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R. v. Lasante et al., 2018 BCPC 45 (CanLII)

Date:
2018-03-01
File number:
25268-1
Citation:
R. v. Lasante et al., 2018 BCPC 45 (CanLII), <https://canlii.ca/t/hqplj>, retrieved on 2024-03-28

Citation:      R. v. Lasante et al.                                                      Date:           20180301

2018 BCPC 45                                                                                File No:                  25268-1

                                                                                                         Registry:                     Nelson

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

REGINA

 

 

v.

 

 

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA AS REPRESENTED BY THE MINISTRY OF FORESTS, LANDS & NATURAL RESOURCE OPERATIONS AND THE MINISTRY OF TRANSPORTATION AND INFRASTRUCTURE, EXECUTIVE FLIGHT CENTRE FUEL SERVICES LTD., AND DANNY LASANTE

 

 

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE L MROZINSKI

 

 

 

 

 

Counsel for the Crown:                                                                          J. Cliffe, Q.C., A. Switzer

Counsel for the Defendant:                                                                        J. Maxwell, A. Davies

Counsel for Danny Lasante:                                         A. Hepner, Q.C., C. Archer, S. Rodgers

Place of Hearing:                                                                                                        Nelson, B.C.

Dates of Hearing:           Sept. 25, 26, 27, Oct. 30, 31, Nov. 20, 21, 22, 23, 24, 27, 28, 2017

Jan. 29, 30, 31, Feb. 1, 2, 2018

Date of Judgment:                                                                                                   March 1, 2018


I.         Introduction

[1]           On July 26, 2013, a fuel tanker truck driven by the defendant Danny Lasante, containing 35,000 litres of Jet A-1 fuel oil, toppled off an embankment on Lemon Creek road and landed on its side in Lemon Creek.  All of the fuel spilled or was washed into the creek.  Jet A-1 fuel is an inherently dangerous substance.  The deposit of that much of the fuel at one time caused harm and even death among the aquatic life in both Lemon Creek and downstream in the Slocan River.  Fumes from the fuel dispersed widely. Local residents described experiencing nausea, headaches and burning eyes. Many were evacuated from their homes for a day or more in some cases.  The clean-up effort, measured in years, was laborious and obviously costly.

[2]           The fuel was intended to have been delivered by Mr. Lasante to a Ministry of Forests, Lands and Natural Resource Operations (“MOF”) staging area at the Lemon Creek gravel pit where MOF was coordinating a firefighting effort.  Lemon Creek road is within the inventory of roads administered by the defendant, Ministry of Transportation, Highways and Infrastructure (“MOTI”).

[3]           The prosecuting Crown, which I will refer to hereafter as the Crown, charges that Mr. Lasante, MOF, and MOTI all bear responsibility for this environmental disaster. The Crown has also charged Mr. Lasante’s employer, Executive Flight Centre Ltd., (hereinafter referred to as “Executive”) but charges against that defendant were stayed by this court by order dated October, 30, 2017.

[4]           The remaining defendants stand charged with 8 counts of various violations of the Fisheries Act, RSC 1985, c. F-14  and the Environmental Management Act, SBC 2003, c. 53 (“EMA”) as a consequence of the spill.

[5]           Count 1 of the Information charges that Mr. Lasante, MOF and MOTI did unlawfully deposit or permit to be deposited a deleterious substance, namely Jet A-1 fuel oil, in Lemon Creek, a water frequented by fish contrary to s. 36(3) of the Fisheries Act. Count 2 charges that Mr. Lasante, MOF and MOTI unlawfully deposited or permitted to be deposited a deleterious substance, namely Jet A-1 fuel oil, into Lemon Creek under conditions where it may enter the Slocan River, also a water frequented by fish, contrary to s. 36(3) of the Fisheries Act.

[6]           Counts 3 and 4 charge that these defendants did unlawfully introduce or cause or allow waste, namely Jet A-1 fuel oil, to be introduced into Lemon Creek, and or Lemon Creek and the Slocan River, in the course of conducting a prescribed trade, industry or practice contrary to s. 6(2) of the EMA.

[7]           Counts 5 and 6 charge that these defendants did unlawfully introduce or cause or allow waste produced by a prescribed activity or operation, namely Jet A-1 fuel oil to be introduced into Lemon Creek and/or Lemon Creek and the Slocan River contrary to s. 6(3) of the EMA.

[8]           Finally, counts 7 and 8 charge that these defendants did unlawfully introduce waste, namely Jet A-1 fuel oil into Lemon Creek and/or Lemon Creek and the Slocan River in such a manner and quantity as to cause pollution contrary to s. 6(4) of the EMA.

II.         The Parties’ positions

[9]           All of the parties agree that the offences charged herein are offences of strict liability. These are offences in which the Crown need only prove the actus reas beyond a reasonable doubt. If that is done, it is open to the defendants to avoid liability by showing they took all reasonable care to avoid the commission of the offence. In the famous passage of R. v. Sault Ste. Marie (City), 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, Justice Dickson as he then was wrote of what is now commonly known as the defence of due diligence:

The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.

[10]        The Crown submits that it has discharged its onus to prove the actus reas on all counts. There is no dispute among any of the parties for example that Jet A-1 fuel oil is a deleterious substance and is therefore also a pollutant as that term is intended pursuant to s. 6(4) of the EMA. There is no dispute that Lemon Creek and the Slocan River are fish bearing waters.  It is now conceded and was easily proven that Danny Lasante was the driver of the tanker truck that rolled into Lemon Creek.

[11]        Despite these facts, all of the defendants herein submit the Crown has not discharged its primary onus.

[12]        Mr. Lasante denies liability on all counts. He submits firstly that the Crown has not proven the actus reas of the offences charged in that the Crown has not established he voluntarily deposited the fuel into Lemon Creek.  Alternatively, and not unrelated to his first argument, Mr. Lasante submits that if the court accepts the actus reas has been proven, it should find he exercised all reasonable care to avoid the rollover and consequent spill. Mr. Lasante submits the spill was unavoidable and thus unforeseeable - that he negotiated the road using all due care and attention and that at the point of the rollover the ground beneath his tanker trailer wheels simply gave way. Mr. Lasante likens the event to an act of god: an event over which he had no control and for which he should bear no liability.

[13]        Mr. Lasante submits also that because he was not charged with these offences until July 22, 2016, some three years after the spill event and a year or more after the relevant stretch of the road was repaired by the Province, he has been denied his right to make full answer and defence.  Specifically, he submits that the pre-charge delay has deprived him of the opportunity to prepare a proper accident reconstruction report and possibly even a geotechnical report on the stability of the embankment on the particular stretch of Lemon Creek road where his vehicle collapsed into the creek.  Mr. Lasante seeks an order pursuant to ss. 7 and 11 of the Charter staying these proceedings based on pre-charge delay.  I will address this and Mr. Lasante’s other application for a stay of proceedings based on unreasonable delay in prosecuting this matter later in these reasons.

[14]         Though the provincial defendants, MOF and MOTI, acknowledge the prosecuting Crown has made out the elements of the charges referred to above, these defendants do not concede the prosecuting Crown has proven the actus reas of any of the counts against them beyond a reasonable doubt.  Specifically, these defendants submit the prosecuting Crown has not proven that they in any way caused or permitted or allowed the deposit of the Jet A-1 fuel into Lemon Creek and the Slocan River.  The provincial defendants submit that they could not have foreseen the manner in which the spill occurred. Alternatively, assuming the actus reas is proven, the provincial defendants also rely on the defence of due diligence.  They submit that to the extent the spill was foreseeable they took all reasonable steps to prevent it from having occurred.

[15]        Finally with respect to counts 5 and 6 of the Information both MOF and MOTI maintain that s. 6(3) of the EMA has no application in these circumstances. Mr. Lasante made no submissions in this regard.

III.        The Issues

[16]        The issues in this case are firstly whether the Crown has proven the actus reas of the offences charged beyond a reasonable doubt. If so, the question becomes whether any or all of the defendants have proven, on balance of probabilities, that they took all reasonable steps to avoid the particular event.

[17]        The question which permeates both issues is the proper characterization in the circumstances of this case of what is the “particular event” the defendants ought to have avoided.  The Crown submits that the focus must remain on the deposit of the fuel into Lemon Creek such that the defendants must show they took all reasonable steps to prevent that from having occurred. The defendants have focused on the cause of deposit, viz., the collapse of the embankment and consequent rollover. As such, they maintain they could have done nothing to avoid the event.

[18]        With regard to Mr. Lasante specifically, this court must also determine whether he has been prejudiced by either pre-charge or post-charge delay such that the charges against him must be stayed in order to preserve the integrity of our judicial system.

IV.      The Factual Background

[19]        I have already described in broad outline the manner in which the Jet A-1 fuel was deposited into the waters of Lemon Creek and the Slocan River.  What follows are my findings regarding the sequence of events leading up to the spill and the role of each of the defendants as it relates to the offences charged.

(i)         The Perry Ridge Forest Fire

[20]        On July 26, 2013, the defendant MOF was engaged for the second full day in an effort to suppress a forest fire burning around Herd Creek on Perry Ridge in the Slocan Valley. The scope of the fire was described by Dan McVee, a veteran fire protection technician with MOF, as being moderate in terms of resources. He testified that it was neither small, nor was it a “mega fire”.

