IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The defendants, Northland Properties Corporation (“Northland”) and Robert Thomas “Tom” Gaglardi were convicted after trial of two offences under section 35(1) of the Fisheries Act R.S.C., 1985, c. F-14. The other defendant, Robert John “Bob” Gaglardi, was acquitted on both counts. The charges were proceeded with summarily.

[2]           Count one related to unlawfully carrying on a work or undertaking, land clearing, which resulted in the harmful alteration, disruption or destruction of fish habitat on the foreshore of Kamloops Lake. Count two involved the same offence committed by means of the placement of fill material to the same effect. Both offences were committed over the period April 1, 2010 to January 25, 2011.

[3]           The evidence heard and facts found at trial are set out in the reasons for judgment given August 7, 2014. Those reasons will be found at the Provincial Court website under R. v. Northland Properties, Gaglardi and Gaglardi, 2014 BCPC 251 (CanLII), 2014 B.C.P.C. 0251 (CanLII) and form part of these reasons.

[4]           In brief summary, Tom Gaglardi, whom I will refer to as Mr. Gaglardi, is the Northland president. Northland is a large commercial property developer which owns and operates about 200 businesses, including many hotels and restaurants. Northland was founded by Bob Gaglardi, father to Tom, and it employs about 12,000 people. The company is headquartered in Vancouver and has more than a hundred employees in the head office. At all relevant times Tom Gaglardi was actively involved in the day to day work of Northland.

[5]           Tom Gaglardi was also the family member responsible for directing renovations to an existing bungalow, construction of a residential addition and other changes to the Gaglardi family property. He did this through the offices of Northland. The property, which has been in the Gaglardi family for many years, is located along 700 feet of Kamloops Lake frontage near Savona, B.C.

[6]           The property was well-treed and in places thickly vegetated. Mature deciduous trees such as cottonwood were prominent and close to the water. Many of these trees and the surrounding vegetation were below high water in the spring. This created a valuable fish habitat which provided food and protection from predators to immature salmon on their way to the Thompson and Fraser Rivers and eventually the sea.

[7]           Mr. Gaglardi used Northland systems, staff and contractors to design and carry out the work on the project. The project superintendent on site was a Northland contractor, Jim Parks. Mr. Gaglardi said the project was not very big by Northland standards and estimated the cost between $1,000,000 and $2,000,000, including the $80,000 - $85,000 costs of remediation.

[8]           As a result of the work performed along the foreshore of the property, a good deal of valuable salmon habitat was altered, disrupted or destroyed. The damage was serious and substantial. Despite the remediation undertaken by the defendants, this fish habitat will not be effectively restored for many years, if not decades to come.

[9]           No regional district building permits were applied for until after the damage was done to the fish habitat. Had such permits been applied for, it is likely that processes would have been engaged which would have prevented the damage to the fish habitat.

[10]        Cases referred to in submissions of counsel included: R. v. Brown, 2010 BCCA 225 (CanLII); R. v. Terroco Industries Ltd., 2005 ABCA 14; R. v. Basso, 2001 BCSC 801; R. v. 0702905 B.C. Ltd dba Old Town Bay et al., (April 12, 2010) Salmon Arm Registry No. 19840-1 (BCPC); R. v. Greater Vancouver Regional District et al., (April 4, 2014) Vancouver Registry No. 217720-1 (BCPC); R.v. Woroby, (2003) 174. C.C.C. (3d) 128 (Man.C.A.); R.v. Larsen and Mission Western Developments Ltd., 2013 BCPC 231(CanLII); R. v. First Prince George Developments Ltd., 2006 BCPC 231 (CanLII); R.v. Golden Eagle Ranch Inc., 2003 BCPC 206 (CanLII). I have also had regard to R. v. United Keno Hill Mines Ltd., [1980] Y.J. No. 10 (Terr. Ct.).

[11]        Part XXIII of the Criminal Code sets out the sentencing principles generally applied in sentence proceedings and they have application here. Section 718.21 provides considerations for the sentencing of organizations. There are also particular considerations for sentencing in environmental cases.

