R. v. Lane, 2011 ONCJ 898

Citation: R. v. Lane , 2011 ONCJ 898 ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES COURT HER MAJESTY THE QUEEN v. WILLIAM IRVINE LANE ********** REASONS FOR SENTENCE GIVEN BY HIS WORSHIP JUSTICE OF THE PEACE J. ZIEGLER on 25st of May, 2011 at St. Thomas, Ontario **********

APPEARANCES: L. Webber Counsel Ministry of the Environment B. Colquhoun Agent for the defendant THE COURT: This is the sentencing of Mr. William Irvine Lane based on a conviction that I had made on May 31 st , 2010. So I have a lot to say and I have written the judgment out. I am not going to require anybody to stand while I read it. The Court convicted the defendant William Lane on May 31 st 2010 with one count of operating a waste disposal site on or about April 10, 2008 and ending on or about May 20, 2008 at 94 Woodworth Avenue in the City of St. Thomas, County of Elgin without a certificate of approval having been issued by the Director contrary to section 27 (1) (

b) of the Environmental Protection Act , R.S.O. 1990, c.E.19 as amended and thereby committed an offence under section 186(1) of the said Act . Sentencing submissions were heard on January 17, 2011. The defendant has a record of similar or related offences on four previous occasions: (

a) found guilty on January 3, 2008 of four offences contrary respectively to sections 186(2) , s. 27(1) (b), s. 41 , and s. 18(1) of the Environmental Protection Act and sentenced on September 11, 2008 to a total of 18 months in prison plus a

section 190 Environmental Protection Act order was imposed, these offences occurred at a site referred to as the Melbourne Tire site; (

b) found guilty of 2 offences on May 5, 2005 contrary to s. 28 of the Fire Protection and Prevention Act 1997 and fined $1200.00 for each; (

c) found guilty of 3 offences on January 13, 2000 under section 186(2) of the Environmental Protection Act and sentenced to fines totalling $27,500, plus orders to clean up the property; and (

d) found guilty of 2 offences on November 6, 1998 contrary to sections 40 and 186(2) of the Environmental Protection Act and fined a total of $16,000. Fines totalling $47,770 remain outstanding at the present time from the fines imposed for the 2005, 2000, and 1998 convictions. The Prosecution is asking for the maximum 12 months imprisonment of the defendant as he has not paid his previous fines in total [although he paid approximately $7575 towards those fines], shows no remorse, and continues to believe he is innocent although he accepts the Court’s judgment.

The defendant’s agent is seeking an intermittent sentence or community service, and probation as the defendant is 69 years old in October, is not working, has minimal pension income of approximately $907 per month, has substantial health problems, he supports and cares for his fiancée who has no means of support at the time of submissions [although she has a pending application for ODSP], the fiancée has more severe health issues then the defendant and the defendant has not breached the probation order or conditions imposed under

section 190 Environmental Protection Act made September 11, 2008. The parties agree that the cleanup costs of the site at 94 Woodworth Avenue were approximately $8,000 paid by the subsequent owner of the site. There is no suggestion before me that the Province of Ontario had any cleanup costs in respect to 94 Woodworth Avenue. There is no evidence of what the new owner paid for the site or whether the cost of the site was reduced to that purchaser as a result of the need to remove approximately 14,000 tires from site.

There is no evidence before me that after the removal of the tires from 94 Woodworth that any other environmental cleanup was required or any hazard remained. The defendant was not the owner of the site when he operated a waste disposal there between April 10 and May 20, 2008, although the owner at that time had discharged him from her employment in January 2008 [referenced in paragraph 27 of the my judgment of May 31, 2010] and up until that time in January 2008 the defendant had operated the site for the then owner Diane Sura.

The Court notes that the defendant was charged by the Ministry of the Environment for the current offence period of April 10, 2008 and May 20, 2008 in September 2008 after he was sentenced and incarcerated on September 11, 2008 for the four offences arising at the Melbourne Tire site and no explanation or reason was offered by the Ministry as to why this current charge was not laid prior to the sentencing on September 11, 2008. In fact, the defendant had pleaded to the four charges arising from the Melbourne site on January 3, 2008 on an agreed statement of facts.