[21]        What Mr. McVee meant by resources was described in greater detail by John Knapik, the Deputy Fire Centre Manager for the South East Fire Centre at the Castlegar airport; the fire centre responsible for the management of the Perry Ridge Fire.  As Mr. Knapik explained, when a forest fire occurs, it is assessed firstly to determine whether, when or if MOF will assign resources to it. If the fire is deemed a priority, for example, the question becomes what resources are necessary to support the attack plan for the fire.  Resources include both human resources in terms of firefighters, and aviation resources, including fixed wing, retardant aircraft or helicopters.

[22]        The decision to include a helicopter or helicopters as a resource in fighting any particular fire in turn gives way to other operational imperatives such as the designation of a staging area in which the helicopters will not only pick up and deliver firefighters to the fire, but will also fuel or re-fuel as necessary throughout the day. This in turn requires MOF to contract not only for helicopters but also for fuel delivery.

[23]        In the Perry Ridge fire, a decision was made to utilize helicopters in the fire suppression effort so that by July 25, 2013, MOF had established a staging area, also referred to in this trial as a muster station or even a Heli base, at the Lemon Creek gravel pit. I will refer to the site as the Lemon Creek staging area in these reasons. 

[24]        The fuel delivery system in place at the Lemon Creek staging area at the material time was slightly unusual in one particular sense that I will touch on shortly, but in the broader sense it was no different than any other staging operation.  In the normal course, before the fire season begins, MOF will send out an expression of interest to fuel carriers to contract for the provision of fuel services throughout the fire season. Mr. Knapik detailed the criteria for qualification including fuel flow requirements, filter requirements, quality assurance, qualifications and certificates required to provide fuel services, insurance requirements and so forth.  Qualified carriers would then enter into a form of contract entitled a “Standing Offer for Mobile Aviation Fuel Services” (the “Standing Offer”). The Standing Offer does not oblige the fuel supplier to provide fuel services, nor does it obligate the province to use the fuel supplier.  Rather, the Standing Offer constitutes an understanding between the parties that if fuel services are required, the fuel supplier is qualified to and can provide the necessary services when called upon. 

[25]        Section 6.05 of the Standing Offer provides that a contract for service is formed upon receipt of a “Service Request” from the province and upon acceptance by that request by the supplier.  Notice of a Service Request may be in the form of a Service Request Form, verbally in person, or by telephone.

[26]        In the case at bar, MOF did have a Standing Offer agreement with Mr. Lasante’s employer, Executive, in place in July 2013. As Mr. Roger Nickel, the BC Operations Manager for Executive at the material time testified, Executive began regularly conducting business with MOF in 2002. By 2013, the parties had formed a comfortable working relationship; they had also developed certain business practices.

[27]        For the most part, once the Standing Offer was in place, Mr. Nickel would typically be contacted by telephone with a service request on behalf of MOF. He testified, and I find this unsurprising, that the request is often urgent; the fuel is needed as soon as possible. Again, in the normal course, Mr. Nickel’s approach would be to send a fuel truck with the capacity to fuel a helicopter to the staging area; in this trial the parties referred to that type of vehicle as a bowser.  The bowser is intended to remain at the staging area and is re-fuelled as and when necessary by other fuel storage tankers also operated by Executive.  In the normal course then, when asked to provide fuel services by MOF, Executive would respond quickly; it would provide MOF with a bowser equipped with a fuel delivery system and an employee who was qualified and insured to fuel helicopters at the staging area. Both would remain at the staging area as long as necessary. The bowser would be refuelled constantly by tanker trucks operated by Executive and driven by persons such as Mr. Lasante.

[28]        In the Perry Ridge fire, Executive’s role was slightly different.  At the material time, on July 26, 2013, Executive was providing fuel to the Lemon Creek staging area at the request of Transwest, a helicopter company with which Executive had done business since approximately 2001.

[29]        As Mr. Nickel described it, though not without some difficulty, Executive had for many years provided Transwest with fuel services in the context of Transwest’s Heli logging operations.  In those operations, Executive would provide Transwest with what Mr. Nickel described as fuel and fuel storage; effectively a fuel storage tanker or bowser that Executive would refill as and when necessary. Transwest in turn supplied its own fuel system, its own fuel gear and its own insurance. The end result was that Transwest’s own employees would fuel its own helicopters using fuel provided by Executive and stored in a bowser owned by Executive.

[30]        As previously stated, Executive did not have a similar arrangement with MOF in the context of fuel service delivery to firefighting staging areas. However, in the Perry Ridge fire, Transwest was hired wet, as Roger Nickel put it; meaning that Transwest had contracted with MOF to provide helicopters for the fire and to provide its own fuel for those machines.  In turn, Transwest contracted with Executive to provide it with fuel and fuel storage capacity in the form of a fuel bowser. 

[31]        As such, at the material time on July 26, 2013, Executive found itself providing fuel to the Lemon Creek staging area at the behest of Transwest.  This arrangement did not ultimately suit Mr. Nickel who raised his objections with Mr. Knapik on August 1, 2013.  Fundamentally, Mr. Nickel would have been content had Transwest fuelled only its own helicopters using Executive’s bowser and fuel as had been the arrangement with respect to its Heli logging operations. However, as Mr. Nickel testified, although this is what had initially occurred, at some point Transwest advised him that they planned on fuelling other helicopters using Executive’s fuel and bowser. Mr. Nickel had numerous objections to this plan. The result was that after discussing the matter with Mr. Knapik on August 1, 2013, a service agreement was backdated so that MOF could pay Executive for fuel services from July 25, 2013 to the end of that particular fire.

[32]        This explains the service agreement entered into evidence in this trial as Exhibit #28 which shows Executive providing fuel services to MOF for a period of 8 days starting from July 25, 2013.  To explain the various contractual arrangements in place at the material time, the Crown called Jennifer Olynyk who was employed in the aviation operations section of the Southeast Fire Centre in July, 2013 with responsibility for contracting all of the helicopters required for firefighting as well as fuel services.

[33]        Ms. Olynyk confirmed that the service agreement entered as Exhibit #28 in this trial was backdated on August 1, 2013. Still, Ms. Olynyk testified that there was no fuel service contract in place between Executive and MOF on July 26, 2013.  I agree with the submissions of MOF that it does not follow from the backdating of the service agreement that there was a contract between MOF and Executive on July 26, 2013.  I find there was no such contract in place at the material time. There was not only no service agreement in place at the time; there is also no evidence of any telephonic or other communication between Executive and MOF on or before July 26, 2013 in which MOF sought fuel services from Executive for the Perry Ridge fire. The evidence, to the contrary, is that Transwest contracted directly with Executive for the provision of fuel services at the material time and that on July 26, 2013, Executive was delivering fuel to the Lemon Creek staging site further to its agreement with Transwest.

(ii)        Directions to Executive on July 25, 2013

[34]        Even though there was no contract between Executive and MOF, the parties still communicated regarding fuel delivery at all material times.  While Mr. Nickel testified that Executive received instructions as to where to direct its fuel for the Perry Ridge fire from Transwest, I find that the more detailed instructions came from Ms. Olynyk at MOF.  As best as I can glean from his testimony, on July 24, 2013, Mr. Nickel knew the staging area was at Lemon Creek and that that was where he was supposed to deliver fuel to Transwest.

[35]        Ms. Olynyk recalled speaking to Mr. Nickel on July 24, 2013. She advised him to have his driver call her the next morning to get directions to the Lemon Creek staging area. I am satisfied that on July 25, 2013, Executive’s driver, Mr. Duane Seery, did call the fire centre at the Castlegar airport from Winlaw and spoke to Ms. Olynyk who gave him directions to the Lemon Creek staging area. Mr. Seery was told by Ms. Olynyk to drive north back toward Revelstoke and when he crossed the bridge the road leading to the staging area would be on his right hand side.  As well as giving Mr. Seery GPS coordinates, Ms. Olynyk told him that the staging area was 10 minutes from Winlaw, that it could not be seen from the road and that there was a gate which would either be dummy locked or open.

[36]        Even despite receiving these instructions, Mr. Seery may or may not have missed the road to the staging area.  Certainly a fuel truck was seen on Lemon Creek road at approximately the time Mr. Seery would have been in the area.  I find that little turns on this incident but on balance I accept that the fuel truck driver seen on Lemon Creek road in the afternoon of July 25, 2013 by the witness Mr. Swetlishoff was Mr. Seery.

[37]        Ms. Olynyk’s testimony that she never heard from Mr. Seery again after providing him with detailed instructions to the Lemon Creek staging area went unchallenged in this trial. I accept her testimony in this regard. There is moreover no evidence that anyone from MOF or MOTI knew that Mr. Seery or any other fuel truck driver had missed the Lemon Creek staging area and instead turned onto Lemon Creek road.  This information did not appear, it seems, to have been communicated even to Mr. Nickel. I am entirely satisfied that this information was not communicated to Mr. Lasante before he began his fateful trip from Revelstoke to the Slocan Valley on July 26, 2013.

(ii)        July 26, 2013

[38]        There is no doubt, and I have alluded to this earlier, that Mr. Lasante was driving the fuel tanker truck that capsized into Lemon Creek in the afternoon of July 26, 2013.  Mr. Lasante’s opportunity to avoid that event is by necessity a central focus of this trial.  Still, I have not lost site of the fact that Mr. Lasante narrowly escaped severe injury or possibly worse.  It was as many witnesses have attested to in this trial obviously a traumatic event for Mr. Lasante: he found himself crawling out of a severely damaged vehicle into Lemon Creek; he ran several or more kilometres along a remote logging road covered in fuel oil; he had difficulty getting help on the highway; he was obviously distraught on reaching the Lemon Creek staging area.

