R. v. 374917 B.C. Ltd. Date, 2013 BCPC 76

Citation: R. v. 374917 B.C. Ltd. Date: 20130117 2013 BCPC 0076 File No: 85464-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ELISA AQUILINI, FRANCESCO AQUILINI, PAULO AQUILINI, ROBERTO AQUILINI, CPI-CRANBERRY PLANTATION, GLOBAL COIN CORPORATION, RICHARD MATIS, 374917 B.C. LTD., 374918 B.C. LTD., 374919 B.C. LTD., 374920 B.C. LTD., 374921 B.C. LTD., and 374822 B.C. LTD. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE POTHECARY Counsel for the Crown: E. Lehrer and J. MacAulay

Counsel for the Accused: A. Blair Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: October 15, 16, 17, 18, 19, 22, 24, and 26, 2012 Date of Judgment: January 17, 2013 [ 1 ] THE COURT : Today a guilty plea was entered by one of numerous named accused -- in this case it is 374917 B.C. Ltd. -- to a charge that between the 7th day of May, 2009, and the 20th day of June, 2009 at or near the North Alouette River at or near the City of Pitt Meadows, in the Province of British Columbia, the company did divert water from a stream without authority which is contrary to s. 93(2)(

k) of the Water Act , which is a provincial statute. [ 2 ] The plea has been arrived at after lengthy and ongoing discussions between Crown counsel and defence counsel, who are both extremely experienced counsel, particularly in dealing with matters of environmental law. That is the resolution that they have agreed upon. They have also made a joint submission with respect to sentence which I will deal with shortly. [ 3 ] This company is one that forms part of a much larger corporate organization that is described as the "Golden Eagle Group".

I mention that because in the context of this property located at Pitt Meadows and in and around it notwithstanding that there are numerous owners of different lots owned by the Group, each of those is owned by a different corporate entity.

But they are all related as a family relationship and as corporate relationships although perhaps not necessarily formally. [ 4 ] The submissions that have been made to me, however, and I think is acquiesced in by defence counsel as well, is that it is appropriate to think of this in the context of the Golden Eagle Group, not simply the single numbered company that is the owner of one of several lots to which this charge applies and against which charges were initially laid. [ 5 ] The subject matter of the charge relates to Lot 2 of a particular large subdivision.

It is one of several lots used for agricultural purposes primarily for the cultivation of cranberries.

The many lots are all contiguous and I am told that in looking at them one would not distinguish one lot from the other by fence or any other kind of demarcation; that it is simply like one great big piece of property. [ 6 ] The property is located west of 216th Street and between 136th Avenue and the North Alouette River, so that puts the property north of Pitt Meadows. [ 7 ] The work that is described within the charge relates to the development of a means to obtain water from the North Alouette River and to discharge water back to the North Alouette River by way of pipeline, to be used for the cultivation of the cranberries to fill a reservoir, to be used for irrigation, to be used for flooding for the harvesting, as well as for frost protection. [ 8 ] This is a highly-regulated area of enterprise to obtain water and to interfere with or divert water as it flows in its natural way and is regulated by numerous ministries, both of the federal government in terms of the Department of Fisheries and Oceans, and the provincial government which includes the Ministry of the Environment, the inspection of dikes and water stewardship.

As well, the Municipality of Pitt Meadows owns the dikes over which the pipeline was expected to run. Basically, there is a fairly significant governmental and regulatory series of hurdles that had to be passed in order to be able to divert the water for the purposes I have described in a lawful manner. [ 9 ] The original application was made January 1st, 2007 to the Water Stewardship

section of the Ministry of the Environment. The Ministry of the Environment required input from the federal Department of Fisheries and Oceans. A request was sent from the Ministry of the Environment to them but that seemingly was not received or stayed hidden on a desk because it was not responded to even a year later.

At that time they said they had not seen it and they did no follow-up with respect to it until after the problems arose in the summer of 2009. [ 10 ] There were also letters and communication from Pitt Meadows to the Water Stewardship authority because what had to happen was there needed to be authorization firstly to run the pipe over the dike, and then there also needed to be authorization to install a pipeline and pumping station essentially to move the water from the channel to their storage facilities. [ 11 ] I was provided with a detailed dateline of all of the events that took place in order to obtain all of the necessary permissions, approvals, and permits. [ 12 ] Ultimately, a letter of approval was provided by the Deputy Inspector of Dikes for the Ministry of the Environment approving crossing the dike.

