Lemon Creek charges stayed against fuel company

The trial will continue against two other defendants

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.

Related: Future of Lemon Creek Trial in Doubt

Related: Feds take over Lemon Creek Case

Related: Feds lay charges in Lemon Creek case

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.

Related: Private prosecution launched over Lemon Creek spill

Related: Lemon Creek spill case can move forward

Related: Impatient judge forges ahead with Lemon Creek case

Related: Lemon Creek trial set for April 2016 (with video)

Related: Fuel company sues government over Lemon Creek spill

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

6.5-magnitude earthquake in Idaho shakes the Kootenays

An earthquake was reportedly felt just before 5 p.m. throughout parts of B.C. and Alberta

Nelson and COVID-19: everything you need to know

Check this page for every local story related to the outbreak

Burning ban issued for Nelson area

All open burning is prohibited to reduce COVID-19 respiratory risk

It’s time for community gardens

From reader John Northcott

From medical equipment to water treatment, Teck Trail is an essential service

” … Trail operations is one of a few, and in some cases, the only North American supplier.”

B.C. records five new COVID-19 deaths, ‘zero chance’ life will return to normal in April

Province continue to have a recovery rate of about 50 per cent

John Horgan extends B.C.’s state of emergency for COVID-19

Premier urges everyone to follow Dr. Bonnie Henry’s advice

B.C.’s first community COVID-19 death was dentist ‘dedicated’ to health: lawyer

Vincent was 64 when he died on March 22 after attending the Pacific Dental Conference

Two inmates at prison housing Robert Pickton test positive for COVID-19

Correctional Service of Canada did not release any details on the identities of the inmates

COVID-19 case confirmed at restaurant in Cache Creek: Interior Health

Customers who visited the site from March 25 to 27 are asked to self-isolate

BC SPCA launches matching campaign to help vulnerable animals after big donations

Two BC SPCA donors have offered up to $65,000 in matching donations

First COVID-19 outbreak in Interior Health identified at Okanagan agricultural business; 14 cases confirmed

75 workers are in isolation — 63 migrant workers and 12 local workers

Quarantined B.C. mom say pandemic has put special-needs families in ‘crisis mode’

Surrey’s Christine Williams shares family’s challenges, strengths

Anti-tax group calls for MPs, senators to donate scheduled pay raises to charity

Bill C-30, adopted 15 years ago, mandates the salary and allowance increases each calendar year

Most Read