[39]        The spill was not intended by Mr. Lasante but the question remains whether the event could have been avoided altogether had he taken greater care.

[40]        Mr. Lasante is a truck driver by trade. At trial, he testified he had been driving commercial trucks for 18 years. By July, 2013, Mr. Lasante had considerable highway driving experience and not inconsiderable experience on logging roads in either logging trucks or low beds and even in fuel trucks of the kind he was driving when the spill occurred.

[41]        Mr. Lasante’s day began ordinarily enough. It started at approximately 6:15 am when he prepared to drive from Kamloops to Executive’s shop in Revelstoke, finishing a fuel run begun the day before from Revelstoke to Executive’s fuel supplier in Burnaby and back. Mr. Lasante arrived at the shop sometime around 9:30 am. Fuel was transferred, and Mr. Lasante accepted Mr. Nickel’s offer to transport fuel to the Slocan Valley to refill Mr. Seery’s bowser.

[42]        The evidence does not establish that Mr. Lasante was in any way too tired to drive from Revelstoke to the Slocan Valley but it is clear that he was rushed even before leaving Revelstoke. Mr. Lasante candidly admitted when asked why he did not obtain a map or even a Google print out of the location where he was supposed to deliver the fuel, that there was a rush to get the fuel down to Mr. Seery’s bowser.  On that day, Mr. Lasante, while in the presence of Mr. Nickel, transferred 35,000 litres of Jet A-1 fuel from the tanker he had driven from Burnaby to another fuel storage tanker. Mr. Lasante agreed that Executive employee, Deborah McDonald, filled out his fuel transfer ticket - a document that must be completed to document a fuel transfer - because he was in a hurry.  It was, he testified, otherwise not his normal practice. The transfer note indicates the fuel was destined for delivery to Transwest at Lemon Creek. That too was filled out by Ms. McDonald.

[43]        Though Mr. Lasante agreed that he was required by law to fill out his driver’s daily log at every stop, his log for July 26, 2013, has no entries after 7:30 am. This is the case even though Mr. Lasante stopped for some time in Revelstoke at Executive’s shop, and later at the Galena Bay ferry terminal. Other than testifying that it was nice to stretch and rest a little while he was waiting for and while being on the ferry, Mr. Lasante offered no reasonable explanation for this failure.

[44]        I find that Mr. Lasante did attempt to obfuscate in cross-examination when he was pressed on the directions he received from Mr. Nickel before leaving Revelstoke with his load of fuel.  Moreover, Mr. Nickel’s evidence of the directions he recalls giving Mr. Lasante does not accord with that of Mr. Lasante. The evidence is clear that both knew Mr. Lasante had to deliver his fuel to Lemon Creek.  That much is evident even from the fuel transfer form filled out by Ms. McDonald.

[45]        Mr. Lasante recalls being given fairly specific directions by Mr. Nickel. While his evidence vacillated even during direct, I am satisfied based on the whole of Mr. Lasante’s testimony that he was told by Mr. Nickel to travel up to Lemon Creek where he would see a road off to the left and on that road he would find the Lemon Creek staging area.  Although Mr. Nickel’s testimony does not accord with Mr. Lasante’s on this point, I accept Mr. Lasante’s evidence as being more accurate even though it too was somewhat tortuous. Mr. Nickel’s evidence regarding directions to the staging area fluctuated wildly.

[46]        In his direct testimony on this issue, Mr. Nickel first told the court that he learned from Mr. Seery after Mr. Lasante had left Revelstoke for the Slocan that the Lemon Creek staging area was being moved.  When asked a second time about the instructions he gave to Mr. Lasante, Mr. Nickel stated that before Mr. Lasante left Revelstoke he told him to go to Lemon Creek and that someone would meet him on the highway.  As I will discuss shortly, this could not have occurred.

[47]        Later in direct Mr. Nickel testified that he left Mr. Lasante a cell phone message to tell him that someone would be meeting him on the highway. I accept that did occur.  Mr. Nickel did not have confirmation until several hours after Mr. Lasante left Revelstoke that someone from MOF would meet his driver on the highway and guide him to the new site.  He could not have given this information to Mr. Lasante before Mr. Lasante left Revelstoke.  Moreover, had Mr. Nickel told Mr. Lasante before he left Revelstoke that someone would meet him on the highway, there would have been no need to leave the same message subsequently on Mr. Lasante’s cell phone.  Mr. Nickel did ultimately agree during cross-examination by counsel for MOF that when Mr. Lasante left Revelstoke the plan was for him to meet Mr. Seery at what I am calling the Lemon Creek staging area.  This I find was what occurred, although I accept, as I have said, Mr. Lasante’s more detailed recollection of the direction given to him by Mr. Nickel.

[48]        What I accept of Mr. Nickel’s evidence on this point because it is corroborated by other evidence is that after Mr. Lasante left Revelstoke, Mr. Nickel received word that the Lemon Creek staging area was being moved to a new location. Mr. McVee, the Heli base manager for the Lemon Creek staging area at the material time, testified that he decided to move the staging area at approximately 9:00 am on July 26. There may well have been word of a pending move the evening before but no confirmation could have been received until after 9:00 am on July 26, 2013.  Moreover, Mr. Knapik testified to speaking to Mr. Nickel by telephone sometime after 1:30 pm in the afternoon of July 26. He recalled being asked by Mr. Nickel if the staging area had moved to which he replied that he thought it had though he had no knowledge of the details.  It was then that Mr. Nickel advised that his driver had just left Nakusp with a load of fuel and was in cell range. Mr. Nickel wanted someone to contact his driver to give him directions to the new site. Mr. Knapik agreed to contact dispatch to see if there was someone available to meet Executive’s driver and provide him with directions to the new staging area.

[49]        As Mr. Knapik promised, a radio dispatch was then sent out at 2:18 pm directed oddly enough to Mr. Eric Richardson, the Heli-coordinator for the Perry Ridge fire.  The message to Mr. Richardson read that “executive has a load of fuel headed their way, and he wasn’t sure of the new staging area, can someone meet the truck and guide him in”?  Having received the message in mid-air, Mr. Richardson replied that Heli-base 196 was the contact, meaning the message should be attended to by either Mr. McVee, the Heli-base coordinator or Mr. King, at the time employed as a fire protection assistant but also training as a Heli-base manager at the Lemon Creek staging area. Both had the distinct advantage over Mr. Richardson of actually being on the ground.

[50]        Although there is no evidence that Mr. King received the message, he had been advised earlier in the day by Mr. Seery that Executive was sending another fuel truck down from Revelstoke. Mr. King formulated a plan with some other personnel to have someone from MOF remain at the Lemon Creek staging area to meet the new truck and provide the driver with directions to the new site.

[51]        Under cross-examination Mr. Lasante agreed, though not without some prodding, that he spoke to Mr. Nickel on his cell phone before he left Nakusp and was advised by Mr. Nickel that someone was going to meet him on the highway.  Mr. Lasante also reluctantly acknowledged knowing that Mr. Seery had been moved to a new location.  This was certainly why Mr. Nickel had asked someone to meet Mr. Lasante; to direct him to the new location.  As the Crown put it to Mr. Lasante, in the circumstances it made no sense that he would nonetheless try to drive to the Lemon Creek staging area.   Mr. Lasante’s subsequent attempt to justify that decision holds no water.

[52]        In regard to the issue of the directions to the Lemon Creek staging area, I am satisfied on the evidence that MOF provided adequate directions to Executive through Mr. Seery on July 25, 2013.  There is no evidence that MOF knew or ought to have known on July 26, 2013, that Mr. Lasante was unaware of the location of the Lemon Creek staging area.  If it were the case it would have been a simple matter for Mr. Nickel to advise Mr. Knapik that his driver was coming in and needed directions to the Lemon Creek staging area as had been done the day before for Mr. Seery.

[53]        Before he left Revelstoke, Mr. Lasante was given some directions to the Lemon Creek staging area.  To the extent he was uncertain about the exact location; it would have been easy enough for him to obtain a map or to seek clarification from Mr. Nickel. Mr. Lasante was in a hurry. He was not attending to general details such as the filling out of his daily log. He was, by his own admission, in a sort of can do state of mind deciding when advised by Mr. Nickel that fuel had to get to the Slocan Valley that he would just go down and then they would be done with it.

[54]        Mr. Lasante was confident in his skills; he had experience; he had driven before with ambiguous instructions; he anticipated no problems that he could not handle. He was, unfortunately, wrong.

[55]        No one was on Highway 6 that day waiting for Mr. Lasante and no one would have been. Although nothing turns on this, had Mr. Lasante stopped at the side of the road near Lemon Creek he would almost certainly have been seen by someone exiting or entering the Lemon Creek staging area.  By his own admission, Mr. Lasante did not stop along the highway, not even for a moment. Rather, he decided to drive to the Lemon Creek staging area.

(iii)      Lemon Creek Road

[56]        As he approached the Lemon Creek bridge heading south on Highway 6, Mr. Lasante saw a road on his left which comported with the instructions given to him by Mr. Nickel.  There was, it is clear, no sign stating that this was a staging area for the Perry Ridge fire. There was a large highway sign on Mr. Lasante’s right just before the road signalling trucks turning; on it were some coloured ribbons of the kind used to provide direction on logging roads. There was also, I find, a cardboard sign also indicating that trucks were turning.  This sign was placed on the highway not to alert persons to the staging area but rather to avert an accident as many vehicles were pulling out of the staging area onto Highway 6.

