R. v. Olfert Date:, 2013 BCPC 216

Citation: R. v. Olfert Date: 20130812 2013 BCPC 0216 File No: AH00021080-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA R. v. PATRICK OLFERT REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H. W. GORDON

Appearing for Crown : Sgt. Michael deLaronde Counsel for Disputant: Albert E. King, Q.C. Place of Hearing: Nanaimo , B.C. Dates of Hearing: April 16, July 6, October 29, 2012; February 21, 2013 Date of Judgment: August 12, 2013 Introduction [ 1 ] This is a case of burning material in the backyard of a residence in the Nanaimo area. The issue is whether the burning falls within the provision of the Environmental Management Act under which the Disputant was charged, and if so, has the Crown proved its case. [ 2 ] Mr.

Olfert was charged with introducing or allowing to be introduced into the environment on October 15, 2011, waste produced by a prescribed activity or operation contrary to section 6(3) of the Environmental Management Act. Many of the provisions in the

section are defined terms. [ 3 ] Mr. Olfert was demolishing his house which had previously been damaged beyond repair by fire in order to construct a new dwelling. He lit a fire in the backyard of the residence. What the material that was burned is an issue in this case. Legislation [ 4 ] The analysis of this case requires consideration of several statutory provisions. [ 5 ] Environmental Management Act

Part 2 — Prohibitions and Authorizations Waste disposal 6 (1)… . (2) … .

(3) Subject to subsection (5), a person must not introduce or cause or allow to be introduced into the environment, waste produced by a prescribed activity or operation. [ 6 ] Waste Discharge Regulation

Interpretation 1 In this regulation: "Act" means the Environmental Management Act ; Prescribed industries, trades, businesses, operations and activities 2

(1) The industries, trades and businesses, and classes of industries, trades and businesses, listed in the Table in

Schedule 1 and in column 1 of the Table in

Schedule 2 are prescribed for the purposes of section 6 (2) of the Act.

(2) The activities and operations , and classes of activities and operations, listed in the Table in

Schedule 1 and in column 1 of the Table in

Schedule 2 are prescribed for the purposes of section 6 (3) of the Act .

Schedule 1 Definition 1 In this Schedule: "burning" means the combustion of material without using a stack or chimney to vent the emitted products of combustion to the atmosphere;

"incineration" means the controlled combustion or thermal decomposition of material using a stack or chimney to vent the emitted products of the combustion or thermal decomposition to the atmosphere, and includes pyrolysis and gasification. Industries, trades, businesses, operations and activities defined 2 In this Schedule: "burning or incineration of waste" means the burning, partial burning or incineration of waste material generated from an industry, trade or business; "municipal solid waste management" means activities and operations for the management, treatment or discharge of refuse that (

a) originates from residential, commercial, institutional, demolition, land clearing or construction sources, or (

b) is included in a waste management plan; Table Industries, Trades, and Businesses, Operations and Activities 7 Burning or Incineration of Waste 25 Municipal Solid Waste Management The Facts [ 7 ] There was evidence of dealings between Mr. Olfert and the Conservation Officer Service in Nanaimo before October 15, 2011 in relation to this property and burning of material, often as a result of complaints by neighbours.

But this evidence is background and is not directly relevant to the issue which decides this case. [ 8 ] The evidence which is relevant is what occurred on October 15 and it is that on which I make my findings. [ 9 ] Mr. Olfert owns a lot in the Wellington area south of Nanaimo on which sits a house. The area is semi-rural but the lot is on a street on which there is a row of houses, the proximity of each being what you would commonly find in an older residential neighbourhood. [ 10 ] Prior to October 2011, Mr. Olfert was absent and not living in the house and it was occupied by others.

During that time, there was a fire in the house that rendered it uninhabitable. [ 11 ] When Mr. Olfert returned he began to demolish the house himself, in order to construct another on the same site. [ 12 ] From the evidence it appears that as portions of the house were demolished, the material was piled in the back yard and some of it was burned. This burning generated complaints by neighbours to the Conservation Officer Service. A conservation officer, Stuart Bates, visited the site several times in response and spoke either to Mr.

Olfert or to others at the site to advise them of what could and could not be burned. On one occasion, Mr. Bates left his business card and advised that if he had any questions to call him and he would make a visit. [ 13 ] This takes us to Saturday, October 15, 2011. On that morning, Mr. Olfert called Mr. Bates’ office number. No one answered and so Mr. Olfert left a voice message advising that he would be burning some books and that he would not be burning anything he was not supposed to be burning.

I have restated the substance of the message in language more suited to a public judgment than the actual words used. Mr. Bates was unaware of this message until he returned to his office on October 17. [ 14 ] Later on October 15, Mr. Bates, while off duty, was advised by the service that runs the RAPP program that someone had phoned in to complain about unauthorized burning. He suspected from the location that it was Mr. Olfert’s property. On his way home from the south part of the Island, Mr. Bates drove by the property. He drove along a road that borders the back of the property.