That occurred on June 10th, 2008.

However, there needed to also be a covenant signed as part of the conditions of that approval. [ 13 ] Construction was authorized pursuant to an engineering drawing but that only dealt with the Dike Maintenance Act , that is, the crossing of the dike, not for the works related to the movement of the water. [ 14 ] It noted in the plans that the owner was responsible for all permits and applications from the Ministry of the Environment and the Department of Fisheries and Oceans. [ 15 ] The letter of approval was amended March 4th, 2009 to extend the validity date of that approval to March 1st, 2010 and on April 23rd, 2009 the covenant that had been earlier referred to was signed between Pitt Meadows and the umbrella company, the Golden Eagle Group. [ 16 ] On May 14th, 2009, the Group was asked to provide further plans for water and erosion at the discharge site.

There still was no

approval in place for the work for the pumping and the piping. [ 17 ] On May 19th, 2009, which is approximately the commencement date of the charge as laid, a witness observed work being done on the North Alouette River near the cranberry fields. They reported that to the Department of Fisheries and Oceans. [ 18 ] On May 21st, 2009, another civilian saw somebody digging on the banks of the North Alouette River. [ 19 ] On May 25th, 2009, various reports were received of a large fish kill on the North Alouette River.

It turned out in investigating the reports that that was further downstream than initially reported so it was not at this location. [ 20 ] After the Ministry of the Environment, Environment Canada, and the Department of Fisheries and Oceans all followed up with respect to report, they could not find any dead fish but they were satisfied that whatever had happened in the vicinity of the dike where the work the Golden Eagle Group was doing had no relationship to the possible existence of any dead fish.

In fact, that turned out to be misdirected at this particular corporate group, and they were firmly of the view that the work that had been done would not have resulted in a fish kill such as had been described.

The impact of it however was that it got everybody's attention and that got the various governmental agencies then looking more closely into the work that was indeed being done. [ 21 ] On June 4th, 2009, the farm manager who had the control and management with respect to this agricultural area was quoted in a story in the Maple Ridge Newspaper as saying that a pipe and a pump had been installed in the Alouette River that day.

At that time, there had indeed been permission to put the pipe over the dike but there had not been authorization to install a pump or to dig by the channels to improve water flow. [ 22 ] On June 15th, 2009, another civilian reported seeing a pump installed which obviously was without authority and that it was pumping water full force onto the fields. [ 23 ] On June 18th, 2009 which is leading up to the end of the time period alleged in the Information, two Department of Water employees attended to the location. They saw a pipeline and the intake which is the pump in place without authority.

There was water in the farm reservoir which was inland of the dike. There was water dripping from the pipe and there was apparent excavation in two places on the side channel. [ 24 ] On June 25th, 2009, a letter was sent to the Golden Eagle Group from Water Advisory directing them to stop immediately and to provide confirmation that the works had been rendered inoperable. It was also directed that they were to have a meeting with the Ministry on or before July 10th.

On July 8th a meeting was held. [ 25 ] At the meeting it was agreed that there had been an unauthorized diversion, that the east end of the side channel was connected to the main branch of the Alouette River, and that the intake was constructed in a side channel at the west end of the side channel. In addition, there had also been some clearing done at the connecting point to improve the flow of water from the main channel of the river. [ 26 ] The farm manager acknowledged having set this up on June 4th and having filled the reservoir.

As well, he acknowledged in the meeting that the other changes had been done on June 4th. There was no professional engineer on site as had been required to supervise any work that was being done. The work was done personally by the farm manager and another employee. [ 27 ] On July 17th, 2009, a stop work order was issued for the diversion and the changes.

This was sent to one of the Directors of the several numbered companies including the particular numbered company that has pleaded guilty here. [ 28 ] There were a variety of ongoing other meetings and ultimately it was confirmed that they had complied with the stop work order or the stop usage order I suppose I could call it.

They acknowledged having made the changes without authorization including under the Water Act to divert water from the stream. [ 29 ] The description given of the use of the works included that on June 5th, 2009 when water was drawn from the channels, the pump had been operated and water in the quantity of 1 to 1½ million imperial gallons was obtained from the channel. [ 30 ] In the course of an interview that occurred August 2009 with the farm manager, he indicated that he had understood the approval from the Municipality of Pitt Meadows to be all the approval that was needed to complete the approval.