Had the Ministry raised the current charges prior to sentencing on September 11, 2008, the defendant may have chosen an option to consider consolidating the matters. Instead the current information before the Court was sworn September 29 th 2008.

The Prosecution has raised obligatory sentencing considerations for the Court to address under

section 188.1 of the Environmental Protection Act . Both Parties refer to the pre-sentence report completed July 16 th 2010 as supportive of the sentence they deem appropriate. The Prosecution provided pictures and frequently referred to the severity of the environmental impact of the then and ongoing tire cleanup at the Melbourne site for which the defendant was sentenced to 18 months in prison.

The Melbourne conviction and sentence will be given due consideration by this Court but the current sentencing decision is not to be construed as a penalty for something the defendant has already been convicted for and sentenced on. The environmental impact and cleanup costs of the Woodworth site is not remotely similar to the Melbourne Tire site.

The Prosecution suggested that the defendant made money from operating his tire recycling business, referring to the approximately 700,000 tires he disposed of during the years he operated the Melbourne site for money, and implied that he had the means to pay his fines but chose not to. The Prosecution offered no evidence of the means or wealth of the defendant. The only evidence I have of the defendant’s financial status is from his testimony and that of his fiancée Teresa Fugard in respect to sentencing.

The only evidence I have of the health, physical and psychological abilities and/or limitations of the defendant and his fiancée are from the testimony of the defendant and his fiancée Teresa Fugard given January 17 th 2011, coupled with some medical exhibits provided at that time.

Pre-Sentence Report dated July 16 th 2010: The pre-sentence reports tells us that the defendant was born October 17 th 1942, was raised by his mother, the father unknown, until he left this dysfunctional home at age 14 and moved from Ontario to British Columbia where he logged, had a wife and child, divorced shortly after the daughter Kimberly was born. He has grade 7 education, plus carpentry apprentice, and logged for 25 years. He moved back to Ontario and three years ago he entered into a relationship with Teresa Fugard.

In the late 1980’s he purchased a pig farm which eventually developed into a tire site [Melbourne Tire site]. He is currently unemployed and living on a Canada pension. The pre-sentence report states he had no difficulty complying with the parole conditions, but the probation officer is concerned his previous fines remain unpaid and he maintains his innocence although he accepts and respects the Court finding. The suggested sentence considerations are avoiding activity that contravenes the Environmental Protection Act , full remuneration if means becomes available and community service.

In respect of the testimony of William Lane and Teresa Fugard on sentencing: Mr. Lane is proud of and takes credit for discovering the use of tire sidewalls to secure traffic cones on highways which eliminates the need for 25 pound bags of sand to keep the cones from toppling. He believes those sidewalls to be a product developed from recycled tires and does not classify them as waste.

This court takes note of the utility of that discovery and applauds the use of tire sidewalls for such an important safe way to secure traffic cones, but does not accept any suggestion that this product or its use justifies the disregard of the law as to volume of tires on a site where no Certificate of Approval has been obtained and this invention will not garnish any mitigation of sentence. Mr. Lane will be 69 years old October 17 th . I accept his testimony that he has multiple health issues.

He has coped with a deformed right hand since birth; he has had a knee operation which has gone bad and affects his mobility; he has high blood pressure; two amputations of toes on his feet; walking is difficult; chronic hypertension controlled with three medications, hemochromatosis, peripheral vascular disease causing legs to swell, osteoarthritis and a right knee arthoplasty; remote history of retinal detachment and is morbidly obese [see exhibit 4b letter from Strathroy Medical Clinic dated September 2, 2010]. Mr. Lane takes care of his fiancée Teresa Fugard.

She was in a car accident in 2002 and received $60,000 for her injuries of which she used $20,000 to loan to the defendant to help clean up the Melbourne site [move tires off site], and the rest to live on, purchase a van and furniture. However, Teresa Fugard also has multiple health issues. She has short term memory problems, migraines, unable to control her limbs [drops things], anxiety and depression and takes medication for these conditions as well as stomach problems. She relies on Lane to cook and transport her to treatment, care for her when she is bedridden due to the migraines, clean her and feed her.

