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Fisheries and Oceans Canada

September 2002 - No. 12

Charges

Cottage owner charged after concrete deck built over smallmouth bass habitat

January: Cottage owner Melvin Brandow faces charges after fish habitat was altered in the Township of Billings, Ontario. Charges were laid under the Fisheries Act after a joint investigation by DFO and the Ontario Ministry of Natural Resources (OMNR). The charges involve the construction of a concrete deck alleged to cover about 60 square metres of smallmouth bass habitat on Kagawong Lake, Manitoulin Island.

Prior to construction, OMNR asked the accused to contact DFO, but it appears that Brandow opted to work without either a permit from OMNR, or any advice from DFO. The Township of Billings ordered removal of the cement deck in October 2000, but it has not been removed. A trial has been scheduled in Gore Bay, Ontario for this Fisheries Act prosecution.

More info: Ron Welch (705) 746-2196

Homeowner charged after woody matter removed from Rideau Canal lake system

February: Homeowner John Zuber of Kingston has been charged under the Fisheries Act for alleged damage to fish habitat on Dog Lake, Ontario. The lake is part of the Rideau Canal system of lakes. DFO laid charges relating to removal of woody matter and root mass of stumps, which provide fish spawning habitat and cover in the lake. Parks Canada had issued a stop work order under the Historic Canal Regulations to Zuber.

More info: David O'Leary (613) 925-2865

Waterfront homeowner charged after shoreline fill exceeds authorization

May: Homeowners John and Kim Wright of Kingston, Ontario, and contractor Brian Mulrooney of Mulrooney Marine Construction, all face charges under the Fisheries Act. Charges alleging damage to fish habitat were laid after an existing dock on the St. Lawrence River was expanded until it was 80 square metres larger than permitted under conditions of an authorization by DFO (Prescott office). The work may have affected habitat used for migration and feeding by smallmouth bass and rock bass.

More info: Gilles Poirier (613) 925-2865

Golf Course Developers charged after damage to brook trout stream

May Charges have been laid after a tributary of South River in Machar Township, Ontario was altered during construction of a golf course. Maplewyld Development Inc., local residents Chris Hundley, Matthew and John MacFarlane of MacFarlane/Pinkerton Construction, and golf course designer David Moote have each been charged with five counts under the Fisheries Act alleging harmful alteration of fish habitat. Heavy machinery crossed the stream at numerous locations, affecting vegetative cover, substrate and bank stability. The works affected at least a hundred metres of the stream, which supported brook trout.

More info: Ritchie Rath (705) 746-2196

Charges laid after dredging of Hog River

June : The owner of Victoria Beach and Marine Resort, Hank Mastenbroek, and his company MSV Holdings, face charges under the Fisheries Act. The charges relate to dredging of the Hog River, Ontario, and failure to comply with an inspector's direction.

Mastenbroek, MSV Holdings, and contractors Travis Lusk and Edward Brabant, have also been charged after fill was placed on a beach in Victoria Harbour on Georgian Bay. Whitefish, northern pike, carp and those salmonid species inhabiting Georgian Bay use beach habitat for spawning and nursery functions.

More info: Ray Thibadeau (705) 750-4009

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Culvert replacement results in charges for siltation of Indian Pond Brook

September : Charges were laid under the Fisheries Act against McCurdy Construction & Equipment Ltd. and H. Wareham & Sons Ltd. alleging pollution and damage to fish habitat in Indian Pond Brook, Newfoundland. The brook is two kilometres south of Horwood, Dog Bay.

Responding to a complaint of siltation, DFO investigators visited the work site of H. Wareham & Sons on the brook where it crosses highway route 331. The company was replacing a culvert, under a sub-contract with McCurdy Construction. The charges allege that silt was released from the work site into the brook, discolouring a large area of Big Indian Pond. The brook provides valuable spawning and rearing salmonid habitat.

More info: Wayne Sullivan (709) 466-8274

BCL Construction charged for siltation of trout stream

September : Charges under the Fisheries Act have been laid against BCL Construction Ltd. alleging damage to fish habitat in St. John's, Newfoundland. DFO investigated after complaints from residents near Hunt's Lane. Investigators found several hundred feet of a tributary stream of Virginia River filled with silt. Electrofishing in the area later collected one brook trout, which had severe gill abrasions.

BCL was engaged in a nearby upstream residential construction project. The charges allege that sediment released by the construction had washed down through a vegetation buffer zone into the stream.