[57]        None of these signs, some of which Mr. Lasante does not even recall seeing, caused him to think the road led to the Lemon Creek staging area.  He slowed but did not stop. He continued for a short distance again heading south on Highway 6 and came upon a road he recalled was designated as Lemon Creek road. Mr. Lasante felt confident this was the road leading to the staging area.

[58]        A number of photographs were entered into evidence in this trial depicting Lemon Creek road as it would have appeared to Mr. Lasante on July 26, 2013. The photographs taken by Mr. Cliff Razzo and entered as Exhibit #38 in this trial show the first nearly 2 kilometres of the road as it looked on July 27, 2013. I am satisfied that this is how Lemon Creek road would have looked to Mr. Lasante only the day before.

[59]        As Mr. Lasante turned left off Highway 6 onto Lemon Creek road, he would have traversed over 300 metres of maintained road. After 300 metres he passed a metal sign post bearing three signs. The top sign is orange in colour and diamond shaped. It reads “road closed” with an arrow pointing east. Beneath is a smaller rectangular sign, white in colour which indicates that the road is closed 2 km ahead. Finally, below that is a third sign which is also rectangular in shape and reads “end of maintained public road.”

[60]        As Mr. Razzo explained, the maintained portion ended at 300 meters from Highway 6 so that anything on Lemon Creek road east of the sign shown in photograph #1 of Exhibit #38 was unmaintained road.  Mr. Razzo was able to confirm that MOTI was responsible for that part of Lemon Creek road that was unmaintained up to the point it became a forest service road, though he was unable to confirm what part if any of the road was a forest service road.  I am satisfied based on the evidence of Mr. Craig Petit, a forest technician employed by the Valhalla Wilderness Society, and Ms. Katie Ward of MOTI, that the stretch of the road where Mr. Lasante’s truck capsized into Lemon Creek is within the jurisdiction of MOTI.

[61]        Slightly less than 2 kilometres beyond the group of signs just described is another large rectangular sign, orange in colour.  Painted in the middle of that sign is a red hexagonal shaped sign most commonly associated with a stop sign though the word stop does not appear on the sign.  Just beyond that, at the 1.97 kilometre mark, is a sign that generated some considerable debate in the trial largely concerning whether or not it was capable of swivelling. I find it was not.

[62]        The sign or more accurately signs at issue are two.  First there is a diamond shaped yellow and black checked sign. It is partially covered by a square shaped sign, white in colour, on which the words “road closed” are printed in large black print. A close up of the orange and black checked sign indicates it had been used for target practice as bullet holes are quite evident.

[63]        The signs are obviously affixed to a metal rod that juts out over the road although not so far as to prevent the movement of traffic. That rod is attached to another vertical metal rod that is, as evidenced in photograph #15 of Exhibit #6, planted in the ground in the ditch alongside the road. A third metal rod is attached diagonally between the two rods joining them together.  Despite the evidence of Mr. Razzo, it is not apparent to me how this sign could possibly swivel.

[64]        This sign as it would have been situated on July 26, 2013, would not have impeded Mr. Lasante’s vehicle from passing. Still I find that he would or should have seen it.  In photograph #4 of Exhibit #38, a concrete barrier is visible in the grass behind the sign I have just described. I find that barrier could not have been on the road on July 26, 2013 and also could not have impeded Mr. Lasante’s progress.  He is, I find, unlikely to have seen the concrete barrier.

[65]        Still, on the whole of the evidence, I am satisfied there was ample signage to indicate to any licensed driver in British Columbia, let alone a driver holding a class 1 license, that Lemon Creek road was closed.

[66]        Even accepting, for the sake of argument, the submissions of Mr. Lasante’s counsel that Mr. Lasante was effectively an agent of the Crown as he drove Lemon Creek road that day, it is Mr. Lasante’s own evidence that around the 3 kilometre mark he knew he was on the wrong road.  Any confidence he might have had up to that point that these signs were meant only for members of the general public was surely undermined once he realized he was on the wrong road.  At that point, all of the road closed signs he had just passed should have raised some extra concern in his mind but it does not appear that was the case. Confident in his experience, Mr. Lasante was satisfied that somewhere up the road there would be a place to turn around and so he decided to proceed.  Whether or not he gave any thought at the time to simply backing up, his evidence at trial was that it was just easier to go forward.

[67]        Mr. Lasante recalled in this trial that at about the 4 kilometre mark he came upon a narrow curved stretch of road. In direct he described it as nothing major. He testified that he took it slow and wide and his truck passed very easily.  He then found a safe area in which to turn his vehicle around and drove back in a westerly direction on Lemon Creek road.

[68]        As Mr. Lasante approached the same curved narrow stretch of road he had passed earlier he decided to take it even wider and so in his words put his truck almost into the ditch on the driver’s side as close to the rock face or uphill side of the road as possible.  The trailer, which is articulated, swung to the right of the truck by about five to six feet in Mr. Lasante’s estimation.  He watched in his passenger side mirror as the dirt under the wheels of his trailer fell away. Mr. Lasante had, at that instant, no time to react though he tried; the trailer and the truck collapsed into Lemon Creek as I have described.

[69]        The condition of the stretch of road that Mr. Lasante last negotiated before the spill is largely apparent in a number of photographs taken by Mr. Troy Kinsella, and entered as Exhibit #10 in this trial.

[70]        Mr. Kinsella lives in the vicinity of Lemon Creek. On July 26, 2013, he was working at home in the early afternoon when he smelled a fuel like odour. He decided to investigate the source and so rode his bicycle across Highway 6 and headed east up Lemon Creek road where he came upon Mr. Lasante’s overturned truck in the creek. Using his cell phone, Mr. Kinsella took photographs of the truck in the creek and of the road area directly above the truck. Mr. Kinsella’s photographs dramatically capture the magnitude of the crash from the perspective of Mr. Lasante and its impact on the environment of Lemon Creek.

[71]        But what the photographs also show is that as Mr. Lasante drove east over that narrow stretch of Lemon Creek road and then west back towards Highway 6 it would have been apparent to him that that part of the road was not only so narrow that he could not pass without driving off the travelled portion of the road, it was also visibly wet.

[72]        Still, Mr. Lasante decided to proceed and the question in this trial is whether he and or his co-defendants must be held liable for the result.

V.        Charges against Mr. Lasante

[73]        In determining whether the Crown has discharged its onus to prove the actus reas of all the offences charged, or alternatively whether these defendants or any of them have made out a due diligence defence, I propose to consider the case against each defendant separately. This I find is consistent with Justice Dickson’s ruling in R. v. Sault Ste. Marie that liability for strict liability offences must be direct; it must be based on the individual fault of each defendant.

[74]        Commencing with Mr. Lasante, the Crown charges firstly that Mr. Lasante is guilty of depositing a deleterious substance in Lemon Creek and secondly that he did so  under conditions where the substance may enter the Slocan River. Both of these are offences contrary to section 36(3) of the Fisheries Act.

(i)         The Actus Reas

[75]        The Crown submits it has met its onus to prove the actus reas of these two charges against Mr. Lasante having shown that he was driving the vehicle that collapsed into the creek which resulted in the deposit of the fuel.  Beyond that, there is no doubt on the evidence that the fuel travelled downstream of Lemon Creek and was introduced into the Slocan River and that both bodies of water are fish bearing waters. The testimony given by Dr. Birtwell, a well acknowledged expert in aquatic biology, who described the manner in which the fuel would have harmed and even killed fish and other aquatic life more than meets the Crown’s burden to demonstrate the substance deposited was deleterious.

[76]        Mr. Lasante submits that the element not proven by the Crown beyond a reasonable doubt is that he caused or allowed the fuel to be introduced into the waters of Lemon Creek and the Slocan River. Mr. Lasante submits the actus reas requires not only proof beyond a reasonable doubt of the thing done, but also that it was done voluntarily or by a wilful act.

[77]        Mr. Lasante relies on a number of case authorities, several of which apply specifically to proof of actus reas in manslaughter or second degree murder charges. Mr. Lasante relies on them largely for the distinction made in R. v. Maybin, 2012 SCC 24, for example, at para 15, which in turn quotes from R. v. Smithers, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506 in regard to the general principles of causation for manslaughter. As I understand the submissions, these cases are on point in that they hold up the distinction between factual and legal causation; the latter being a necessary element of proof of the actus reas of these serious offences.

[78]        The Crown submits this line of authority has no application in the case of strict liability offences and I admit to finding them unhelpful.  In any event, a not dissimilar argument is made by Mr. Lasante based on the reasons of the court in R. v. Hales, [1995] O.J. No. 735 which it is submitted provides support for the proposition that an accused may, in a strict liability offence, raise a defence “aimed at negating actus reas.” As the court wrote at para 15 of Hales, “this is particularly so when the element of voluntariness is the issue raised by the accused, since that element of voluntariness may go to the element of actus reas.”

[79]        Accepting that this is a correct statement of the law, I find the evidence does not go nearly so far as to raise a reasonable doubt as to the voluntariness of Mr. Lasante’s contribution to the spill.  The defence seems to me to have no air of reality.  Put another way, the evidence does not raise a reasonable doubt in my mind that another event caused the road to collapse in such a manner as to break the chain of causation and render Mr. Lasante morally innocent, though factually responsible for the spill.

[80]        In this and other parts of Mr. Lasante’ submissions the spill has been likened to an act of god; an intervening event that was unforeseeable by Mr. Lasante - an act of nature over which he had no control. It is argued that this court must accept Mr. Lasante proceeded on what he honestly thought was a safe road and despite his taking all due precautions the road simply gave way.