[12]        In R. v. Brown, at paragraph 13, the British Columbia Court of Appeal identified the Alberta Court of Appeal decision of R. v. Terroco Industries Ltd. as “the leading case on the principles of sentencing for environmental offences.” Brown endorsed the proposition that sentencing principles for environmental offences require a special approach, and that the courts should be focused on 1) the extent of the defendants’ culpability, 2) any prior record and past involvement with the authorities, 3) the acceptance of responsibility and remorse, 4) the extent of the damage and harm done and 5) the need for deterrence.

[13]        Deterrence is said at paragraph 14 of Brown to be a “key component” of sentences for breach of environmental protection statutes. Our Court of Appeal also adopted the observation in Terroco that “when the maximum fines under an environmental statute are high, it is a message that low or nominal fines do not meet the goal of the statutes.”

[14]        The applicable maximum penalty upon summary conviction under s. 40(1) of the Fisheries Act was at the relevant time a fine not exceeding three hundred thousand dollars on each count for each accused. Maximum penalties have since increased.

[15]        The Crown has submitted that an appropriate sentence against both offenders on both counts would include fines and penalties in the amount of $300,000 in total. The defence has suggested that total fines and penalties in the range of $50,000 to $75,000 would meet the requirements of the case. The parties are agreed that a monetary order should go against the offenders as part of a community service order pursuant to s. 79.2(e) of the Fisheries Act. This order would be to the benefit the British Columbia Conservation Foundation in its work improving fish habitat.

[16]        At paragraph 66 of Terroco Industries, Justice Ritter directed sentencing judges to consider the degree of culpability of the offender. This involves a rigorous assessment of the facts of the predicate offence “to see where the offender’s conduct lies on the continuum between virtual due diligence and virtual intent.”

[17]        At trial, these two defendants submitted that the Crown case had been made out against them, but only on the basis that neither defendant exercised sufficient due diligence in supervising the work done by the project superintendent, Jim Parks. It was suggested in that Mr. Parks, contrary to the evidence he gave, had exceeded his instructions in clearing the land and placing the fill as he did.

[18]        At trial I accepted the evidence of Jim Parks. As I stated at paragraph 71 of the Reasons for Judgment:

[19]        I rejected the evidence of Northland employee Scott Harwood and Tom Gaglardi that Jim Parks was not authorised to do the clearing and filling he did on the property. Neither did I accept Tom Gaglardi’s evidence that he was not actively involved in the project.

[20]        At paragraph 76 I said:

[21]        In light of the findings made at trial, I consider that on the continuum between virtual due diligence and virtual intent referred to in Terroco, the degree of culpability of these defendants lies closer to virtual intent.

[22]        It should also be noted that some of the large trees along the foreshore were expressly and intentionally ordered by Tom Gaglardi to be taken down without proper examination, assessment or permission. These removals also contributed to the damage to fish habitat.

[23]        It was not alleged that either of the defendants had any prior record of convictions or involvement with authorities. That factor is not present in this case.

[24]        It is a well-established mitigating factor on sentence when a defendant pleads guilty and saves the state the time, cost and uncertainty of a trial. However, it is important to be clear that there is no aggravating factor to be attributed to a defendant who chooses to exercise his or her fundamental right to a trial.

[25]        This was not a case where the defendants entered an early guilty plea or any guilty plea at all. There was an acknowledgement of some responsibility made at the start of the trial, on foot only of the failure of these two defendants to exercise due diligence. That position was disputed by the Crown. In the result, no guilty plea was entered and the trial proceeded.

[26]        It was suggested in mitigation that the defendants had cooperated with the investigation. It is not clear to me on the evidence that there was any meaningful cooperation by the defendants with the investigation. To the contrary, I have found that the Northland manager, Mr. Harwood, who was charged with giving Mr. Parks instructions on behalf of Northland, instructed Mr. Park to destroy evidence on the “600” grading plan that linked that plan to both Mr. Harwood and Northland.

[27]        Again, a defendant who chooses not to assist investigators is exercising a citizen’s fundamental right and that cannot be an aggravating feature in the balancing required by the sentencing process. The attempt to procure the destruction of evidence undercut the submission that Northland took responsibility, cooperated with DFO investigators or exhibited meaningful remorse.