He supports her financially on the approximately $907 per month Canada Pension and Old Age security he receives. She is 46 years old and has applied for ODSP which application was made in 2008 and denied, currently under appeal. The couple live in a retirement community or seniors residence in Belmont, Ontario. Mr. Lane has not worked since his incarceration September 11, 2008. He cares for his fiancée Teresa Fugard. He has no assets, he lost the Melbourne farm to the Ministry lien and an outstanding mortgage [it cost 1.8 million to clean up the site], has a 1999 Intrepid and no other assets.

I accept the evidence of William Lane, his physical ailments, that he is impecunious, has a low pension income of approximately $907 per month, and cares for Teresa Fugard who has multiple physical and psychological problems stemming from a motor vehicle accident in 2002. This finding is supported by the evidence of Teresa Fugard who was sincere and credible in chief and cross-examination, as was William Lane credible. There is no evidence to rebut their testimony. William Lane says he will never work again; he left the tire industry when he was incarcerated in September 2008 for good.

He has complied with all of the terms and conditions of his probation order. I am making these findings of fact and this Court regards Mr. Lane not as unemployed but rather, given his age and health condition, the Court would view Mr. Lane as retired. Mr. Lane pleaded guilty in January 2008 to the 4 Melbourne site charges. He says he expected a fine not jail when it came up for sentence September 11, 2008 although he was given a “prosecution disposition report” in September 2008. He testified that he did not like jail; it was a horrible 6 months [he was released in March 2009].

He did not like the drugs, the intimidation, the threats and beatings

that occurred. He cannot fight. He said he retired the first day in jail. He said he would not abuse his probation or parole and I have no evidence or suggestion that he did. His health has further deteriorated since he was released from jail. He said it took one month to get his medications on track by Corrections because they don’t believe you about health in jail. He said he had blackouts because of this. I accept Lane’s testimony about his experience in jail and his decision to comply with the Court order and to retire. AGGRAVATING FACTORS Under

section 188.1 of the , Environmental Protection Act the Court is required to consider the following circumstances as aggravating factors: 1. Whether the offence caused an adverse effect: The court states it caused a subsequent owner to spend $8,000 to remove tires but no evidence whether this cost was mitigated by the purchase price paid to the previous owner who had established or created the tire recycling operation at 94 Woodworth Avenue and no evidence of any loss by that landowner. There is no evidence of public cost or lasting environmental harm 2.

Whether the defendant committed the offence intentionally or recklessly: This court states, absolutely, the defendant repeatedly ignored the orders of enforcement officers and did not reduce tire counts in a timely or permanent manner. 3. Whether the defendant was motivated by a desire to increase revenue or decrease costs: the court states the defendant has not benefitted in any significant way financially, he has no savings or assets to show for his actions, but he would have covered his living expenses while working the site and so in a minimal way was motivated to increase revenue albeit unsuccessfully. 4.

Whether the defendant committed the offence despite having been warned by the Ministry of circumstances that subsequently became the subject of the offence: The court states, absolutely, the defendant was warned by the officer s to comply and from past experience knew charges would be laid. 5. Whether after the offence the defendant attempted to conceal the commission of the offence: The court states, no evidence to support this. Considering whether he failed to cooperate with the Ministry: the court states, no evidence to support this.

Considering whether he failed to take prompt action to mitigate the effects of the offence: the court states he was incarcerated when charged and no longer had control of the property. Whether he failed to take prompt action to reduce the risk of similar offences: the court states, he retired from the industry after release from prison so he took prompt action. 6. Whether he previously contravened legislation of Ontario intended to prevent or minimize harm to the natural environment: the court states, absolutely, he had prior convictions and fines at the time the charges were laid. 7.

Other aggravating factors: the court sees none that have not already been commented on.” The Prosecution has provided case law to support the incarceration of William Lane.

This Court distinguishes all of those cases because in not one of them did they have an aged defendant with the multiple health issues like the defendant, William Lane; not one was previously sentenced to 18 months in prison before charges were laid for a different offence which occurred before they were sentenced to that 18 months incarceration; none of them were supporting financially on a minimal pension income a fiancée with equally debilitating health issues while physically and emotionally dependant on the defendant; and finally, none of them involved a defendant who has reached an age and health condition where retirement is their only and best alternative.

