Backgrounder: Belle Park Litigation
In March of 1997, charges were laid against the City by a private citizen (Janet Fletcher) under the Federal Fisheries Act. The charges were laid after rusty seepages were noticed discharging from the shoreline along Belle Park. Mrs. Fletcher contended that the seepages were deleterious (toxic to fish) therefore, an infraction of the Federal Fisheries Act had been committed.
The Ministry of the Environment did not lay charges against the City until several months later. In all, eight charges were laid against the City by the Ministry of the Environment and Janet Fletcher. The Sierra Legal Defense Fund prosecuted the charges against the City on behalf of Janet Fletcher.
The charges filed against the City by both the Ministry of the Environment and Janet Fletcher were addressed concurrently in a trial presided over by a Justice of the Peace. In his decision, the Justice of the Peace found the City of Kingston guilty of seven of the eight charges laid. Total fines in the amount of $160,000 were levied against the City and the City was ordered to prepare a plan to cap the former Belle Park Landfill with an impervious clay cap. The City of Kingston consulted legal and environmental experts and decided to appeal the original convictions.
The City, in consultation with legal and environmental experts decided to appeal the decision of the Justice of the Peace for three key reasons:
- First and foremost, the City disputed the correctness of the guilty verdict. The City, based on various expert opinions, disputed the assertion that Belle Park was releasing deleterious material into the water. The experts disagreed with the verdict because of the way the prosecution's testing was conducted. The City maintained that the court did not consider the impact of this alteration, and therefore, improperly determined that the leachate was in fact harmful. This was not just a "technicality" - this is the critical piece of information that says whether the seepages were toxic or not. The City believed that the testing method used by the prosecution caused the sample to become toxic to fish and that the leachate actually present on the site is not toxic.
- The second issue was that the Justice of the Peace ordered the City to produce a plan to cap the site with an impervious clay cap. No evidence was presented at trial to allow a determination that a clay cap would actually fix the problems observed at the former landfill site. In fact, the City, through consultation with experts in the field of environmental engineering and landfill management, believes that a clay cap alone would not be an effective solution for the site. If the trial court decision was allowed to stand, the City believed that the taxpayers of the community might be forced to pay up to $13 million dollars for a capping project that would not provide any substantial improvement for the Belle Park Landfill site. The City of Kingston is not adverse to capping where it is required - in fact, the former MacAdoo's Lane Landfill site was closed using a compacted clay cap - but a cap at that location made good technical sense. While capping old landfill sites is an accepted and often used solution for preventing downward migration of rainwater, and thus, preventing leachate production; the Belle Park Landfill receives the majority of its leachate-producing waters from the flanks of the site because of the seasonal raising and lowering of Lake Ontario water levels.
- The third issue concerned the future impact of accepting a guilty verdict. In the event the City were ever charged and convicted of an environmental offence in the future, the penalty would be assessed based on a number of considerations, one of which is any previous environmental conviction. Therefore, simply accepting the conviction, when the City felt it was not guilty, could negatively impact the City in the future.
On June 7, 2002, the Decision of Mr. Justice McWilliam, the Summary Conviction Appeal judge on the Belle Park Appeal was released. The City's appeal of the seven convictions against it was allowed, the convictions were overturned and a new trial ordered.
The Court decision noted the central issue as being legal in nature related to whether or not the appropriate law was applied at trial for determining whether the offence of unlawfully depositing a deleterious substance in water frequented by fish had been committed. The Appeals Judge held that the test to be applied was whether the leachate was an "inherently toxic substance". If it was held that it was not, it would then be necessary to consider the "quantity and concentration of the discharge as well as the time frame over which the discharge took place".
(To paraphrase, whether the addition of the leachate to the Cataraqui River was actually harmful to fish in the river.) That legal test had not been applied at the original trial, and accordingly, the City's appeals were allowed.
Rather than proceed with a new trial, in June, 2002 staff from the Ministry of Environment (MOE) served the City a Notice of Application for Leave to Appeal and Notice of Appeal to the Ontario Court of Appeal appealing the overturning of the convictions against the City. Subsequently Janet Fletcher also served the City with such notices.
The Ministry of Environment (MOE) and the Sierra Legal Defense Fund appealed the June 7 decision on the grounds that the judge erred in law in interpreting charges under the Fisheries Act in accordance with the Court of Appeal decision in R. v. Inco Limited, a decision interpreting the provisions of the Ontario Water Resources Act.
In their respective appeals, the Province and Janet Fletcher sought the setting aside of the overturning of the convictions, restoring the convictions, imposing a conviction on the City for the one charge on which it was acquitted at trial and remitting to the Summary Conviction Court Judge the Province's appeal on the sentence imposed against the City at trail.
As this Appeal was initiated by the MOE and Janet Fletcher, the City had no option but to defend itself.
In December, 2003, the Ontario Court of Appeal heard arguments and in May, released its decision to uphold Justice McWilliams decision to overturn the four convictions on charges laid against the City by the private citizen, Ms. Fletcher. On the charges against the City and its former Director of Environmental Services and Engineering, brought by the MOE, the Court of Appeal restored the convictions. The Court of Appeal remitted those convictions back to the Summary Conviction Appeal court for a hearing of the appeals with respect to sentence.
The Court of Appeal held that, in order to obtain a conviction, it is not necessary for the prosecution to prove, on a charge of depositing a deleterious substance, that the introduction of the material into the water "frequented by fish" had any harmful effect on the aquatic life in that water. It held that a deleterious substance was a substance which, when added to water in the laboratory, would make that combination of the substance and the laboratory water harmful to fish. Since the leachate samples collected by the MOE when added to water in varying proportions in the laboratory was harmful to fish, the Crown convictions were upheld.
Since the laboratory testing done for the charges initiated by Ms. Fletcher had involved the introduction of fish into the leachate samples collected, without adding any water, the Court of Appeal was unable to conclude beyond a reasonable doubt that had the samples been added to water, the water would have been rendered deleterious to fish and those convictions were not upheld.
