R. v. Blackwell Date:, 2012 BCPC 366

Citation: R. v. Blackwell Date: 20120904 2012 BCPC 0366 File No: 91503 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. EDWARD JAMES BLACKWELL and E.J. BLACKWELL HOLDINGS LTD. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Mr. J. Gold Counsel for the Accused: Mr. M. O'Neill Place of Hearing: Kamloops , B.C. Date of Hearing: July 9 and 12, 2012 Date of Judgment: September 4, 2012

[ 1 ] I have before me Edward James Blackwell and E.J. Blackwell Holdings Ltd. for sentencing with respect to convictions pursuant to Count 1 and Count 3. [ 2 ] As I found in my Reasons for Judgment, the Defendants did not turn their minds properly to what the permits allowed and showed a lack of due diligence required. [ 3 ] Following my Reasons for Judgment on the trial, this conduct continued through May and June. However, the most recent inspection report shows considerable improvement and compliance. [ 4 ] The Crown seeks $50,000 total in penalties broken down as follows:

a) Count 1 – to Mr. Blackwell personally the sum of $20,000 comprised of a $1,000 fine and a $19,000 contribution to the Habitat Conservation Fund;

b) Count 1 – to E.J. Blackwell Holdings Ltd. the sum of $15,000 comprised of a $1,000 fine and a $15,000 contribution to the Habitat Conservation Fund;

c) Count 3 – to Mr. Blackwell the sum of $10,000 comprised of a $1,000 fine and a $9,000 contribution to the Habitat Conservation Fund; and

d) Count 3 – to E.J. Blackwell Holdings Ltd. the sum of $5,000 comprised of a $1,000 fine and a $4,000 contribution to the Habitat Conservation Fund. [ 5 ] The rationale for the penalty sought comes in part from the profits Blackwell Holdings Ltd. enjoyed from the unlawful deposit of demolition waste. The Crown submits that the profits were at least $42,400 based upon an invoice rendered to one client and the amount that the Crown estimates would have been received from the Days Inn demolition based on similar charges.

Obviously if there were others dumping waste at the site unlawfully in this time then there were profits from them as well. That information is not available to the court. The Crown submits that the penalty cannot be merely a cost of doing business. The offender should not be permitted to keep profits. [ 6 ] The maximum penalty allowed under Count 1 is $1,000,000 for every day of the offence. For Count 3, the maximum is $300,000 total.

The penalties sought here are considerably lower than either maximum. [ 7 ] The Crown submits that aggravating factors include a two year period over which a significant quantum of material was dumped. While there has been no actual environmental damage done, there have been bear attractants and bears evident. Additionally, the hazards do present potential for actual damage. The Crown submits there has been no remorse expressed or any attempts to comply since the charges were laid.

In addition to the profits received from the unlawful waste being dumped, the Defendants also have the benefit of the reclaimed arable land fast tracked by the deposit of this unlawful waste. [ 8 ] The Crown concedes the mitigating factors include the positive results of the reclamation to arable farm land. Neither Defendant has any record for environmental offences. The Crown concedes that the Defendants are otherwise good community citizens. [ 9 ] The Defendants seek much lower fines. They seek a $5,000 global fine for Count 1 and a $1,500 to $2,000 global fine for Count 3.

The rationale for a global fine is that Mr. Blackwell is essentially E.J. Blackwell Holdings Ltd. [ 10 ] The Defendants say that the outcome is not one of damage but of reclamation. They disagree there is a potential future risk because the landfill is finished, properly covered and seeded. The access to the landfill is now restricted with large signs to serve as a deterrent. [ 11 ] The Defendants also argue that profits and revenues are not the same. Of the $42,000 in profit the Crown says the Defendants made, the net receipts before taxes is really $28,000.

The Defendants also argue that the Crown does not consider the cost of processing the waste loads. They submit that it would have taken 13 days at $1,500 per day to process that waste. Consequently, the profit would only have been about $4,000 or $5,000. Although there is no evidence of this before me, I am asked to accept the figures bearing in mind that the Thompson Nicola Regional District operates its landfills at a deficit.

This evidence is not before me either. [ 12 ] The court is urged not to defer to public outcry but to ensure that the punishment fits the crime. [ 13 ] The Crown argues that the issue of reclamation is not as simplified as the Defendants make it seem. The Ministry of Environment needs to know what is in the landfill. In this case, much has been deposited which ought not to have been. The Crown also says that the profit generated to the Defendants would also have been increased by the profits earned filling the trucks with gravel on their return from the landfill. Those figures are not before me either. Mr.

Blackwell said that the landfill does not make a profit. The gravel operation does have profits but they are minimal. [ 14 ] Mr. Blackwell advised the court that he has not taken in any demolition waste since the judgment. His operator had been sick for a couple of weeks which meant that it took longer to bring the landfill into compliance. He said the landfill is no different than how he wants to leave all of his landfill. His primary aim is to reclaim land for farming. [ 15 ] I must consider as a factor that the violations were wilful. Mr.