He said that he only found out later that there were still all the other approvals that had to be given and that had not been given by the time of the work being done. [ 31 ] There was an urgency from the perspective of the Golden Eagle Group at the time that this diversion of water took place. That particular spring and early summer were described as being extremely dry, essentially a drought, and the fields were in significant need of water.

The farm manager, recognizing the urgency of the situation in terms of what was planted and what was expected as a harvest, and relying on the single approval for the pipe to run over the dike, moved forward with dispatch so as to save the fields, without paying particular attention to what other authorization he needed. [ 32 ] The charges in this matter were sworn February 24th, 2011 and a Summons date of March 17th, 2011 for first appearances in Court.

While that remained outstanding, on June 24th, 2011, the Golden Eagle Group continued their communication with the various regulatory authorities and approval was received from the Water Stewardship Division pursuant to their application for short term use. The conditions for the approval were that the water was to come from the side channel; it was to be used for flood harvesting, frost protection, irrigation, and storage.

The works permitted included a screened intake pump, pipe, reservation irrigation systems, et cetera, and the maximum amounts of water that could be drawn for particular purposes at different times per year were set out. I am told that they did use the water during that time and they complied with the requirements of that permit. That was all done during the period that this matter was awaiting trial. [ 33 ] I have been advised that one of the reasons for this being a short-term use permit is that the government uses these permits as a

means of data collection and that it is not untypical for them to be given on an annual basis as opposed to a long-term permit. [34] I am advised by counsel for the numbered company that this particular issue has had perhaps a bit of a salutary effect withrespect to the Golden Eagle Group. In particular, it was noted to me that the representative of the company who is in attendance heretoday and who is a very senior person within the whole corporate structure, has taken on as part of his responsibilities what is describedto me as the overarching responsibility for managing regulatory affairs.

That is evident in that he also was present at the meeting thattook place in August 2009 where the farm manager was interviewed.

So there is no doubt in the mind of the Golden Eagle Group thatregulatory offences are serious matters and regulatory requirements must be adhered to. [35] It was noted by counsel for the numbered company that this was a remarkably long process in order to get all of the approvalsthrough and at least some of the delay – I do not know if it was a normal delay or not – but some of the delay can be attributed to themissing contact from the original application going to the federal Department of Fisheries and Oceans who were not able to account foreven having received it although it was a governmental authority's duty to send it to them. [36] So not all of the delay can be attributed towards actions of the defendants and perhaps not a great deal of the delay can beattributed to them.

It may be that some things, particularly in terms of environmental regulations, simply take a long time to get to apoint where there is a resolution and applications that are made can be confirmed or authorized. [37] In all of that nonetheless, the defendants accept that there was an obligation to obtain the required permits. They failed to dothat and they accept full responsibility for that. [38] I should say that there has been a joint submission with respect to sentence on this matter, that being a fine of $1,000 pursuant tos. 93(4) of the Water Act, and then pursuant to s. 95(1)(

e) that I order the payment of $54,000 to the Habitat Conservation TrustFoundation. There is a very specific

section in this legislation providing for creative sentencing where: ... the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order containingone or more of the following prohibitions, directions or requirements: ... (

e) directing the person to pay an amount of money the court considers appropriate to the trustee under

Part 3 of the Wildlife Act forinclusion in the trust property, as that term is defined in

section 118 of that Act.... [39] Counsel expanded on the functioning of that

section in a practical sense and I have been told that by directing funds to theHabitat Conversation Trust Foundation which is the trustee here that develops a fund that is then drawn on by various groups withenvironmental purposes. Grants can then be made from the fund to assist those ends which certainly is directly related to the offence thatis here and would seem to have a very high societal value. [40] A number of cases have been supplied to me. I think they are probably the seminal cases as it relates to environmentaloffences.

I am not going to refer to all of them. [41] I will simply indicate that the cases that I was given were Her Majesty the Queen v. Shamrock Chemicals Ltd., which is adecision dated February 13, 1989 from the Ontario Provincial Court as I believe it was at that time. It is a case referred to in almost allof the other cases. In addition, R. v. Gulf Canada Corporation which is from the Territorial Court of the Northwest Territories datedAugust 13, 1987. Also, the decision of R. v. Placer Development Ltd., which is from the Northwest Territories Supreme Court datedMarch 19, 1982 and in this vein, R. v.