[81]        The act of god defence requires three elements; first it must be shown the occurrence could not have been foreseen. If it could have the defence does not lie. Secondly, the accused must have taken every precaution to avoid the offence, and yet could not avoid it; and thirdly the forces of nature involved must act without any human contribution: R. v. Syncrude Canada (2010), 53 C.E.L.R. (3rd) 194 (Alta Prov. Ct.); see also R. v. British Columbia Hydro and Power Authority, [1997] B.C.J. No. 1744, at para 69.

[82]        In the case at bar the photographic evidence, the evidence of Mr. Lasante and Mr. Lasante’s expert, Mr. Ryan, all demonstrate that Mr. Lasante drove a fuel truck laden with 35,000 litres of fuel over a narrow, wet stretch of an unmaintained back country road; an act which caused the tires of the trailer of the vehicle to pass twice over the untraveled portion of the road directly adjacent to a slope alongside which flowed a fast moving creek.

[83]        I cannot conceive that in these circumstances the collapse of the embankment was unforeseeable.  The evidence most certainly does not rise to the level of an act of god. It does not establish any reasonable doubt or even an air of reality to the defence that natural forces and natural forces alone are responsible for the spill.

[84]        I find that the Crown has made out the actus reas of the offences charged under the Fisheries Act.  For the same reasons, I find the actus reas has been made out against Mr. Lasante on counts 3, 4 and 7.  In this regard I accept firstly that the Jet A-1 fuel oil qualifies as pollution within the meaning of s. 6(4) of the EMA. I accept also that the evidence establishes beyond a reasonable doubt that Mr. Lasante did unlawfully introduce waste, namely the fuel, to be introduced into the environment in the course of engaging in a prescribed industry; that being the transport and storage of fuel. 

[85]        Mr. Lasante made no submission regarding the offences charged in counts 5 and 6 which are that the defendants unlawfully introduced or caused or allowed waste produced by a prescribed activity or operation to be introduced into Lemon Creek and from there into the Slocan River.  I accept, based on the testimony of Dr. Birtwell, that the deposit of the Jet-A-1 fuel constituted waste for the purposes of counts 3 and 4 and so could qualify as waste for these counts as well.  What I cannot accept is that this was “waste produced by a prescribed activity or operation.”

[86]        The Crown made no submissions in this regard other than pointing to the regulations governing prescribed activities.  I have no doubt Mr. Lasante was engaged is a defined prescribed activity when the spill occurred, but unless I read into s. 6(3) of the EMA the words “waste inadvertently produced while in the course of carrying out a prescribed activity…”, I cannot see that the Crown has proven these offences beyond a reasonable doubt.  I agree with the submissions of the provincial defendants in this regard and so acquit all the defendants on these two counts.

(ii)        The Defence of Due Diligence

[87]        As the court held at p. 377 of Sault Ste. Marie, while the Crown must establish beyond a reasonable doubt that the defendant committed the prohibited act, the defendant need only establish on a balance of probabilities the defence of reasonable care. That defence as noted earlier in these reasons will be available if the accused reasonably believed in a state of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. In regard to counts 1 and 2, this defence is effectively codified in s. 78.6 of the Fisheries Act.

[88]        What constitutes the “particular event” that care must be taken to have avoided is at issue in this trial, not just for Mr. Lasante but also for the provincial defendants MOF and MOTI.  As I noted earlier in these reasons, the parties each take a slightly different view of what particular event must have been avoided. The provincial defendants, focusing on the issue of foreseeability, argue they could not have foreseen a long list of acts or omissions leading up to the instant where Mr. Lasante’s vehicle rolled into Lemon Creek.  The Crown rejects this analysis arguing that the court need not focus on the concatenation of events leading up to the spill; rather, the event at issue is the discharge into the creek and the question is   was it foreseeable in the circumstances?  Mr. Lasante does not disagree but submits that the question of foreseeability turns on whether he could have foreseen the collapse of the embankment of Lemon Creek.  As such, it is his submission that the state of the embankment at the material time is critical to his defence. The Crown disagrees with this as well.

[89]        I accept the Crown’s submission that in law the event referred to by Mr. Justice Dickson as he then was in Sault Ste. Marie is the act charged; that is the deposit of the fuel into Lemon Creek and from there into the Slocan River.

[90]        This much is clear from statements for example that “(T)he defence of due diligence is available only if an accused can demonstrate that it has exercised due diligence to avoid the specific type of occurrence giving rise to the charge against it: R. v. Emil K. Fishing Corp, [2008] BCCA 490, at para 19. Or from the statement found in R. v. Petro Canada, 2003 CanLII 52128 (ON CA), [2003] O.J. No. 216 at para 20 where the court clarified that the particular event at issue was the discharging or causing the discharge of gasoline as described in the charge.

[91]        It is apparent from both these and the number of other cases referred to in this trial that an accused need not prove precisely how a particular event came about in order to utilize the due diligence defence but what is critical is the following passage from Petro Canada at para 20 which reads as follows:

…I do not think that the law requires the accused to prove precisely how the discharge came about - in this case precisely why the pipe failed - in order to avail itself of the due diligence defence. On the other hand, in a case where the accused can do this, it may be able to narrow the range of preventative steps that it must show to establish that it took all reasonable care. However, where, as here, the accused cannot prove the precise cause of the pipe failure the due diligence defence is not rendered unavailable as a result. That being said, it must be emphasized that to invoke the defence successfully in such circumstances, the accused must show that it took all reasonable care to avoid any foreseeable cause.

[92]        In a text on the law of due diligence, this passage in Petro Canada is described as follows:

If the cause of a discharge could range from A to Z, all due diligence in this spectrum must be explored.  If, on the other hand, the cause can be pinpointing as “C”, the only due diligence needs to be shown relating to “C”.

Regulatory and Corporate Liability From Due Diligence to Risk Management, Archibald, Jull and Roach: Canada Law Book, Vol 1, Release No. 26, July, 2015, Chapter 4, p. 4-12.

[93]        Therein lies the nub of the issue in this trial. The Crown submits that at least with regard to the second part of the due diligence defence the offence was foreseeable and the defendants must demonstrate they took all reasonable steps to avoid that event.  This includes that the MOF must show it took all reasonable care to ensure that fuel truck drivers could find the Lemon Creek staging area; that MOTI took all reasonable steps to ensure that traffic did not proceed up Lemon Creek road and that Mr. Lasante took all reasonable steps to avoid the spill whatever was reasonably required from the time he left Revelstoke.

[94]        I find on the reasoning in Petro Canada that it is open to these defendants to narrow the range of preventative steps necessary to prevent the spill by establishing the cause of the spill.  I find it neither necessary nor helpful for these defendants to outline steps taken to prevent certain behaviours or acts that in my view have no bearing on the actual cause of the accident. I find support for this in the following passages from R. v. Imperial Oil Ltd., [2000] BCCA 553, at paras 22 to 26 where the court voices its agreement with the argument that no amount of careful conduct will support the defence of due diligence if the conduct has no bearing on the cause of the offence:

22  The Crown says that the only error made by the trial judge was in her final conclusion that, in spite of the appellant's failure to exercise reasonable care, it had nevertheless exercised due diligence in establishing its "Haz-Ops" Program, and in employing its other measures for environmental safety. That was the view of the summary conviction appeal judge, and the Crown says she was right.

23  With respect, I agree. The focus of the due diligence test is the conduct which was or was not exercised in relation to the "particular event" giving rise to the charge, and not a more general standard of care.

24  In his book Regulatory Offences in Canada, Liability and Defences (Canadian Institute for Environmental Law and Policy) Carswell 1992, John Swaigen comments on the conduct to which the due diligence must relate:

It is clear in common law negligence that careless acts, no matter how negligent, cannot form the basis for a remedy unless they cause the harm complained of, and, conversely, no matter how careful a person is generally, his general level of competence and care are not relevant to the issue of whether he was negligent in the case before the court. The negligence or case to be considered as inculpatory or exculpatory is only that in relation to the specific incident that is the subject matter of the proceedings. (p.98)

25  In R. v. City of Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, the Supreme Court of Canada defined the defence of due diligence in part as an absence of negligence with respect to the specific event which constitutes the offence. In relation to this issue the Court commented variously:

In his work, Public Welfare Offences, at p.78, Professor Sayer suggests ... the defendant should not be denied the right of bringing forward affirmative evidence to prove that the violation was the result of no fault on his part. (pp.1313-1314)

The doctrine (of due diligence) proceeds on the assumption that the defendant could have avoided the prima facie offence through the exercise of reasonable care and he is given the opportunity of establishing, if he can, that he did in fact exercise such care. (p.1314)

26  Similarly, the analysis of due diligence by the Ontario Court of Appeal in R. v. Rio Algom (1988), 1988 CanLII 4702 (ON CA), 3 C.E.L.R. (N.S.) 171 focused on whether the defendant took all reasonable precautions to prevent the occurrence of the prohibited event, rather than on a more general level of good conduct. The trial court had considered the defendant's general safety record, rather than its level of care relevant to the specific offence. The Court of Appeal concluded:

... the trial judge appears to have been satisfied that the respondent, in the operation of the mine where the accident took place, has kept safety foremost in its corporate mind at all times and has a good inspection and reporting system in effect to accomplish this purpose. Those are relevant facts to be kept in mind with respect to sentence. They do not, however, assist the respondent to avoid responsibility for the lack of care on its part that resulted in the unfortunate fatal accident. The respondent has failed to prove it was not negligent with respect to the circumstances that caused the accident. (p.184)

[95]        Just as a good inspection and reporting system was unhelpful in R. v. Rio Algom in answer to the death of their worker by the foreseeable result of the company’s failure to repair a gate, I think it equally true that even negligent acts which have no bearing on the cause of a statutory offence are also not helpful in a due diligence analysis. To reiterate from the work of John Swaigen referred to above, “The negligence or case to be considered as inculpatory or exculpatory is only that in relation to the specific incident that is the subject matter of the proceedings.