[28]        There is mitigation to be found in the remedial work performed on the Gaglardi property by the defendants after the fact and in consultation with Fisheries and Oceans Canada (DFO). This remediation was agreed and executed promptly. The work was performed to the satisfaction of the DFO at an expense to the defendants of approximately $80,000 or $85,000, according to Tom Gaglardi.

[29]        With respect to the damage and harm caused by the commission of the offences to this important salmon habitat, it was expected by the expert witnesses that the remediation will take decades to mend the harm done. For convenience I will restate the findings at paragraphs 78 - 83 of the Reasons for Judgment:

[30]        The evidence of actual and serious harm to fish habitat has been established on the evidence of Dr. Rosenau and Mr. Pehl. That damage could easily have been avoided by the defendants had they wished to do so. What on-site rehabilitation can be done, has been done.

[31]        In Brown (para. 14) and Terrocco (paras. 53 - 54) the courts emphasised the importance of deterrence in sentencing in environmental offences. The purpose of deterrence is two-fold: firstly to ensure that these specific defendants are deterred from committing such acts in the future. Secondly, deterrence also addresses the need to influence and impact other similarly situated persons or enterprises who might risk committing environmental offences for pecuniary or other reasons.

[32]        Many of the factors mentioned above will play into the assessment of the requirement of specific deterrence for offenders. Acceptance of responsibility, remorse, cooperation with authorities and the negation of financial gain resulting from the breach are all factors to be taken into account in determining the appropriate penalties required under this head.

[33]        The Crown submitted that the behaviour of both defendants in this matter fell far short of the standard that parliament, the courts and society at large expect from businesses and business leaders. The Crown submitted that the great wealth and prosperity of both Northland and Tom Gaglardi should be a factor in setting appropriate penalties towards the higher end of the scale.

[34]        While admitting the relative wealth of the defendants, defence counsel took issue with this submission and argued that the defendants should not be penalized for their wealth. He relied upon an extract from Clayton C. Ruby, Sentencing, (8^th ed.) (Markham: LexisNexis Canada, 2012) Ch. 11 at pp. 478 - 480:

[35]        At page 480, Mr. Ruby also made the following comments:

[36]        In Terroco at paragraph 60, Justice Ritter stated, in the context of environmental offences committed by offenders in the oil, gas and petrochemical industries, that:

[37]        Counsel for the defendants pointed out that unlike many of the cases referred to by counsel, this was not a situation where the defendants stood to make money as a result of the offence. Northland took no benefit or advantage from the commission of the offence beyond serving the interests of its principals.

[38]        It is true that the damaging “improvements” to the property were never intended for a business advantage or for the purpose of generating income. The benefits that accrued had to do with increased “usefulness” of the lots and widened, sweeping views of Kamloops Lake from the Gaglardi property.

[39]        Counsel has pointed out that there has been a good deal of media interest and publicity attached to this case and that the defendants Northland and Tom Gaglardi will feel some deterrent effect through consequent public embarrassment and damage to reputation. No doubt this is correct.

[40]        An appropriate sentence for each offender must be proportionate to the offence, it must reflect the sentencing principles mentioned above, including the degree of culpability, the harm done and the need for deterrence of these offenders and others who may be similarly situated.

[41]        Taking into account all that I must, including the range of penalties imposed in other cases of this type and the relative wealth of the offenders, I am satisfied that an appropriate penalty for Northland Properties Corporation and Robert Thomas Gaglardi will be firstly a fine of $5,000 for each offender on each count. These fines will be payable to the Clerk of the Court in Kamloops.

[42]        Further, having regard to the nature of the offences and the circumstances surrounding their commission, there will also be a community service order pursuant to s. 79.2(e) of the Fisheries Act.

[43]        Northland Properties Corporation and Robert Thomas Gaglardi will perform community service by paying to the British Columbia Conservation Foundation the sum of $60,000 each. These monies shall be for the purpose of funding projects and activities that promote the conservation and protection of fish or fish habitat in the Thompson River watershed. The funds shall be expended by that Foundation on such purposes under the direction and with the concurrence of the Department of Fisheries and Oceans at Kamloops, British Columbia.

[44]        Total fines and penalties for both offenders together amount to $140,000. I will also hear from counsel on time to pay.