Blackwell had a number of personal issues going on at the same time as the Ministry of Environment was addressing the non-compliance. He was also stubbornly adhering to what he believed to be the

proper

interpretation of the permits. There is also a degree of lack of remorse. However, the most significant mitigating factors are thatthe landfills are now in compliance, and that the purpose of the landfills is not to generate profit but to reclaim farm land. [16] As with any offence, there must be deterrence. The Defendants should not be permitted to profit from the offences nor shouldthe penalties merely be a cost of doing business. [17] I was provided with a number of decisions: R. v. United Keno Hill Mines Ltd. [1980] Y.J. No. 10; R. v.

Daniel Ambrosi &Valleyview Enterprises Ltd. 2011 BCPC 452 , 2011 B.C.P.C. 0452; R. v. Ferguson 2004 BCPC 592 , 2004 B.C.P.C.592; R. v. Angelillo [2006] 2. S.C.R. 728, 2006 SCC 55 , 2006 S.C.C. 55; and R. v. Robert Seraphim (B.C.S.C.). [18] In United Keno Hill Mines Ltd., the accused had been previously convicted for an environmental violation and had considerablecorporate assets. As in this case, there was no satisfactory evidence with respect to the advantage gained. There was unsatisfactoryevidence relating to damages as well.

The court highlighted the nature of the environment itself, the extent of the damage, the wealth ofthe accused, the criminality of the offence, the prior record and profit. The penalty imposed was a $1,500 fine. At paragraphs 9 and 10,the court said this in part: 9 Pollution is a crime. Pollution has been directly linked to causing or aggravating a number of serious illnesses... There are manystories to be told about the calamitous nature of pollution generating activities; the acid rain story is the current favourite...

Snow andrain in many parts of North America are ten times more acidic than clean precipitation. It is not uncommon to find readings of a forty-fold increase in acidity. The consequences for human health, forests, lakes and rivers is staggering... Such degradation of theenvironment adversely affects tourism, forestry operations and other economic activities related to natural resources... The ramificationsof disturbing the balance of nature are never fully understood until it is often too late.

Seemingly small consequential acts of pollutionare cumulatively imposing extensive tangible social costs... 10 The range of inherent criminality in pollution offences can be extreme. Actions may be negligent or premeditated and theramifications may range from trivial littering offences to offences precipitating untold destruction to resources, property and in somecases death.

Each offence must be sentenced in accord with its specific facts - but pollution offences must be approached as crimes, notas morally blameless technical breaches of a regulatory standard. [19] The potential for damage must be a factor to be considered on sentencing. In this case, leachates, fires, and pollution are aconcern. This is not only existing but potential damage. I must bear in mind, however, that despite these potential damages, theDefendants have been urged by the Ministry to get a variation on their permit not to necessarily simply cease this type of dumpingentirely.

Presumably such a variation would come with direction respecting how to avoid those potential risks. [20] In Ambrosi, a fire occurred at the landfill. The fire quickly flared up. There was waste material in the landfill which had beenleft uncovered for approximately three weeks. This contributed to the extent of the fire. The fire occurred during our local fire seasons,and emitted toxic smoke and burning embers close to a residential subdivision. The court found there were very few attempts to complywith the requirements for compaction and coverage, and none at all in relation to filing the annual reports.

As in this case, the reports atthe time of sentencing showed that improvements were being observed both with respect to filing the annual reports and with respect toimproved coverage and compaction. There was evidence before Judge Cleaveley of the significant revenues enjoyed by that accused. The landfill itself was also worth considerable amount of money. No such evidence was put before me in this case. As with Mr.Blackwell and E.J. Blackwell Holdings Ltd., the corporate Defendant did not have a prior conviction.

However, its principal, Mr.Ambrosi had previously been convicted under the Waste Management Act. [21] In his analysis, Judge Cleaveley applied the principles set out in United Keno and in Ferguson. In Ambrosi, the landfill washighly visible and in a sensitive location within the city. There was high potential for harm considering the location, high winds and thetime of year the fire occurred. [22] Respecting whether it would be appropriate to impose a separate fine against each of Mr. Blackwell and E.J.

BlackwellHoldings Ltd., I repeat the sentiment found in Ambrosi that each stand in their own individual capacity. However, in Ambrosi, there wasonly one source of funds. Mr. Blackwell is also engaged in a gravel operation with modest profits and with a dairy farm. In Ambrosi,Judge Cleaveley ordered a restitution order to the City of Kamloops for the fire fighting costs. He imposed a fine of $10,000 against thecorporation and a $5,000 fine against Mr. Ambrosi for the environmental charge. For the failure to file annual reports, the fine againstthe company was $2,500 and $1,000 against Mr.

Ambrosi. [23] In Ferguson, Mr. Ferguson was operating a landfill in the City of Delta. A fire broke out in an area of the landfill that was notin compliance. The fire eventually led to a state of emergency being declared in Delta. Additionally, the landfill was adjacent to BurnsBog, a sensitive and unique environmental area. At the time of sentencing, the court did not have evidence before it indicating what thecause of the fire had been. There was a joint submission before the court for a $75,000 fine. The court acceded to that penalty as “onewith teeth”.