[96]        I find on the evidence before me that the spill or the actus reas was caused by the falling away of the soil in the embankment of Lemon Creek at the 4 kilometre mark when Mr. Lasante passed over it with his fuel tanker truck.  I find it is open to Mr. Lasante to advance a defence of due diligence in regard to the circumstances of this event by showing either he reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or that he took all reasonable steps to avoid the particular event.

[97]        In regard to the first test, I accept as the Crown submits that in the context of a strict liability offence, “the defendant’s mistake must not only be honest but (using an objective standard) must also be reasonable: R. v. Tavares, (1996) 144 Nfld. & P.E.I. Rep. 154 (NLCA), at para 28.

[98]        Mr. Lasante submits that he reasonably believed the road was safe based on his experience and his firm belief that he was on the right road.  I find that whatever Mr. Lasante’s belief may have been up to the 3 kilometre mark of the road, he could have had no such belief at the point of the spill. He knew when he travelled back down Lemon Creek road after turning his vehicle around that he was on the wrong road; that the signage he passed along the way clearly indicated the road was closed. He had just passed what he knew to be a narrow, wet stretch of road that caused him to take extra care to drive as close as he could to the uphill side of the road.

[99]        If Mr. Lasante had been watching as he testified he had done when passing through the curved stretch the first time, he would have seen, as Mr. Ryan testified, that the wheels of his trailer travelled well off the travelled portion of the road and onto the grass shoulder. The conditions that Mr. Lasante would have been aware of are well documented in this trial.

[100]     Moreover, as Crown submits, Mr. Lasante did nothing to assure himself he was on a safe road. He made no inquiries; he made no effort to get his bearings; he did not step out of his vehicle to examine the road. In these circumstances, I find that Mr. Lasante has not met his onus to establish on balance that he had a reasonably held belief the road was safe at the point where the spill occurred.

[101]     With respect to the second part of the due diligence test, I have already found that the collapse of the embankment in the circumstances was foreseeable by any reasonable person.  As such, it remains to be determined what reasonable steps Mr. Lasante took to avoid this foreseeable event. 

[102]     The standard of care is not one of perfection; that much is reiterated in many of the cases before me.  It is the case that in regulatory or public welfare offences the standard of care must reflect the diligence of a reasonable person having the expertise suitable to the activity in issue: R. v. Placer Developments (1983) 4 F.P.R. 336.  The standard is what is reasonable in all the circumstances but there are in the case authorities a list of factors including the nature and gravity of the harm, the foreseeability of the harm, the alternative solutions available, and so forth that can be considered in determining the standard of care: R. v. Gondor (1982) 1981 CanLII 3207 (YK TC), 62 C.C.C. (2d) 326; R v. Commander Business Furniture Inc., (1992), 9 C.E.L.R. (N.S.) 185 (Ont. C.J.) at p. 212

[103]     The steps taken by Mr. Lasante who knew he had to take some extra care on the curved section of the Lemon Creek road was to drive his cab as close as he could to the uphill side of the road so that his trailer tires did not travel over the embankment.  Still, as Mr. Ryan testified, and as evidenced in Exhibit #52, there was no way Mr. Lasante could have driven that part of the road without his trailer tires going off the travelled portion of the road.  As Mr. Ryan also testified, it is apparent from photograph #6 of Exhibit #10 that on the inward bound part of the trip Mr. Lasante’s trailer tires were well off the travelled portion of the road. 

[104]     Is it enough given the inherently dangerous nature of the substance that Mr. Lasante was hauling that he simply drove his truck as well as anyone could have over that portion of the road?  In this regard I find myself in agreement with the Crown that this alone does not constitute the taking of all reasonable steps to avoid the specific event. Mr. Lasante took one step; that was to continue driving as best he could along a road he was unfamiliar with; in a fuel truck loaded with a dangerous substance, even once he knew he was on the wrong road. Mr. Lasante reiterated many times in his testimony that “every road is different.”  As such he could not derive much comfort from his previous experience except that he was comfortable driving narrow, unmaintained roads. 

[105]     As the Crown notes, Mr. Lasante did not even try to back up once he realized he was on the wrong road and this occurred well before he reached the critical juncture.  Even once Mr. Lasante arrived at the narrow curved stretch of Lemon Creek road which was obviously wet he did not get out to give the road and embankment even the most cursory examination. As he passed over this stretch of road on the inbound trip, Mr. Lasante would have seen that his trailer tires extended well out over the travelled portion of the road. He would have known even then that once he turned around and headed out back toward highway 6 his tires would also by necessity have to stray off the travelled portion of the road yet he did nothing to ascertain whether it was safe to drive back over that portion of the road. 

[106]     In my view, someone charged with the transport of a dangerous substance cannot be said to have exercised due diligence by simply driving on with the hope that the truck will make it out and assuming the road is safe with no information on which to base that assumption.

[107]     For these reasons I find that Mr. Lasante has not discharged his onus to show on balance that he exercised all due care and attention to avoid the offences charged.

(iii)       Charges under the EMA

[108]     Mr. Lasante has been charged with 8 offences, under both the Fisheries Act and the EMA.  My findings that Mr. Lasante did not exercise reasonable care to avoid the deposit of the fuel in the waters of Lemon Creek and the Slocan River contrary to s. 36(3) of the Fisheries Act apply with equal force to counts 3, 4, 7 and 8 of the information.  For the same reasons, I find that Mr. Lasante did unlawfully cause waste to be introduced into these waterways while in the course of conducting a prescribed trade, industry or practice contrary to s. 6(2) of the EMA, and that Mr. Lasante did unlawfully introduce waste into Lemon Creek and the Slocan River in such a manner and quantity as to cause pollution contrary to s. 6(4) of the EMA.

[109]      Of the offences which I find have been proven by the Crown and for which I am not satisfied Mr. Lasante has made out a defence of due diligence, it is apparent that many are duplicitous.  The Crown invites this court to determine for itself which charges to convict on and which to stay. However, before addressing the specific charges and the matter of the multiplicity of charges, I must address Mr. Lasante’s application for a stay based on pre-charge delay and a stay based on the principles in R. v. Jordan, 2016 SCC 27.

VI.      Pre-Charge Delay

[110]     Mr. Lasante, seeks an order pursuant to ss. 7 and 11 of the Charter staying these proceedings on the grounds of pre-charge delay. 

[111]     There is no dispute that although the spill occurred in July, 2013, Mr. Lasante was not charged until July 22, 2016.  In the intervening period, the Conservation Office of the Ministry of Environment conducted an investigation which ultimately resulted in charges being laid but not before a private prosecution was commenced and then stayed.  The stretch of road at issue herein was also repaired by the defendant MOTI.  Even before then, within days of the spill, the Conservation Office had concluded the spill site was contaminated for purposes of an investigation as, among other things, Executive brought in two tow trucks and removed its truck and trailer from the creek.

[112]     By the time charges were laid against Mr. Lasante, the road as it existed when the spill occurred was entirely altered.  MOTI shored the bank with large boulders making it impossible, for example, to measure the width of the road as it was on the day of the spill.  Still, Mr. Lasante’s expert, Mr. Ryan, was able to utilize measurements taken in 2015 by Corporal Barnhart, an RCMP accident reconstruction expert, to craft an opinion that Mr. Lasante could not have traversed that stretch of the road without his trailer tires going off the travelled portion.

[113]     In closing submissions as well as in submissions on an application for a voir dire which was denied with reasons dated January 29, 2018, both parties referred this court to para 31 of R. v. Piccirilli, 2014, SCC 16, which provides that proceedings stayed for abuse of process generally fall into two categories; first, where state conduct compromises the fairness of an accused’s trial (the “main” category) and second, where state conduct risks undermining the integrity of the judicial process (the “residual” category).  In both instances the test used to determine whether a stay of proceedings should be granted is the same.  In regard to the main category, there must be actual prejudice to the accused’s right to a fair trial. In the residual category it must be apparent that the prejudice to the integrity of the justice system will be manifested, perpetuated or aggravated by the ongoing conduct of the trial or its outcome. There must be no other alternative remedy to cure the prejudice. Finally, any uncertainty with regard to the first two steps of the test must be balanced in favour of a stay.

[114]     I have already found that Mr. Lasante’s application rests on the main category of abuse of process; that is to say that the pre-charge delay in this case has inalterably undermined his ability to make full answer and defence to these charges.

[115]     In determining this application I also bear in mind that a stay of proceedings may be granted in only the clearest of cases. In R. v. Neidig, 2015 BCCA 489, the court of appeal put it this way at para 61.

