R v Envirogun Ltd., 2021 SKCA 144

Court of Appeal for Saskatchewan Docket: CACR3244 Citation: R v Envirogun Ltd., 2021 SKCA 144Date: 2021-11-08 Between:Envirogun Ltd. and Clint KimeryApplicants/Prospective AppellantsAndHer Majesty the QueenRespondent/Prospective RespondentBefore: Caldwell, Whitmore and Barrington-Foote JJ.A.Disposition: Application dismissedWritten reasons by: The Honourable Mr. Justice Barrington-FooteIn concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice WhitmoreApplication heard: October 19, 2021Counsel: David MacKay for Envirogun Ltd.

Clint Kimery on his own behalf Andrew Davis for the Respondent Barrington-Foote J.A. I. INTRODUCTION [1] On February 5, 2015, Envirogun Ltd. and Clint Kimery were convicted of failing to comply with an EnvironmentalProtection Order [EPO] pursuant to s. 74 of The Environmental Management and Protection Act, 2002, SS 2002, c E-10.21 [Act] (now TheEnvironmental Management and Protection Act, 2010, SS 2010, c E-10.22): R v Envirogun Ltd., 2015 SKPC 18.

The EPO had, prior tothe conviction, been the subject of an unsuccessful appeal by the prospective appellants pursuant to s. 54 of the Act: Envirogun Ltd. vSaskatchewan (Environment), 2011 SKQB 339, 394 Sask R 21. The decision in that appeal was affirmed by this Court in Envirogun Ltd. vSaskatchewan (Environment), 2012 SKCA 73, 399 Sask R 69 [Envirogun CA 2012]. [2] Envirogun and Mr. Kimery appealed their conviction to the Court of Queen’s Bench. In R v Envirogun Ltd., 2016 SKQB 258,[2016] 12 WWR 357 [Envirogun QB 2016], a

summary conviction appeal judge found that the trial judge had erred by refusing to permitthe prospective appellants to challenge the validity of the EPO in defence of the charge. That decision was reversed in R v Envirogun Ltd.,2018 SKCA 8, [2018] 3 WWR 247 [Envirogun CA 2018]. There, this Court found that the

summary conviction appeal judge had erred, asthe Legislature did not intend that a person could collaterally attack an EPO in the course of a prosecution for non-compliance with theorder. In the result, this Court allowed the appeal and remitted the matter to the Court of Queen’s Bench to deal with issues that had notbeen addressed in Envirogun QB 2016. [3] On March 25, 2019, a judge of the Court of Queen’s Bench [appellate judge] dismissed the prospective appellants’ convictionappeals: R v Envirogun Ltd., 2019 SKQB 89, [2019] 9 WWR 303 [Envirogun QB 2019].

On April 24, 2019, they applied to this Court forleave to appeal Envirogun QB 2019. Their grounds of appeal include the allegation that the appellate judge erred in finding that they hadnot established the defence of due diligence or impossibility. [4] The application for leave to appeal Envirogun QB 2019 has not yet been heard. Mr.

Kimery has nonetheless applied pursuantto s. 683(1) of the Criminal Code for an order appointing a special commissioner to inquire and report as to whether the Ministry ofEnvironment [MOE] and the Crown have failed to disclose documentary evidence that would have been relevant to their defences of duediligence or impossibility. Envirogun appeared at the hearing of this application and made submissions in support of Mr. Kimery.

Thegoal of the application is to unearth evidence which would be the subject of a fresh evidence application on appeal. [5] For the reasons that follow, I have concluded that the s. 683 application is without merit and must be dismissed. II. BACKGROUND [6] This is not the first application to obtain this potential fresh evidence by Mr. Kimery. Both he and Envirogun applied to ajudge of this Court in Chambers on October 27, 2020, for an order for further disclosure pursuant to R v Stinchcombe, (SCC), [1991] 3 SCR 326 [Stinchcombe]. This Stinchcombe application sought the following documents: (

a) Journals or other records containing the notes kept by MOE employees of their daily actions; (

b) Documents relating to proposed amendments to the Act; (

c) Internal reports on file with the MOE relating to the operation of the waste handling facility at issue; (

d) The MOE accounting case number used to identify the prospective appellants and the activity codes used to identify the typeof work undertaken by MOE employees; and (

e) Documents relating to the delegation of authority by the Minister to certain MOE officials.