More info: Gerard Neville (709) 772-2456

Convictions

Landrock Landscaping fined an additional $500 after failing to pay court order

January - A landscaping company was fined after failing to comply with a court order. Landrock Landscaping Ltd., Pezzente Cement Contracting Ltd., and Vladimir Plavsic had all been convicted for damage to fish habitat in West Vancouver, BC. Each offender was ordered by the court to pay $2,500 for fish habitat improvement in Nelson Creek. The two other offenders paid, but Landrock did not. Landrock was then charged under Fisheries Act section 79.6 for failure to comply with the court order.

The company pleaded guilty through its president, Vincent D'Arpino. Judge Moss of the BC Provincial Court fined Landrock an additional $500, on top of the original court order.

More info: Ann Bussell (604) 666-8727

District of Tofino and contractors fined after road construction releases sediment

January - The District of Tofino and Gibson Bros. Contracting Ltd. have pleaded guilty to Fisheries Act charges of polluting. The charges were laid after sediment-laden water was discovered flowing into Lorry Creek, and on to Browning Passage in Clayoquot Sound, BC. The sediment came down a ditch-line system from a newly constructed road, built to access a "stump dump" for land-clearing debris.

The District and Gibson Bros. were each fined $500 and ordered to make a $14,500 donation to the Tofino Salmon Enhancement Society. The penalties for the offence totalled $30,000.

More info: Al Magnan (250) 756-7021

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Landlord fined for oil leak from storage tank

January - A landlord was fined $2,000 after diesel oil spilled from a tank on his rental property into fisheries waters. Archie Ervin of Prince Rupert, BC, pleaded guilty under the Fisheries Act for pollution. The Provincial Court ordered Ervin to pay the fine after the oil leaked from an aboveground tank, flowed down a manhole, and into Hays Creek.

This is a "strict liability" type of offence and the landowner would be responsible. Judge Seidemann commented that although Ervin did not actively participate, it is a common problem and Ervin is responsible for it here. Ervin had the tanks removed from the property immediately, at his own expense.

More info: Bob Sparkes (250) 627-3406

Island Industrial Chrome pays $35,000 for toxic spill

August - A company that provides chrome plating services has been convicted for the third time under the Fisheries Act. Island Industrial Chrome Ltd. (IIC) was found guilty of a January 1998 spill of acutely toxic chromium, polluting the Campbell River, BC.

The spill happened after an employee accidentally left a water hose running in the chroming tank and then left work for the weekend. The solution overflowed, leached from the building's foundation, down a storm drain, and into Kingfisher Creek. The spill was discovered when a waterfront homeowner saw the creek below his house had turned yellow. The Crown prosecutor argued that there was no automatic shut-off valve for the hose, no high-level alarm to warn of overflows, and insufficient supervision of plant shut-down. Judge Saunderson agreed that IIC had not taken all reasonable measures to prevent the spill.

IIC was ordered to pay a fine of $3,500, and an additional $31,500 to develop a plan for, and fund, restoration of fish habitat on the Campbell River.

More info: Ed Thorburn (250) 283-9075

Ontario Superior Court confirms Fisheries Act section 35(1) is not vague or too broad

In an appeal to the Ontario Superior Court, defence attorneys argued that section 35(1) of the Fisheries Act is not constitutional. The section protects fish habitat from physical damage, and states: "No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat." Violators can be fined up to $300,000 for a first offence.

In R. v. Gerry Leveque and J&P Leveque Bros. Haulage Ltd. (2001), the appellants claimed that the section is too vague and too broad, contrary to the principles of fundamental justice guaranteed by the Canadian Charter of Rights and Freedoms.

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Vagueness argument

A law is too vague if it does not define an area of risk clearly enough to provide fair notice to the citizen, and to limit discretion in enforcement.

The appellants argued that the courts could not give section 35(1) a "settled and constant" interpretation. A review of Canadian case law shows that in many cases, experts called by the Crown and by the defence disagree on whether or not work resulted in harmful alteration, disruption or destruction of fish habitat. Further, experts differ on whether fish habitat includes areas not normally wetted or washed by water; part of a creek bed that was dry at the time of the offence; or trees and vegetation at the top of a creek bank.

The Superior Court ruled, however, that disagreement among experts does not mean that the courts have developed no "constant or settled" meaning. Experts have disagreed in virtually all aspects of criminal and civil lawsuits. It is impossible to achieve absolute certainty. Many varying judicial interpretations of s. 35(1) may co-exist, and further review by appeal courts will improve predictability.

Overbreadth argument

Being too vague and being too broad are related, but distinct. A law is too "broad" if it creates no boundaries or limits in proportion to the objective that the law is meant to achieve.

The appellants argued that section 35(1) is too broad and places disproportionate or arbitrary limits on an individual's rights. They submitted that any kind of work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat will automatically expose a person to punishment. Section 35(1) creates no boundaries or limits to any area of risk to frame legal debate.

