This sign was tacked to a tree at Lemon Creek last year in the wake of the fuel spill. One resident is launching a private prosecution against the company responsible.

Private prosecution launched over Lemon Creek spill

Frustrated over government inaction, a Slocan Valley woman is taking matters into her own hands.

Frustrated that government officials have not laid charges against the company that spilled jet fuel into Lemon Creek last year, a Slocan Valley woman is taking matters into her own hands.

Longtime resident Marilyn Burgoon is launching a private prosecution against Calgary-based Executive Flight Centre, saying the spill is a “clear violation” of the Fisheries Act, which states “no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish.”

“Jet fuel is definitely a deleterious substance and the 33,000 litres that spilled into the creek on July 26, 2013 killed many fish,” Burgoon said in a prepared statement.

She cited a report by SNC Lavalin, the consultant hired to clean up the spill, that said 261 dead fish were collected. “Local residents have dead fish in their freezers and the clean-up crew was directed to thrown dead fish, animal and bird carcasses back into the river. Therefore the exact count will never be known.”

Burgoon said she and lawyer Lilina Lysenko met with an Environment Canada official and followed up with emails, but the department has not taken any action. She says they were advised that although Environment Canada has jurisdiction to investigate and prosecute, the provincial government is the lead on the file.

Subsequently, a Ministry of Environment spokesman told the Star he wasn’t aware of any charges being contemplated against Executive Flight Centre under the Fisheries Act.

Burgoon said as a result of inaction by both levels of government, and with help from West Coast Environmental Law’s dispute resolution fund, she filed the private prosecution. In addition to the company, the claim alleges the provincial government contravened the Fisheries Act by failing to lay charges. She hopes her suit spurs government to take over the prosecution.

“For me it is about justice for the environment and in particular fish and fish habitat,” Burgoon said. “I have worked to protect water for many years. If government is not going to apply the laws of Canada it is up to the people to do so. I had no choice but to launch a private prosecution and let a judge review the evidence.”

She said it was up to citizens to “be the voice for creatures that have been the victims” because of the severity of the incident, the “disturbing trend” of toxic spills in BC over the past couple of years, and the “unwillingness of government to hold polluters accountable.”

The spill occurred after a tanker truck hauling fuel for helicopters fighting a forest fire on Perry Ridge took a wrong turn onto a forest service road. The fuel entered the creek and then the Slocan and Kootenay Rivers, rendering them off limits for several weeks. It also resulted in a mass evacuation of the lower Slocan Valley for one day.

“The province was involved in controlling where the staging area was located, and providing directions to the same,” Lysenko said. “The province could and should have controlled the access to the staging area, and as such is also responsible for the spill.”

Lysenko said the Fisheries Act specifically provides for private prosecution by individuals, and the right of a private citizen to lay a charge is a “fundamental part” of Canada’s criminal justice system.

An initial court date has been set for October 16 in Nelson. Lysenko said she and a federal lawyer will provide the court with an estimate of how many witnesses they expect to have at the hearing and how long it might take. The matter will then be adjourned to sometime probably in early November for the actual hearing.

In a prepared statement, the Ministry of Environment said the conservation officer service conducted a “detailed investigation” into the spill, but “After careful consideration of all of the facts and circumstances which lead to the incident, no report to Crown counsel was forwarded and the investigation was closed.”

The evidence obtained did not satisfy the necessary criteria to recommend charges under the section of the Fisheries Act that Burgoon cites, the ministry said.

There is at least one example of a successful private prosecution involving a fisheries violations: in 2009, biologist Alexandra Morton laid charges against fish farm giant Marine Harvest Canada for possession of wild juvenile salmon from an endangered stock. The Department of Justice subsequently took over the case. The company admitted to part of the charge and was fined $5,000.

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