[7] The Stinchcombe application was decided by Ottenbreit J.A. in a March 19, 2021, fiat. Justice Ottenbreit there noted the legalprinciples that were engaged: [36] The law governing the Crown’s disclosure obligations is well known and emanates from R v Stinchcombe, (SCC),[1991] 3 SCR 326. The Crown must disclose all relevant information in its possession or control subject to certain exceptions. What isrelevant in any given case is determined by a wide variety of factors – principally by the facts in issue.

The facts in issue are set by thecharges before the court and the defences being raised by the accused (see: R v Arp, (SCC), [1998] 3 SCR 339 at para38). The Crown’s obligation to disclose is continuing and continues during an appeal. [37] In R v Madraga, 2015 SKCA 145, 472 Sask R 162, this Court set out the Crown’s disclosure obligations on appeal: [10] In our view, the following principles apply to questions of Crown disclosure on appeal from conviction: (

a) The Crown’s disclosure obligation on appeal must recognize and give full value to an accused’s broad rights of appeal and therationale underlying those rights. … [38] The law is clear that appellants are not entitled to go on a fishing expedition with their request for disclosure (see: R v Anderson,2013 SKCA 92 at paras 71–76, 423 Sask R 61).

While the obligation of the Crown is to continue to provide disclosure – even at the levelof this Court, if necessary – that obligation is not absolute and is bounded by the principle of relevance, among others. [8] Justice Ottenbreit then summarized the Crown’s position, which emphasized that the prospective appellants sought disclosurefor the purpose of attacking the validity of the EPO. As noted above, that avenue had been repeatedly addressed in earlier proceedings,including by this Court in Envirogun CA 2012 and Envirogun CA 2018.

Justice Ottenbreit found the Crown’s argument persuasive,commenting as follows: [42] The Crown states that all “dayplanner/workbook entries, notes etc.”, including those of Mr. Wudrich, have been disclosed to theAppellants and there are no others. [43] The Crown submits that, with respect to the second category, the purpose of the request for evidence of the motivation forlegislative changes relates to the invalidity of the EPO.

Background information underpinning legislative changes is also not disclosablebecause such information is privileged and this privilege is critical to the government’s ability to conduct frank policy discussions and tocritique proposed legislation or the policy underlying it. [44] With respect to the ID number, the Crown argues that this request has nothing to do with non-compliance with the EPO andwhether the defence of due diligence was available to the Appellants. It, again, is related to attacking the validity of the EPO.

Moreover,the Appellants already have that information in their possession, based on documents that have been disclosed. [45] With regard to the designation of authority issue, the Crown points out this request again relates to the validity of the EPO, whichis not in issue in this Court and, in any event, it is a factual issue. [46] There is merit to the Crown’s arguments. The whole application for disclosure is simply a thinly disguised attempt to relitigate thevalidity of the EPO.

It is, as well, an impermissible fishing expedition. [47] I conclude that the application for disclosure must be dismissed. (Emphasis added) [9] Stymied, Mr. Kimery pursued yet another avenue, applying pursuant to s. 683(1) of the Criminal Code for an order “toarrange for a face-to​face ‘examination of discovery’ to verify or discredit the Ministry of Environment (MOE) and the Crown’s disclosurepractice of relevant evidence particular to this case” (emphasis in notice of motion).

That application was dismissed by Richards C.J.S. onMay 27, 2021, who found that only the Court – and not a judge sitting alone – has the jurisdiction to make an order pursuant to s. 683(1).The Chief Justice also stated that his decision was “without prejudice to Mr. Kimery’s right to bring the application before the Court in thecontext of the argument of the appeal proper”. [10] Mr. Kimery did not bring an application in the context of the argument of the appeal proper, as suggested by the Chief Justice.He instead filed the August 5, 2021, application pursuant to s. 683(1) that is the subject of this decision.

His notice of motion confirms thathe seeks journal notes or records of the day-to-day activities, actions and encounters of MOE employees which led to the decision to issuethe EPO. He submits that he is unable to prepare his factum without having the evidence he would obtain, which he would seek to adduceas fresh evidence on the appeal. It is his position that the disclosure issue must be resolved prior to the appeal by the appointment of acommissioner “to examine certain Crown witnesses regarding the scope of their communication records and reports”. [11] Mr.