The Superior Court again disagreed. Protection of Canada's fisheries and fish habitat is a very broad subject matter. The pursuit of environmental protection entitles a legislature to choose broad language in order to achieve flexibility, and to deal with scenarios not foreseen by the legislators. Section 35(1) does not attract consequences for trivial or minimal impacts on fish habitat. Further, a due diligence defence is set out in section 78.6 of the Act: a person will not be convicted if he or she took all reasonable measures to avoid committing the offence in the first place.

More info: Carl Yong (604) 666-3282

DFO Pacific Region habitat enforcement profile, 1997 to 2002

DFO enforces fish habitat protection using various provisions in the federal Fisheries Act. Enforcement may result in charges, prosecutions, and convictions under the court system. Penalties for Fisheries Act offences may be imposed as court orders to restore or improve the local fish habitat environment. Statistics are presented below for enforcement in British Columbia and the Yukon (Pacific Region), but are subject to change without notice. Statistics do not include charges for which DFO was not the lead investigating agency (e.g., charges by provincial ministries, Environment Canada, or other regulatory agencies).

Charges

A charge is an accusation ("Information") laid before a judge or justice of the peace alleging an instance, or count, of violating a specified section of the Fisheries Act or other legislation. This commences a prosecution. In Pacific Region, the three most common habitat sections under which charges have been laid by DFO are:

s. 35 - Prohibits "harmful alteration, disruption, or destruction" of fish habitat unless authorized by the Minister. Alteration includes impacts from in-stream and shoreline development, and from sediment deposits causing a physical harmful alteration (e.g., by smothering fish spawning gravel).

s. 36 - Prohibits "deposit of a deleterious substance" to water frequented by fish, unless permitted under regulations. Deposits include not only chemical discharges, but also sediment released at levels deleterious to fish (e.g., by clogging fish gills), filling material, and debris from activities that harmfully alter fish habitat.

s. 38 - Inspector's direction to take actions to prevent, counteract, or remedy adverse effects from the deposit of a deleterious substance. Deposits include chemical substances, sediment, filling material, and debris. Failure to comply is an offence.

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Prosecutions

A prosecution is a "case" or court proceeding that may involve multiple accused, charged with multiple counts under s. 35, s. 36, s. 38, or other section or legislation, often in combinations. Upon conviction of an accused on one count, the Crown prosecutor may, if appropriate, stay proceedings on other charges, or charges against other co-accused. A stay of charges is not equivalent to acquittal.

In the last five years, DFO Pacific concluded 109 prosecutions for 355 charges under Fisheries Act habitat sections. These charges accused and co-accused 184 individuals and corporations, for incidents of physical damage or chemical damage (or both) to fish habitat.

DFO Prosecutions for physical and/or chemical damage to fish habitat (BC and the Yukon)

• 42% (46) of prosecutions involved charges under s. 35 only.
• 17% (18) of prosecutions involved charges under both s. 35 and s. 36/38 for deposits of sediment, filling material, or debris.
• 28% (30) of prosecutions involved charges under s. 36/38 only, for chemical deposits.
• The number of prosecutions over the past five years has decreased.

Convictions

A conviction is a finding by a court that an accused is guilty of a charge, after either a plea of guilty, or a trial. A single prosecution may result in multiple convictions of one or more of the accused.

Convictions for physical and/or chemical damage to fish habitat (BC and the Yukon)

• Every year, about 85% of prosecutions were successful, i.e. resulted in one or more convictions (data not shown). The remainder concluded with acquittal, dismissal, or stay of all charges.
• The number of convictions has decreased over the last five years.

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Penalties

DFO Pacific Region seeks court orders that benefit the environment based on s. 79.2 of the Fisheries Act. Court orders generally consist of a nominal fine paid to the court, a larger sum paid for local fish habitat improvement or conservation, an order for offenders to repair the damage at their own expense, or all three. The graph below shows estimated total penalties for Fisheries Act habitat convictions in BC and the Yukon.

Total penalties under Fisheries Act habitat sections (BC and the Yukon)

• Over the last five years, about $1.5M in penalties have been paid for physical or chemical damage, or both, to fish habitat in BC and the Yukon.
• Penalties included about $130,000 in fines paid to the court, and $1.4 million paid to restore or improve the local fish habitat affected by the offence.
• The courts have set penalties ranging from fines of $100 or less, to orders to repair damaged habitat costing offenders many thousands of dollars, depending on the circumstances of each case. Nevertheless, the average penalty per conviction appears to have risen, shown in the graph below:

Average penalty per conviction under Fisheries Act habitat sections (BC and Yukon)