In that decision, Judge Challenger noted that vicarious liability exists under the Act to ensure compliance by the operatingminds of corporations so that they cannot hide behind the corporate veil. In that case, the court also considered that Mr. Ferguson hadbeen a contributing member to the community, had lost his businesses and had been forced into bankruptcy. He was also involved inongoing litigation. [24] In Seraphim, water and cyanide was spilled from a mining operation. The trial judge put a significant amount of emphasis onthe cost to the public for remediation.

At page 9, the court sites from Ruby on Sentencing, Third Edition at page 200:

The courts have been careful to preserve their independence from public clamour.

We have no means of measuring public opinion;; [sic] the people have elected representatives and political parties to give expression to their opinion by constitutional means; it is the task of an independent judiciary to administer and apply the law without fear or favour and without being influenced by any outcry no matter how much media support may accompany it. [ 25 ] While it is true that public outcry cannot impact a sentence, it is equally clear that the courts have long had a view to the public concerns in addressing sentencing. This was evident in the quote I included it from United Keno above.

In Seraphim , the court imposed a $5,000 fine in respect of each count. [ 26 ] The environment in this case is farm land adjacent to natural habitat and residential neighbourhoods. The landfill operation is itself not a business for the sake of operating a landfill, but an operation to reclaim arable farm land. There has been no actual damage and all of the remediation has been done at the cost of these Defendants. The bear attractants and other improper deposits to the landfill have now been removed. The Crown set out the potential damage that existed before the remedial work was undertaken. Mr.

O’Neill argued that it did not actually come to fruition. That is not entirely accurate. Bears did cross through the landfill. The improperly prepared slopes partially collapsed when water used to fight an unrelated fire eroded the slopes. Mr. O’Neill also argued that transvaporation makes leachates literally unlikely to result. However, there was no scientific evidence before me of this either way. Fortunately, no environmental damage of a lasting nature appears to have occurred. [ 27 ] Angelillo was provided to me by Mr.

O’Neill for the purposes of arguing that the May and June reports showing continued non- compliance should not be available to me for the purposes of sentencing under s. 725(1)(c). However, he does wish me to consider the July report which shows compliance. Mr. Gold argued that it is proper to rely upon the May and June reports because they indicate a lack of remorse. [ 28 ] The principles set out in Angelillo do not apply to this case. As Mr. Gold said, the May and June reports are a reflection of remorse or lack of it. Neither Mr. Blackwell nor E.J.

Blackwell Holdings Ltd. can be penalized for the failures indicated in those reports. They are only factors for me to weigh on sentencing. Similarly, the compliance reflected in the July report is a mitigating factor I must consider. [ 29 ] I am also asked to consider the wealth of the accused. I do not have proper evidence before me from either the Crown or the accused to satisfy myself of what that may be. E.J. Blackwell Holdings Ltd. operates the landfill and a gravel operation. Its profits are modest. Mr. Blackwell has an interest in E.J. Blackwell Holdings Ltd. as well as the Blackwell Dairy Farm.

The value of those assets are not before me. I only have evidence of the profits which would have been earned from the two demolition projects put in evidence at the trial. Those profits do not reflect profits so much as they reflect revenue. Mr. O’Neill is correct to say that the costs of the operation have not been taken into account in assessing those profits. It goes without saying that any profits must reflect revenue less operating costs. [ 30 ] I otherwise agree with Mr. Gold that any penalty imposed must be more than a cost of doing business. Mr.

Blackwell said that the profit from the impugned demolition waste was a modest $5,000. I have no evidence before me to show whether he has put the same due diligence into this assessment as he did into compliance with his permits. Consequently, I cannot determine whether that is an accurate estimate of profits.

It would be improper for me to impose a modest disposition when there is a dearth of evidence before me respecting the actual profits and relative wealth of the two Defendants. [ 31 ] With respect to the criminality, I do not consider the period that the Ministry of Environment largely ignored whether there was any compliance at this landfill. However, once Mr. Rhebergen began conducting his inspections at the landfill, Mr. Blackwell and E.J. Blackwell Holdings Ltd. were resistant to his attempts to bring them into compliance.

It was only after they were found guilty of these charges that there was any substantial compliance. That being said, there is no prior record for either Defendant. [ 32 ] The fine sought by the Crown does not reflect the reality of the profits. I would otherwise find that the approach taken was entirely appropriate. However, the fines proposed by Mr. O’Neill do not reflect the gravity of an environmental offence in the context of these facts. With respect to Count 1, I impose a fine of $5,000 each to Edward James Blackwell and E.J.

Blackwell Holdings Ltd., with $1,000 each to be paid by fine and a $4,000 contribution each to the Habitat Conservation Fund. With respect to Count 3, I impose a disposition of $1,500 each, to be comprised of a $500 fine each and a $1,000 contribution to the Habitat Conservation Fund each. _______________________ S.D. Frame Provincial Court Judge