62  A stay of proceedings is the most drastic remedy a criminal court may order, and will only be granted in the "clearest of cases", where state conduct has irreparably compromised trial fairness, or will cause irreparable prejudice to the integrity of the judicial process if the prosecution proceeds. The reluctance to grant a stay reflects the strong societal preference for a verdict on the merits. A stay of proceedings is an unsatisfactory result in that it denies both the accused and the community the legitimate expectation of such a verdict. Accused persons seeking a stay thus face a heavy onus. They must establish, first, that the alleged prejudice "will be manifested, perpetuated, or aggravated through the conduct of the trial, or by its outcome" and, second, that there is no alternative remedy that can redress the prejudice. If uncertainty remains, the court must balance the interests in favour of a stay with the societal interest in having a final decision on the merits: R. v. Babos, 2014 SCC 16 at paras. 30-32, 44; Bero at para. 43

[116]     I cannot be satisfied that Mr. Lasante’s constitutional right to make full answer and defence is so clearly prejudiced in this case as to justify a stay of proceedings.  In my view, Mr. Lasante has made out little in the way of prejudice to his right to full answer and defence by the alterations to the embankment of Lemon Creek road at the point of the spill.  Firstly, the alterations have not impeded his ability to present expert opinion that he negotiated that stretch of road as well as any driver could have given the curvature of the road and the particular vehicle he was driving. I accept that opinion.  Secondly, I find no evidence to support an argument - and that is all that is before me - that a geotechnical report could help to determine why the embankment collapsed. Such evidence would be relevant to support a defence if it could be shown the embankment collapse was the result of a natural event beyond the control of Mr. Lasante and was therefore not foreseeable. 

[117]     I have already found the spill was foreseeable and that there is no air of reality to the notion that it occurred as a result of natural events operating independently of Mr. Lasante.

[118]     As an example, if it was suggested on the evidence that the embankment on the cliff or uphill side of the road collapsed carrying Mr. Lasante and his truck with it into the creek, the defence would have an air of reality. Here, the evidence is clear not only in the testimony of Mr. Lasante but also in the photographs taken by Mr. Kinsella that the embankment on the creek side collapsed under the wheels of Mr. Lasante’s trailer.  Without more than simply submissions on behalf of Mr. Lasante that a geotechnical report could assist in his defence, I cannot be satisfied this is one of the clearest of cases demanding a stay of proceedings.  On its face, the possibility that such a report could have been generated even hours after the spill seems to me to be highly improbable. 

[119]     For these reasons, the application for a stay based on pre-charge delay is denied.

VII.      Jordan Application

[120]     Mr. Lasante seeks a stay of proceedings for unreasonable delay pursuant to s. 11(b) of the Charter. Mr. Lasante relies on R. v. Jordan as authority for the proposition that a delay from the date of charge to the end of trial, including the giving of a decision, is presumptively unreasonable in Provincial Court if the time period exceeds 18 months.   At the time of the application, on the second to last day of the trial in this matter, the time period between the laying of the charges and the anticipated conclusion of the trial was 18 months and 12 days. As Mr. Lasante also pointed out, this did not account for the additional time it would take the court to give reasons as the parties rightly anticipated the court would need some time to consider the evidence and the submissions.

[121]     The Crown submits that when the appropriate period of delay attributable to the defence is subtracted from the relevant time period, as Jordan demands it must, the Jordan time period is not exceeded so that the application should be dismissed. It bears noting in this regard that Mr. Lasante’s application for a stay based on s. 11(b) is based only on the submission that the Jordan timeframe has been exceeded.

[122]     In its written submissions on this point, the Crown set out various time lines, the most critical relating to various dates offered by the court to the defendant for the continuation of this trial.  I accept that although the last week of this trial was set for January 29 to February 2, 2018, already outside the Jordan timeframe, the Crown was available for dates offered in the week of October 16, 2017 and for the months of November and December.  No one of Mr. Lasante’s counsel was available on those dates.

[123]     As the court in Jordan writes at para 60, the application of the Jordan framework calls first for a calculation of the total delay from the charge to the actual or anticipated end of the trial.  The court then speaks of two components of delay and in this instance it is the second component, the delay caused solely by the conduct of the defence that is at issue. That component is discussed at para 64 of Jordan as follows:

64  As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), 2003 CanLII 24447 (ON CA), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82).

[124]     I accept that the months of November and December and those parts of January 2018 wherein the Crown was available during weeks offered by the court and the defendant was not should be deducted from the time period calculated for the purposes of unreasonable delay.  For these reasons alone, it is clear that Jordan timeframe has not been exceeded even at the date of giving these reasons.  I find this particularly compelling as the trial was scheduled to complete on December 1, 2017, still within the Jordan time frame but did not as Mr. Lasante’s counsel was unable to proceed past the morning of November 28, 2017.

[125]     The court in Jordan, at least in the majority reasons, also calls on trial judges to exercise discretion bearing in mind the realities of trial work when a trial is scheduled to conclude below the ceiling but ultimately exceeds it.  In such instances the court writes at para 74 that:

“…the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances.”

[126]     To the extent this trial did not conclude as scheduled on December 1, 2017, I am satisfied that it was through no fault of the Crown; the circumstances were at the very least unavoidable.  I attribute no fault or delay to the Crown arising out of its decision to scale back the number of witnesses it called though Mr. Lasante maintains he was caught off guard.  In the end, this was a somewhat complex trial that proceeded apace but did not for the reasons outlined above conclude as scheduled.

[127]     I am satisfied firstly that when the time attributable to defence delay is taken into account, the time from the charge to the conclusion of the trial has not exceeded the Jordan timeframe. If I am wrong, I nonetheless find the circumstances to be exceptional and outside of the control of the Crown.  The same time frame must therefore be deducted from the total period from charge to conclusion of trial so that on either ground I find the Jordan timeframe has not been exceeded.

[128]     For these reasons Mr. Lasante’s application for a stay based on s. 11(b) is denied.

VIII.     R. v. Kienapple

[129]     Before discussing Mr. Lasante’s application for a stay based on ss. 7 and 11 of the Charter, I had determined I was satisfied firstly that the Crown had made out the actus reas on counts 1, 2, 3, 4, 7 and 8 of the information.  I found also that Mr. Lasante had not made out a due diligence defence on the balance of probabilities.

[130]     Many of the offences which have been proven are however, clearly duplicitous. Counts 1 and 2 of the information together charge that Mr. Lasante deposited a deleterious substance into Lemon Creek in such a way as that the substance also entered the waters of the Slocan River, both of which are waters frequented by fish.  Counts 3, 4, 7 and 8 charge in various ways that Mr. Lasante unlawfully introduced waste into Lemon Creek and the Slocan River. These charges too have been made out.  Of all the counts charged, I find count 8 to be the most broadly worded; it encompasses all of the other charges in that it charges Mr. Lasante with unlawfully introducing waste, namely Jet-A-1 fuel oil into both Lemon Creek and the Slocan River in such a quantity as to cause pollution in violation of s. 6(4) of the EMA.  Pollution in the EMA is defined as the presence in the environment of a substance or contaminant that would substantially alter or impair the usefulness of the environment.  This definition in my view covers the deposit of a deleterious substance in waters frequented by fish, and the other effects of the spill as outlined in my reasons.

[131]     For these reasons, and based on the principle in R. v. Kienapple, Mr. Lasante must stand convicted on count 8 of the information. The remaining charges are hereby stayed.

IX.      The case against the Provincial Defendants

(i)         The Defendant MOF

[132]     Turning to the provincial defendants and commencing with the MOF, counts 1 and 2 of the information charge that MOF unlawfully deposited or permitted the deposit of a deleterious substance into Lemon Creek and consequently the Slocan River.  As with Mr. Lasante, the Crown bears the onus of proving the actus reas beyond a reasonable doubt. MOF submits the Crown has failed to discharge its onus on a number of grounds.

[133]     With respect to what must be proven against this defendant by the Crown it is, I find, useful to refer back to R. v. Sault Ste. Marie and particularly the discussion by Mr. Justice Dickson as he then was on the question of causing or permitting environmental pollution.

[134]     It was established in Sault Ste. Marie that the City had contracted with a waste disposal company to dispose of all of the city’s refuse. Under the agreement, the company was obligated to provide the disposal site, labour, materials and equipment.  The site chosen by the disposal company bordered on a creek which in turn ran into a nearby river.  The site selection and the manner of the waste disposal were careless with the result that pollution ensued.  The question in Sault Ste. Marie was whether the City could be held liable for the pollution offences as well as its waste disposal contractor.

[135]     Having concluded that the offence charged was a strict liability offence and setting out the defences in the famous passage referred to earlier, Mr. Justice Dickson set out his views of the way in which the principle of strict liability should be applied to determine whether a person or a municipality had committed the actus reas of discharging, causing or permitting pollution.  He wrote as follows at para 68:

The prohibited act would, in my opinion, be committed by those who undertake the collection and disposal of garbage, who are in a position to exercise continued control of this activity and prevent the pollution from occurring, but fail to do so. The "discharging" aspect of the offence centres on direct acts of pollution. The "causing" aspect centres on the defendant's active undertaking of something which it is in a position to control and which results in pollution. The "permitting" aspect of the offence centres on the defendant's passive lack of interference or, in other words, its failure to prevent an occurrence which it ought to have foreseen. The close interweaving of the meanings of these terms emphasizes again that s. 32(1) deals with only one generic offence.

[136]     As Justice Dickson emphasized later in his reasons in Sault Ste. Marie, the municipality was in a position to control its contractors and to supervise their activity either through the provisions of contract or by by-law.  The court was obviously of the view this was a critical factor in assessing whether the City was in a position to control the activity which it undertook and which caused the pollution.

[137]     In this case the Crown has not proven beyond a reasonable doubt that MOF exercised similar control over Mr. Lasante. The Crown has shown that a Standing Offer was in place between MOF and Executive at the material time but the evidence falls well short of establishing that MOF had made a fuel service request in any form of Executive before Mr. Lasante left Revelstoke for the Slocan Valley on July 26.  To the contrary, as Mr. Nickel testified, on that day Executive was delivering fuel pursuant to its agreement with Transwest.