I find that William Lane retired from work the first day he was imprisoned in September 2008. I find that William Lane has complied with his probation order, and that he is presently unable to pay the outstanding fines rendered between 1998 and 2005 due to his dire health and financial circumstances, and that he has no assets capable of paying those fines. While I am of the opinion that should he develop the means, then those fines are required to be paid, I do not see any prospect of that happening and I view his pension income as subsistence level.

I am taking note that part of the function of sentencing is general and specific deterrence, retribution and reform. I am satisfied that the incarceration of William Lane on September 11, 2008 had the desired effect of deterring William Lane from committing any subsequent offences, he retired from the work force and the industry. That sentence was of significant general deterrence. I find as a fact that the experience of prison had a specific deterrence on Mr Lane based on his testimony, and had Mr.

Lane been sentenced and imprisoned on the Melbourne conviction date of January 3rd, 2008, he would likely have been deterred from committing a further offence in April and May 2008 and I am giving him the benefit of that doubt. I am satisfied that the deleterious effects of prison have reformed Mr. Lane, and while he may still take pride in discovering a use for sidewalls, he can take no comfort that the law will give him any leeway if he were to commit any subsequent offences of a date after sentencing in September 2008.

Therefore, I am suspending the sentence of William Lane and placing him on probation for two years with conditions, and a

section 190 order as proposed by the Prosecutor. The terms of his probation are, in addition to the standard conditions, that he makes every effort to pay his outstanding fines if means become available; that he reports monthly to his probation officer or more frequently if directed and provides regular monthly financial upgrades to his probation officer; and, pursuant to

section 72.(3) of the Provincial Offences Act , with the consent of the defendant, which

consent has been initially given through his agent on submissions and now I am asking the defendant whether he consents to an order for community service, if so the defendant will perform a community service order as outlined in the following paragraph, subject to both parties, that is the prosecution and the defence, providing input on the wording of this community service order to give effect to the community service provisions I intend to impose. MR. COLQUHOUN: The defendant consents, Your Worship.

THE COURT: The defendant will perform a community service order in the amount of 10 hours per month commencing in the month of June 2011 and ending in the month of May 2013, which order can be satisfied by the defendant caring for Teresa Fugard, taking her for treatments or medical appointments, feeding her, bathing her, escorting her for or getting her groceries or medication or other necessities, taking her for counselling or other treatments, and assisting her in any other way that is necessary for her to function in her daily living.

The defendant will record the number of hours per month that he attends to Teresa Fugard in this regard and show it to his probation officer monthly. The accumulation of more hours in any given month does not reduce the 10 hours required in each subsequent month.

In the event that Teresa Fugard and the defendant separate, other than by hospitalization or death of either of them or at the request of Theresa Fugard made to the probation officer or for any reason deemed appropriate by the probation officer, then the defendant shall complete the remaining community service hours to the satisfaction of and at the direction of his probation officer. MR. COLQUHOUN: We take no issue with the wording of the community service hours as Your Worship has indicated. ...SUBMISSIONS BY MS.

WEBBER THE COURT: In the event that my sentencing decision is viewed as incorrect and a Court of appeal on review is of the opinion that I am obligated to sentence Mr. Lane to some form of prison notwithstanding his health issues, then I would alternatively have sentenced Mr. Lane to the same period of probation and the same conditions, including community service hours, with the added term of 8 days in prison to be served intermittently.

The basis for this term of imprisonment would be the timing of the current charges having occurred prior to the September 11, 2008 sentencing where the defendant received 18 months in prison, the negligible impact on the environment after the tires were removed from 94 Woodworth, as well as considering or contrasting the cost of $1.8 million public dollars to clean up the Melbourne site versus the $8,000 private dollars to clean up the current Woodworth site, and finally, the fact that the defendant retired from the tire business on September 11 th , 2008. **************************************** FORM 2 CERTIFICATION OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Vicki Scott, certify that this document is a true and accurate transcript of the recording of R v Lane in the Provincial Offences Court held at 450 Sunset Drive, London, Ontario, N5R 5V1 taken from Recording No. 20110525_084458, on May 25, 2011 the original of which has been certified in Form 1. ___________________ __________________________________ Date Certified Court Reporter, CRAO