Her Majesty the Queen - v. –, 2014 SKPC 61

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 061 Date: March 12, 2014 Information: 24153718 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and – EnviroGun Ltd. and Clint A. Kimery Appearing: Peter Hryhorchuk For the Crown David MacKay For the Accused RULING ON NON-SUIT B.D. HENNING , J [ 1 ] At the close of the Crown’s case the Accused through counsel made a motion for dismissal of the charge due to a fundamental lack of evidence on an essential part of the charge.

The history and circumstances of this case are reviewed in R. v. EnviroGun Ltd. and Clint A. Kimery, 2013 SKPC 191 . The essential evidence alleged missing, or of no legal effect, in the application is the Environmental Protection Order issued on behalf of the Minister of the Saskatchewan Ministry of the Environment, dated January 11, 2011, addressed to the personal and corporate accused. This prosecution is for the non-compliance with that Order. The Order was exhibited as P-1.

[ 2 ] This Order was issued and signed by Mr. Gerald Wudrich, Manager, Coal and Southern Operations “for and on behalf of the Minister of Environment”. Mr. Wudrich gave evidence and indicated that he was a person authorized to sign such Orders on behalf of the Minister. The Environmental Management and Protection Act, 2002,

Chapter E-10-21, provides as follows, which permits the Minister of Environment to make orders as follows (note

section in italics for emphasis): Environmental protection orders 47 (1 ) Subject to subsection 14(6), the minister may issue an environmental protection order directed to a person requiring that person to take any measures that the minister considers necessary to protect and restore the environment if the minister is of the opinion that the person : (

a) before, on or after the coming into force of this Act has done or is doing anything or carrying out any activity that may cause, is causing or has caused an adverse effect; (

b) before, on or after the coming into force of this Act has contravened or is about to contravene this Act or the regulations, whether or not that person has been convicted of that contravention; (

c) is a person directly responsible for a discharge who has failed to: (

i) prepare a remedial action plan as required by

section 14; (ii) enter into an agreement as required by

section 14; or (iii) comply with the terms of a remedial action plan or agreement approved by the minister pursuant to

section 14; or (

d) is a person to whom

section 9 applies.

(2) The minister shall cause the measures mentioned in subsection (3) to be set out in the environmental protection order.

(3) For the purposes of subsection (1), the minister may, in an environmental protection order, require a person to whom the environmental protection order is directed to do all or any of the following: (

a) investigate the situation; (

b) monitor a substance; (

c) lessen or prevent further discharge of a substance; (

d) contain a substance; (

e) remove a substance; (

f) store a substance and monitor its storage; (

g) destroy or otherwise dispose of a substance; (

h) minimize the effects of a substance on the environment; (

i) remedy any adverse effect; (

j) restore the area affected by the discharge or presence of a substance and the environment to a condition satisfactory to the minister; (

k) maintain records on any matter relevant to: (

i) the discharge or presence of a substance; or (ii) the measures specified in any order made pursuant to this section; (

l) report periodically to the minister, a project manager appointed pursuant to

section 50 or a person designated by the minister with respect to: (

i) any matter related to the discharge or presence of a substance; or (ii) the measures specified in any order made pursuant to this section; (

m) cease or suspend any activity for a period specified in the order or permanently; (

n) take any measure, in addition to or other than one described in clauses (

a) to (m), that the minister considers necessary to: (

i) facilitate compliance with any environmental protection order; or

(ii) protect or restore the environment.

(4) If the minister issues an order directed to a person requiring that a substance be contained or stored, the minister may subsequently issue an environmental protection order to that person to take, with respect to the substance, any of the measures described in subsection (3).

(5) An environmental protection order may specify: (

a) the manner in which the measures are to be carried out and the method or procedures to be used in carrying out the measures required by the order; and (

b) the period within which any measure required by the order is to be commenced and the period within which the order or any portion of the order is to be complied with. [2] The evidence of Mr. Wudrich indicated that he held the position noted in the signature block of the Order, and that he was an official of the Department authorized to sign such orders. He produced a document entitled “Delegation of Authority Environmental Legislation, August 2007” which lists many positions and authorities to be exercised within the Ministry.

He brought attention to page 21 of that document that dealt with persons authorized to issue Environmental Protection Orders by description of position, that is, “Environmental Protection Branch Management”, which would include himself. This would appear to be an internal document for use in the Ministry, as no signature or specific issuing authority is mentioned. [3] Mr. Wudrich also referred to The

Interpretation Act, 1995,

Chapter I-11.2, which provides as follows: Persons who may act for minister 23

(1) Where an enactment directs or empowers a minister of the Crown to do an act or thing, or otherwise applies to the minister by the minister’s name of office, a reference in that enactment to the minister includes: (

a) another minister acting for the minister; (

b) if the office is vacant, a minister designated to act in the office; (

c) the successor in the office of the minister; and (

d) the minister’s deputy minister or a person acting as deputy minister.

(2) Where an enactment directs or empowers a minister of the Crown to do

an act or thing, that act or thing may be done on the minister’s behalf by any person appointed to serve in the department over which the minister presides if: (

a) the minister has, in writing, authorized that person, by name or by office, to do the act or thing; or (

b) that person is appointed to serve in a capacity appropriate to the doing of the act or thing whether or not he or she, or any other person, was authorized by the minister to do the act or thing.

(3) In this section, “department” means a department, secretariat or other similar agency of the executive government of Saskatchewan and includes the Office of the Executive Council. [4] It would appear from the legislation cited and Mr. Wudrich’s own evidence, that he falls within the category of a manager authorized to issue Environmental Protection Orders, which is a delegation of Ministerial authority that is authorized.

It therefore follows that, notwithstanding that the Minister of the Environment has not personally signed the Order in question, the official who did sign it falls within the category of persons authorized to act for the Minister. Accordingly, the Environmental Protection Order, Exhibit P-1, has been validly issued, and the non-suit fails. The Defence will therefore proceed on the next date set for continuation. Dated at the City of Regina, this 12 th day of March, 2014.

______________________________________ B. D. Henning, J