This border has a row or grove of trees along the roadside that hid a direct view of the back yard from the road. [ 15 ] Mr. Bates saw smoke rising, stopped his vehicle, found a location at the edge of the road he estimates was about 50 metres from the location of the smoke to make observations. This location was at the side of the road and the back yard could be seen through a gap in the foliage of the trees. Using his iPhone, he filmed the backyard.

A copy of this film, as well as still photos made from it, was entered into evidence. [ 16 ] The photos show a considerable amount of demolition debris piled or scattered throughout the yard. A good deal appears to be pink insulation and old lumber consistent with a house being demolished. Amongst all of this debris is a small pile from which a wisp (my description) of smoke rises. Except in one picture, no flames can be seen and the smoke is consistent with a fire that has essentially burnt out or is smoldering. On top of this pile, at an angle, is a large white sheet or panel. Mr.

Bates thought it was wood or plastic (prohibited material to burn). Mr. Olfert’s counsel suggested to Mr. Bates in cross examination that it might be an aluminum sheet. Mr. Bates agreed it could be. Clearly, from the pictures, because of the distance, one cannot determine what is or was being burned.

[ 17 ] I find as a fact that Mr. Olfert burned or caused to be burned material of indeterminate description which produced smoke into the air. Whatever the material was, it did not appear to be books or other paper material. But the evidence is not clear enough to say it was not paper material. [ 18 ] On December 13, 2011, Mr. Bates issued a Violation Ticket to Mr. Olfert. He is charged with one offence: contravening section 6(3) of the Environmental Management Act on October 15, 2011. Analysis [ 19 ] On my analysis of the legislation, and as argued by Mr.

Olfert, the pith of the case is whether whatever was introduced into the environment by the open fire on his property was produced by a prescribed activity or operation. [ 20 ] In legislative language, prescribed means prescribed by regulation. [ 21 ] To determine what activity or operation is prescribed, one must turn to the Waste Discharge Regulation . [ 22 ]

Section 2 of the Regulation , under the head note “Prescribed industries, trades business, operations and activities” is the provision that prescribes the activity or operation. [ 23 ] Before proceeding further, I should point out that references to sections of each portion of the Regulation become confusing because of the number of “2”s throughout. [ 24 ] Section 2(1) of the Regulation addresses industries, trades and businesses. Section 2(2) addresses activities and operations. It is section 2(2) that has application here, as Mr.

Olfert is neither an industry, trade nor business. [ 25 ] Section 2(2) of the Regulation provides that the activities and operations, or classes of activities or operations, listed in the Table in

Schedule 1 and in column 1 of the Table in

Schedule 2 are prescribed for the purposes of section 6(3) of the Act. It is only the Table in

Schedule 1 that can have any application here. [ 26 ] I was not directed to any other provision that prescribes an activity or operation for the purposes of section 6(3) of the Act. [ 27 ] The Table in

Schedule 1 is headed “Industries, Trades and Business, Operations and Activities”. [ 28 ] Mr. deLaronde was firm that the prescribed activity or operation that took place on Mr. Olfert’s property on October 15, 2011 was ‘Municipal Solid Waste Management’, numbered 25 in that Table. [ 29 ] But before continuing with my analysis of municipal solid waste management, I will address another activity listed in the Table: number 7 – “burning or incinerating of waste”. [ 30 ] In its ordinary meaning, that phrase might correctly describe what Mr.

Olfert was doing. “Waste” is defined in the Act as “including … litter and … refuse”. He was burning refuse (also defined, as meaning “discarded or abandoned materials, substances or objects”). [ 31 ] However,

section 2 of the

Schedule defines “burning or incineration of waste” as “means the burning, partial burning or incineration of waste material generated from an industry, trade or business”. And so the ordinary meaning has been replaced by a more restricted statutory meaning, which qualifies the activity to that “generated from an industry, trade or business”. [ 32 ] Returning to “Municipal Solid Waste Management”, that term is defined in

section 2 of the

Schedule to mean “activities and operations for the management, treatment or discharge of refuse that either originates from residential, commercial, institutional, demolition, land clearing or construction sources or is included in a waste management plan”. [ 33 ] In its context, I can only interpret that definition to apply to a municipally operated or managed facility for managing, treating or discharging refuse.

The burning of material on a residential property by the property owner does not, in my view, fall within that description. [ 34 ] Firstly, the burning of refuse of the type in this case does not, in my view, fall within the meaning of “management, treatment or discharge”.

This is particularly so as the burning of waste originating from residential, commercial or institutional sources or from demolition, land clearing or constructions sources is the next item in the table and that applies only to establishments engaged in that activity, not an individual on his residential property. [ 35 ] Secondly, the whole of the definition, in its context, suggests to me to apply to a commercial or institutional operation. I am reinforced in this view by a reading of the

definitions of each of the other 39 “industries, trades, businesses, operations and activities” listed in the Table, all of which appear to be of a commercial or industrial nature. Decision [ 36 ] Returning to the charging section, section 6(3) of the Act , whatever waste Mr. Olfert introduced in the environment on October 15, 2011, it was not waste produced by a prescribed activity or operation. [ 37 ] For this reason, I find Mr. Olfert not guilty of that of which he is charged.

_________________________ H. W. Gordon, Judicial Justice