Kimery’s application is in pursuit of his theory that the prospective appellants are the victims of a “vendetta” which is theproduct of collusion between the MOE and the Rural Municipality of Sherwood. He claims that the prospective appellants have neverbeen responsible for a reportable discharge and that the EPO was issued despite that the MOE had no evidence of a discharge orcontamination by Envirogun. He says that the MOE issued the EPO knowing that it would be impossible for them to comply with it andfor the purpose of benefitting Sherwood. Mr.

Kimery claims that the MOE has knowingly withheld relevant evidence. He acknowledgesthat the Crown says that he has received full disclosure but says that the Crown does not know what is in the records of the MOE. [12] As to relevance, Mr. Kimery asserts that the evidence that would be unearthed through the examination of witnesses and accessto the missing records would support his allegations of a conspiracy and would for that reason make out his defence of due diligence.Crown counsel agreed at the hearing of this application that if there was evidence MOE officials knew that Envirogun and Mr.

Kimerycould not comply with the EPO they intended to issue, it would be relevant.

III. ANALYSIS [ 13 ] Section 683(1) of the Criminal Code provides as follows: 683

(1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice, (

a) order the production of any writing, exhibit or other thing connected with the proceedings; (

b) order any witness who would have been a compellable witness at the trial, whether or not he was called at the trial, (

i) to attend and be examined before the court of appeal, or (ii) to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose; (

c) admit, as evidence, an examination that is taken under subparagraph (b)(ii); (

d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness; (

e) order that any question arising on the appeal that (

i) involves prolonged examination of writings or accounts, or scientific or local investigation, and (ii) cannot in the opinion of the court of appeal conveniently be inquired into before the court of appeal, be referred for inquiry and report, in the manner provided by rules of court, to a special commissioner appointed by the court of appeal; (

f) act on the report of a commissioner who is appointed under paragraph (

e) in so far as the court of appeal thinks fit to do so; and (

g) amend the indictment, unless it is of the opinion that the accused has been misled or prejudiced in his defence or appeal. [ 14 ] Mr. Kimery’s application does not specify which paragraph he relies on. His material could be understood as seeking relief under paragraphs (a), (

b) and (c), and/or under paragraphs (

e) and (f). At the hearing of this application, Mr. Kimery confirmed that he seeks relief under s. 683(1) (e). I will proceed on that basis but, given that he has also specifically advised that a key purpose of his application is to have witnesses examined, will also deal with s. 683(1) (b). [ 15 ] I would first note that this application may be premature. The introductory words of s. 683(1) refer to orders made “for the purposes of an appeal under this Part”. Here, the application for leave to appeal has not yet been heard. The question of statutory

interpretation that arises is this: does “for the purposes of an appeal” include “for the purposes of an application for leave to appeal”, or only for an appeal that has been commenced, whether as a result of leave having been granted or as of right? However, the Crown did not raise this prematurity issue, and it is not necessary to decide it to deal with this application. I would accordingly leave it for another day. [ 16 ] Second, I am not satisfied that this is the sort of circumstance contemplated by s. 683(1)(e). That

section applies where there is a need for “prolonged examination of writings or accounts, or scientific or local investigation”. The target of Mr. Kimery’s application is records relating to interactions between MOE officials and Sherwood which would support his allegation of a vendetta or conspiracy have not been disclosed. He wants officials who could provide that evidence to be examined before a commissioner. That would not constitute a prolonged examination or a scientific or local investigation within the meaning of the section. [ 17 ] Third, Mr.

Kimery seeks MOE records for the period leading up to the issuance of the EPO, as he did in the Stinchcombe application. He says that his purpose is not to attack the EPO, but to find evidence of the Sherwood–MOE scheme or conspiracy, including evidence that the MOE knew the prospective appellants had not unlawfully discharged contaminants and that it would be impossible for them to comply with the EPO. This is a distinction without a difference.

This application is in large part – like the Stinchcombe application – another impermissible attempt to litigate the validity of the EPO. [ 18 ] Fourth, based as it is on a conspiracy theory with no discernible foundation in the evidence, this application can be properly described – like the Stinchcombe application – as a fishing expedition. The Crown asserts that the prospective appellants have already received what they have asked for in any event. Mr. Kimery believes there is clear evidence that the missing records exist.

