Morissette, Lavallée, Weitzman

Application for leave to appeal on questions of mixed fact and law. Granted. Appeal from a conviction on counts under the Fisheries Act (RSC 1985, c. F-14) and the Metal and Diamond Mining Effluent Regulations (SOR/2002-222 of 2002-06-06, 136 Can. Gaz. II 1412) and from a judgment granting in part an application to exclude evidence. Dismissed.

The appellants, who operate an iron mine, were convicted of several counts under the Fisheries Act, including for depositing, in water frequented by fish, a deleterious substance exceeding the maximum authorized concentration of suspended solids, and for failing to perform certain mandatory tests.

The judge did not mistakenly apply a presumption of reliability with respect to the test results for the effluent at the mine’s two final discharge points. She simply stated, correctly, that these results were admissible in evidence. The appellants disregarded the conclusions in R. v. Fitzpatrick (S.C. Can., 1995-11-16), SOQUIJ AZ-95111113, J.E. 95-2135, [1995] 4 S.C.R. 154, which found that the self-reporting regime of the Fisheries Act to be valid. Nor did the judge err in considering the probative value of the results and concluding that they constituted proof beyond a reasonable doubt of the appellants’ guilt.

The judge also took into consideration the failures raised by the appellants concerning every step of the process, from sampling to analysis, and concluded that all the results submitted in evidence were sufficiently reliable to be taken into account for the purpose of determining whether or not the concentration of suspended solids had been exceeded. This decision was well founded. Further, the judge did not err in deciding that a margin of error of 15% should not be applied to the results, since section 12(2) and Schedule 3 of the Metal and Diamond Mining Effluent Regulations do not provide that such a margin of error should be applied to validate the results.

With respect to the defence of due diligence, in this case, given the size of their operation, the potential for environmental risk and the availability of the required expertise, the level of diligence expected of the appellants in the prevention measures implemented at the discharge points was higher. The judge did not err in concluding that they had not exercised due diligence to prevent the deposit of mining effluent.

Regarding the finding that the instantaneous rate of discharge where the concentration of suspended solids exceeds 30 mg/L is a “deposit out of the normal course of events” within the meaning of the regulation the appellants’ interpretation that they cannot be held penally responsible for failing to test or follow-up on the deposits out of the normal course of events should not be accepted. Indeed, this mistaken interpretation amounts to saying that only deposits occurring in unusual circumstances, such as a dyke break, are subject to a test aimed at protecting fish and their habitat where a sample already contains substances that are deleterious to them. The judge did not err in the interpretation of the applicable legislative and regulatory provisions.

Last, the ground of appeal concerning the partial dismissal of the application to exclude evidence arising from the seizure is also dismissed, as the appellants validly waived the protection of section 8 of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I) when they knowingly submitted the documents at issue to Environment Canada further to a request for information.

Text of the decision: http://citoyens.soquij.qc.ca