[138]     This failure to prove control beyond a reasonable doubt should end the matter but MOF has also been charged with permitting the deposit of fuel oil into Lemon Creek.  Here the question is whether the Crown has proven beyond a reasonable doubt that MOF, having been able to foresee the polluting event, did nothing to prevent it.  I find the Crown has not discharged its onus.

[139]     This case is not like Sault Ste. Marie where the municipality simply handed over it refuse program to a contractor all the while making no effort to determine if the job would be carried out properly.  Here, MOF was at the material time in a long term business relationship with Executive.  Its agreement with the company requires the supplier to hold all permits, licenses, certificates, approvals and statutory authority to perform any of its obligations under the standing offer.  MOF can, in my view, rely on the fact that the transport of the fuel it needs to fight fires is a highly regulated industry; the drivers must be certified; they must be qualified and they must be insured.  This is a far distance from the hands off approach apparently taken by the City of Sault Ste. Marie.

[140]     Accepting that it was foreseeable to MOF that a truck carrying fuel necessary to fight a forest fire could be involved in an accident resulting in a fuel spill and consequent environmental damage, I do not see that a case has been made out that MOF permitted that to occur. The evidence does not establish beyond a reasonable doubt that MOF was in a position to control the statutory violation and yet did nothing to prevent it. For one thing, the very contractual provisions and licensing and regulatory regimes in place would guard against the likelihood of a driver of such a vehicle failing to exercise proper care.  To the extent MOF had any obligation to ensure Executive knew where to send its drivers, I am satisfied this was done on July 25, 2013 when Ms. Olynyk gave Mr. Seery specific instructions to the Lemon Creek staging area.  I find these steps bring MOF well outside the case of Sault Ste. Marie.

[141]     My findings with respect to the Crown having failed to prove the actus reas of counts 1 and 2 against MOF apply equally with respect to the charges in counts 3, 4, 7 and 8.  The Crown has not proven the actus reas on these counts beyond a reasonable doubt. 

[142]     Counts 3, 4, 7 and 8 read together charge that MOF introduced, caused or allowed the Jet A-1 fuel oil to be introduced into the waters of Lemon Creek and then the Slocan River contrary to ss. 6(2) and (4) of the EMA.  I agree with the submissions of MOF that the word “introduce” as defined in s. 1 of  the EMA would not apply in its case but for the word “allow” which is charged separately in any event.  As for causing the spill, I have already referred to the lack of any evidence of control by MOF at the material time. But can it be said that MOF caused the spill by somehow contributing to Mr. Lasante’s misdirection? 

[143]     Assuming without accepting that MOF negligently failed to place adequate signage outside of the Lemon Creek staging area, and assuming that was a contributing factor to Mr. Lasante’s misdirection, it is clearly not the cause of the spill although it is apparent that had Mr. Lasante gone down the right road, the spill on Lemon Creek road would not have occurred. Still, as demonstrated by the following passage at para 39 of the reasons of Groberman J., as he then was, in Bevilaqua v. Altenkirk, 2004 BCSC 94, this alone is insufficient to establish causation:

39  To demonstrate that negligence is causative of damage, the defendant must show more than that but for the negligence, the damage would have been avoided. For example, a person who mistakenly boards the wrong bus at a bus stop and is later injured when the driver loses control of the vehicle is merely unlucky rather than contributorily negligent. Even though the passenger may have unreasonably taken the wrong bus, and even though the passenger would have been uninjured but for the mistake, there is no causal connection between the negligence and the injury. In order to constitute contributory negligence, a person's carelessness must have more than a fortuitous connection with the damage suffered.

[144]     The evidence falls far short of establishing beyond a reasonable doubt that whatever MOF did or did not do by way of signage or directions caused the spill or could be characterized as the proximate cause.  The fuel spill was not caused because Mr. Lasante drove down the wrong road; it was caused because he failed to take care and proceeded without taking any steps to determine if it was safe to do so once he knew he was on the wrong road.

[145]     For the reasons already given I find also that the Crown has not proven beyond a reasonable doubt that MOF allowed the deposit to occur.  This seems to me to be no different than charging that MOF permitted the deposit to occur and I find the evidence falls far short of establishing that fact beyond a reasonable doubt. 

[146]     I find that the Crown has not discharged its onus to prove the actus reas of any of the offences charged against MOF.  As such, I acquit MOF on all counts.

(ii)        The defendant MOTI

[147]     The Crown charges that the defendant MOTI, like MOF, caused, permitted or allowed the deposit of a deleterious substance, waste or pollutant into Lemon Creek and from there into the Slocan River.   As with MOF, the first question is whether the Crown has proven the actus reas of the offences charged; has it proven MOTI caused, or permitted or allowed the deposit of the fuel oil into these waters?

[148]     Setting aside the issue of causation for the moment, I will address the charges that MOTI permitted or allowed the deposit to occur.  As I have discussed already in regard to the defendant MOF, to prove MOTI either permitted or allowed the deposit, the Crown must prove firstly that the specific event was foreseeable.

[149]     I am left with no doubt that a motor vehicle incident of some sort was foreseeable in so far as Lemon Creek road was narrow and unmaintained. I would add however that the foreseeability of the particular event was remote for MOTI given the nature of the road. 

[150]     Even assuming a motor vehicle accident was foreseeable, I find that the Crown had not discharged its onus to prove that MOTI allowed or permitted the spill to occur.  The signage which ought to have served warning on any reasonable driver not to travel the road is sufficient evidence to establish reasonable doubt on these charges.  MOTI has not sat idly by and permitted or allowed the spill.

[151]     But the Crown also charges MOTI with causing the spill. Its case is that MOTI caused the spill by failing to barricade Lemon Creek road.  Even accepting that the spill would not likely have occurred had the road been barricaded it remains the case that this failure, even if negligent on the part of MOTI, did not cause the spill. The spill was caused by Mr. Lasante’s failure to take any care to ensure the stretch of road where the spill occurred was safe to travel on.

[152]     If I am wrong and the lack of a barricade could be said to be a proximate cause of the spill, there remains the question of control. I accept the Crown has proven MOTI has jurisdiction over Lemon Creek road at the point of the spill but MOTI’s control over Mr. Lasante is nothing like that discussed by Dickson J. in Sault Ste. Marie. If MOTI has control over Mr. Lasante, it is no different than the control MOTI exercises over every road user in the Province.  MOTI has not actively undertaken to control the actions of Mr. Lasante.

[153]     Even if I assume the Crown has proven the actus reas of counts 1 and 2 against MOTI in that the evidence is sufficient to establish control, there remains the defence of due diligence.  This is not, in my view, an instance where MOTI can be said to have been labouring under a mistaken but innocent belief. Rather, the question must be whether MOTI has established on balance of probabilities that it took all reasonable steps in the circumstances to prevent the specific event from occurring.

[154]     I have found the spill occurred because Mr. Lasante failed to exercise the degree of care a reasonable person would have exercised in the circumstances.  Part of that finding is based on my finding that the signs posted by MOTI on Lemon Creek road should have been sufficient to warn any reasonable driver, let alone a driver holding a class 1 license hauling a dangerous substance, that danger lay ahead.  To the extent MOTI was obliged to take all reasonable steps to avoid this spill, I find it did so by the signage it posted along Lemon Creek road: signage which indicated the road was not only unmaintained but that it was closed.

[155]     Moreover, Lemon Creek road was barricaded from time to time; but not on the day Mr. Lasante drove it.  As Ms. Ward testified, the concrete barrier shown in photo #4 of Exhibit #38 is moved from time to time by backcountry road users and is put back in place from time to time by MOTI’s contractor, Yellowhead Road and Bridge. 

[156]     If MOTI fell below the standard of care in this case because the barricade was not in place on July 26, 2013, it would follow that the standard of care would require MOTI to have in place a system to ensure all of its unmaintained roads were barricaded at all times. This is because MOTI can never know when a driver like Danny Lasante will decide to travel along an unmaintained road.  In my view, this demands a standard of care akin to perfection; it is all out of proportion.

[157]     The signage in place along Lemon Creek road was sufficient to alert any reasonable driver that the road was closed.  In addition, MOTI had in place a barrier which was moved from time to time yet also properly repositioned from time to time.  Together these two preventative systems satisfy me that MOTI exercised all reasonable care to avoid the statutory offences charged in the circumstances of this case.

X.        Conclusion

[158]     In conclusion, on July 26, 2013, Mr. Lasante was transporting a dangerous substance in a manner that I have found fell below the standard of care that ought to have been exercised in the circumstances.  The result, though certainly not intended by Mr. Lasante, was an environmental disaster, however localized. Had Mr. Lasante taken even a little more care, the spill might not have occurred.  Certainly the step he did take, which was to drive to the best of his ability over a road he knew or ought to have known was closed and one that was obviously unmaintained, narrow, wet and carved out of a hillside beside a fast moving creek, did not satisfy the test for due diligence.

[159]     Having failed to take reasonable care, Mr. Lasante is guilty of having deposited a deleterious substance into both Lemon Creek and the Slocan River. The substance constituted waste as that is defined in the EMA, and it polluted these waters. Count 8 of the information broadly covers and includes all of these offences and it is the count on which I have convicted Mr. Lasante.

[160]     I have, for the reasons just outlined, acquitted the defendants MOF and MOTI on all counts.

L. Mrozinski, PCJ