directed at achieving compliance with the terms of the original.

After considering the submissions of counsel, the Court accepts the joint recommendation as it is in keeping with the sentencing imperatives for regulatory offences. [ 3 ] While it is not the general practice of this Court to provide written reasons in such circumstances, there are very few available pursuant to this legislation and it may also aid the administration of justice that the Sentence Order is appended hereto. The Background Facts : [ 4 ] On August 22, 2018, the defendants were sentenced before the Honourable Judge Tufts for an offence contrary to s. 158 (

f) of the Environment Act and s. 4(1) of the Air Quality Regulations. In addition to fines, they were ordered to comply with the terms and conditions of a Sentence Order. Lacking familiarity with that matter, the parties agreed that this Court could review the court recorded sentencing submissions and the unreported decision of Judge Tufts for added context. [ 5 ] The Court determined the defendants had operated a construction and demolition business involving collection and proper storage of items for a limited time. Essentially, they operated a landfill for construction waste contained in sorted cells.

One such cell caught fire and burned for 4-5 days. The cause of the fire was unknown, but designated materials, including plastics, burned resulting in the issuance of an air quality alert. The regulator investigated and determined there was a breach of the conditions of the company approval for cell construction, a failure to situate sheds and sort out illegal materials, no approval for storage of certain materials, and cell capping had not been undertaken in aid of reducing the risk of fire.

The defendants lacked an operational emergency response plan and in particular, their water tank was off site being repaired at the time of the fire and there were insufficient monitoring wells, no sorting pads, materials were stockpiled for too long, a lack of compliance with settling pond set-backs, unconstructed sheds, and roads were not laid out in accordance with the company operating approval.

[ 6 ] The defendants were convicted of burning designated materials without authorization. The Offences before this Court : [ 7 ] Following the 2018 sentencing, an engineer engaged by the defendants sent the environmental regulator a site assessment plan- the first step.

Upon receipt and review, the environmental regulator advised the defendants that plan was not acceptable, and in December 2019 issued a Directive for completion of item 1 of the Order. [ 8 ] By February 4, 2020, neither compliance with the Sentence Order of Judge Tufts nor the Directive had occurred, and the defendants were charged with contravening the Sentence Order on February 5, 2020. Prior Environmental offences : [ 9 ] The defendants’ prior environmental offences include the following:

(1) The situation leading to the Sentence Order imposed by Judge Tufts in 2018.

(2) Between February 2008 and May 2009, a breach of s. 158 (

f) of the Environment Act for which they were sentenced in December 2010 to a $500 fine and a Sentence Order directing removal of materials.

(3) Between October 2004 and December 2005, a breach of environmental legislation for which they were sentenced in April 2008 to a $500 fine. Legislative Framework : [ 10 ] The provincial Environment Act is the regulatory vehicle used to obtain compliance with environmental initiatives in the province of Nova Scotia. Pursuant to s.158 of the Act it is an offence to contravene a Sentence Order. Section 166(1)(a)-(

i) provides the Court a number of available orders “related to penalty that may be imposed in addition to any other penalty imposed pursuant to the Act ”. In that regard, Courts are directed, “having regard to the nature of the offence and the circumstances surrounding its commission” to make any of those various orders. In this case, s. 166(1)(

i) authorizes an order “requiring the offender to comply with any other conditions the court considers appropriate in the circumstances for securing the good conduct of the offender and for preventing the offender from repeating the offence or committing other offences”. [ 11 ] Perhaps not surprisingly, the Court was not provided case law in support of the recommended sentence, likely due to the fact that such decisions are rarely reported. The Court did, however, locate and consider R. v. Milligan 2004 NSPC 42 , a decision of Tufts ACJ, that reminds of the need to characterize the offence.

That decision involved the removal of topsoil from a commercial property and Justice Warner, siting as a

summary conviction appeal court, considered the sentencing judge’s characterization and upheld the sentence decision: R. v. Milligan 2005 NSSC 22 . Analysis : [ 12 ] General and specific deterrence are the primary sentencing principles applicable to environmental offences. The existence of previous convictions under the same legislative framework is an aggravating factor. [ 13 ] In accordance with the Act and Milligan , this offence is best characterized as a failure to comply and not a continuation of the previous offence. The Court was told Mr.

Shaffer aimed to comply with the 2018 Sentence Order, but ran into difficulty locating and engaging the proper experts. Those efforts did not, however, rise to the level of a due diligence defence. [ 14 ] There was no suggestion the defendants have not complied with the terms of past sentences noted above. [ 15 ] The defendants plead guilty, and while those pleas may not be described as early, they did follow intensive work on the part of their counsel to arrange an outcome satisfactory to the regulator.

Such is not unusual in the context of regulatory matters, and counsel submits there is no question the defendants should have immediately commenced compliance with the original Sentence Order, but they accept responsibility for their actions and are now well and truly engaged in compliance efforts. [ 16 ] The Crown and defence urge acceptance of the jointly recommended sentence because it takes account of the defendants’ environmental record, achieves the ultimate goal of returning the worksite to the proper state, and addresses completion of the original Sentence Order.

While $500.00 fines could be viewed as nominal for each defendant, the Court is asked to consider the significant minimal costs, $80,000.00 to date, incurred by the defendants to engage with the engineer/foreman to complete the remediation project. More costs will be incurred as the project advances to completion. [ 17 ] The Court finds the jointly recommended fines proper in the circumstances. Section 166(1)(

i) orders are meant to be imposed in addition to any other penalty , as such it is necessary a fine first be imposed to in turn authorize imposition of the necessary Sentence Order. Such fines, while nominal, do assist in achieving the environmental aims of the legislation. [ 18 ] The Sentence Order, attached, achieves the legislative purpose and it too is accepted. It accords with the principles and purposes of sentencing and does not bring the administration of justice into disrepute. [ 19 ] Judgement accordingly. van der Hoek PCJ