The federal government’s case against the fuel transport company Executive Flight Centre for polluting Lemon Creek in 2013 was defeated in Nelson court on Monday before it even got to trial.
This occurred because the company’s lawyer, Chris Archer, successfully argued in a court session on Sept. 26 that the Crown had taken too long, since the beginning of the case, to disclose to him its expert reports and other related data. He also said the Crown had taken too long to conduct an investigation, and the delay jeopardized his ability to mount an effective defence.
Archer said the delays caused the case to exceed a common law rule of a maximum of 18 months between laying of charges and trial. Judge Lisa Mrozinski agreed, and sent Archer and his corporate client home.
The trial will still proceed, though, against the two other defendants: the provincial government, which hired Executive Flight Centre and directed its operation, and the driver of the fuel truck. Neither of these defendants asked the judge for a stay of proceedings on the grounds of delay, so her decision delivered on Monday does not apply to them.
Executive Flight Centre provided fuel to the provincial government to fight a forest fire in the area of Lemon Creek in 2013.
A tanker truckload of that fuel spilled into the creek, polluting the stream and causing a local evacuation.
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The case began with a private prosecution initiated by Slocan Valley resident Marilyn Burgoon, and then proceeded until the federal government took over the case in 2016.
“All this should have been dealt with immediately,” she said outside the courtroom on Monday.
“These charges should have been laid (by the government) the day after that jet fuel ended up in the creek.”
The 18-month rule originated with a Supreme Court of Canada case, R vs. Jordan. More delay than that, the judgment stated, denies an accused person the right to a fair trial under the Canadian Charter of Rights and Freedoms.
Judge Mrozinski had to decide on a question of whether the 18 months began to run when Slocan Valley resident Marilyn Burgoon started a private prosecution on September 29, 2014, (in which case we are now at 38 months, well beyond the limit) or whether it began on January 25, 2016, when the federal government took over the prosecution, or on July 22, 2016, when the federal Crown laid new charges to replace those filed by Burgoon.
The Crown argued that the time should not include the private prosecution or the time between January and July 2016, but the judge disagreed, stating that the case is now 38 months in.
Judge Mrozinski said in her written ruling that the Jordan case allows for exceptions, but “the Crown bears the onus of proving the delay resulted from exceptional circumstances which it could not have foreseen or over which it had no control.
“Even still, the Crown must show it took all reasonable, available steps to avoid and address the problem before the delay exceeded the ceiling.”
She said she was not satisfied that the Crown had met with exceptional circumstances and that it had not taken steps to avoid delays.
The Jordan principle came into effect in Canada a few months after Burgoon began her prosecution, but it still applies, Judge Mrozinski said. Cases that started before Jordan were not “grandfathered.” But the Crown in this case had ample time to adjust, she said.
“I am disappointed of course,” Burgoon said.
“I had hoped for justice for the fish and the wildlife. Had I known that the 18 months would have applied to this case I might have just tried to continue on my own.”
The trial continues against the provincial government and the truck driver, Danny LaSante. It will run this week and then resume the week of November 20 and November 27 at the Nelson courthouse.
The Crown’s case against the two defendants, and previously against Executive Flight Centre, was that the parties “knew or ought to have known that tanker trucks containing enormous quantities of fuel were being misdirected” onto the wrong road.