I must respectfully disagree. [ 19 ] This Court has the authority to permit parties who meet the Palmer test, or in some circumstances, a modified Palmer test, to adduce fresh evidence. It can also exercise its authority pursuant to s. 683 where it considers it in the interests of justice to do so. However, this Court is neither a trial court nor an investigatory body.

The authority granted by s. 683 must be exercised for the purpose of the appeal, and in a manner consistent with the Court’s appellate function. [ 20 ] All of this is well trodden ground in relation to applications to examine witnesses pursuant to s. 683(1) (b). In R v Hobbs , 2010 NSCA 32 , 289 NSR (2d) 327 [ Hobbs ], Beveridge J.A. offered the following comments as to the power granted by s. 683(1) (b), with which I agree: [14] It is hard to imagine a broader scope to a discretion than one that is to be exercised “in the interests of justice”. Nonetheless, it is not a discretion without limit.

An examination can only be ordered for a witness who would have been compellable at the trial. In addition, the power is constrained by the context in which it is given, that is, for the exercise of the court’s appellate jurisdiction. This is emphasized by the very words of s. 683(1) that stipulate that the enumerated powers are to be exercised “For the purposes of an appeal under this Part”.

[15] It is a well recognized principle that trials are meant to be and, absent an appeal, are a final disposition of the specific chargesagainst an accused. An appeal is patently not a re-hearing of the case for and against an accused.

Appeals are limited to a review by anappellate court (where the appeal is from conviction) on grounds the verdict is unreasonable or unsupported by the evidence, or tainted byserious errors in law, or there was a miscarriage of justice. [21] He then cited several cases that adopt a two-part test in this context, including R v Sihota, 2009 ONCA 770, 249 CCC (3d) 22,where an order was granted that the complainant be re-examined from a sexual assault conviction.

Justice Sharpe, having first made clearthat such an order is exceptional, summarized the correct approach this way: [14] …The scope of any examination should be carefully circumscribed and confined to what is fresh evidence.

The appellant shouldnot be allowed to rehash ground covered at trial or to proceed on a speculative basis or “fishing expedition” to uncover fresh evidence notyet identified, but must show - to paraphrase the test for ordering Crown disclosure set out in Trotta at para. 25 - that there is somereasonable possibility that the cross-examination could assist on the motion to adduce fresh evidence by yielding material that will beadmissible as fresh evidence, or assist the applicant in developing or obtaining material that will be admissible as fresh evidence. (Emphasis added) [22] In Hobbs, Beveridge J.A. summarized the matter this way: [40] …In our view, to obtain the extraordinary remedy of an examination of a witness during the appeal process, the applicant mustsatisfy the court that there is at least a reasonable possibility, if not probability, that the proposed examination will produce meaningfulevidence to assist the court in fulfilling its role in determining the issues raised by the appeal.

Paramount in making this determination willbe the court’s views as to the extent to which the applicant will be able to produce the intended fresh evidence with respect to the allegedmiscarriage of justice, with or without the proposed examination.

In other words, absent an examination, will the applicant be unfairlyhindered in being able to meaningfully exercise the appeal rights set out in the Criminal Code? [23] Other examples of this approach – which take account of the likelihood that the examination of witnesses will generate freshevidence and that the evidence would be admissible as fresh evidence – include R v Trotta (2004), (ON CA), 23 CR(6th) 261 (Ont CA) at para 25; R v Nickerson (1993), 1993 NSCA 152 , 81 CCC (3d) 398 (WL) (NSCA) at para 21; R v Mehl,2019 BCCA 438 at para 12; and R v Patrick, 2020 BCCA 259 at paras 73–82, 394 CCC (3d) 139.

Like Beveridge J.A. in Hobbs andGriffin J.A. in Patrick, I need not decide whether the threshold is a “reasonable possibility” or a “reasonable probability” that evidence ofthe right sort will be generated in order to decide this application. Mr. Kimery has failed to establish either a reasonable probability or evena reasonable possibility that evidence that would be admissible as fresh evidence will be generated if an order were granted under s. 683 ofthe Criminal Code. IV.

CONCLUSION [24] For these reasons, the application for an order pursuant to s. 683 of the Criminal Code is dismissed. “Barrington-Foote J.A.” Barrington-Foote J.A.I concur. “Caldwell J.A.” Caldwell J.A.I concur. “Whitmore J.A.” Whitmore J.A.