Abbott, a decision of the British Columbia Supreme Court, 2005 BCSC 1523. Those all speak ofthe principles that are a part of the sentencing. It is clear from these cases that individual and general deterrence are the primaryconcern. [42] In addition, I was provided with three cases which are a little disconcerting in that the first is the decision in R. v. (twonumbered companies) carrying on business as Extension Dairy Farm and Roberto Aquilini a decision of this Court July 9, 1998 fromPort Coquitlam, then the decision of R. v.

Golden Eagle Ranch Inc., again a decision from this Court, 2003 BCPC 206 , 2003BCPC 0206, and R. v. 364744 B.C. Ltd., again a decision from this Court and in this courthouse, File 75656-1 decided November 14,2007. [43] Although the defendants in these all have different names, they are all part of the Golden Eagle Group. So while none of thedefendants in any of those cases or this case individually has been convicted previously of any kind of similar offence, there isnonetheless the relationship that makes it clear that this Group is not a stranger to regulatory offences. [44] The decision of R. v.

Golden Eagle Ranch Inc., supra, makes a couple of references to principles. I am going to refer to theseonly briefly because they are well stated, but at para. 7 The Honourable Judge Buller Bennett says: [7] It is important that the sentence adequately address both general and individual deterrence. It must cause the company,specifically and others generally, to conscientiously carry out their duty to inform themselves of the relevant legislation and to complywith that legislation. Also, the sentence cannot be or seen to be a form of business tax for illegal behavior.

Certainly, the sentence mustdenounce behavior such as this because it amounts to flouting of the law. Finally, the sentence must provide for some reparation forharm done. This is particularly challenging when the harm done cannot be entirely undone. [45] I note that here there was no harm done that is attributed to this so that particular line is not totally applicable. [46] I am going to leave it at that, but it does give the overall sense of the situation.

The cases were carefully reviewed by counseland counsel agree that the principles as provided to me are indeed the guiding principles here. [47] The final guiding principle to be considered is that with respect to joint submissions. Courts are loathe to interrupt or interferewith joint submissions, particularly when they are made after obviously substantial discussion between experienced counsel who arewell-informed of the cases and the principles involved.

[ 48 ] I am satisfied that in fact the submission that has been put forward here as a joint submission is one that I should follow. I did give some thought to it over the break as to whether to increase the amount of money or not given my concerns about the Golden Eagle Group perhaps being a bit casual from time to time with respect to these regulatory matters.

However, I am satisfied that since there is now a senior management person who has been given the specific authority and responsibility to deal with regulatory matters, that the Golden Eagle Group as a whole will understand the necessity of their responding in full to all regulatory requirements and not taking any shortcuts in essence. [ 49 ] That being the case, the fine then with respect to this matter is $1,000.

This is a provincial statute so there is a victim fine surcharge of $150.00. [ 50 ] I am ordering that $54,000 be paid to the Habitat Conservation Trust Foundation. [ 51 ] I am going to order that all of these are to be paid on or before January 31st, 2013. [ 52 ] Are there any questions about anything? [ 53 ] MR. LEHRER: Your Honour, as is my practice, I will draft the order and I will send it to my friend for his endorsement and it will make its way to Your Honour in due course for Your Honour's signature. By way of housekeeping, Your Honour, Mr.

Matis did not attend on November 1st, the Crown asks that the non-appearance be noted and the bench warrant application adjourned to today's date. [ 54 ] THE COURT: So you are withdrawing your application on that –- [ 55 ] MR. LEHRER: Yes. [ 56 ] THE COURT: -- and the other charges – all the other counts and all the other – the other accused on Count 2, those charges are stayed? [ 57 ] MR. LEHRER: Yes, a stay of proceedings on all Counts 1 and 3 through 11 are all parties, and Count 2 all parties save and except 374917 B.C. Ltd. which has pleaded guilty. [ 58 ] THE COURT: That is on Count 2. [ 59 ] MR.

LEHRER: Yes. [ 60 ] THE COURT: All right. Thank you, everybody. (ORAL REASONS FOR SENTENCE CONCLUDED)