ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
— AND —
H.K. United Trucks Limited
Appellant
Reasons for Judgment
(In the matter of an Appeal from Convictions & Sentence under
The Environmental Protection Act, R.S.O. 1990, c. E.19)
Before Justice C.A. Brannagan
Submissions heard on 2 June 2026
Written Reasons delivered on 3 July 2026
Mr. A. Engel counsel for the Appellant
Mr. N. Adamson & Ms. S. Shams counsel for the Respondent
I. OVERVIEW
H.K. United Trucks Limited (“HK”) appeals its convictions and sentence following a three-day trial before Justice of the Peace C.A. Noordegraaf, on 30 April 2024.
HK was convicted of:
i. Depositing, causing, permitting or arranging for the deposit of waste, contrary to s. 40 of the Environmental Protection Act (“EPA”); and,
ii. Operating a waste management system, namely transporting waste without approval, contrary to s. 27(1) of the EPA.
The appellant was fined $25,000 on each count, for a total fine of $50,000.
HK advances several grounds of appeal, including that the verdict is unreasonable, that the trial justice erred in law in her treatment of circumstantial evidence and the defence of due diligence, that the reasons were insufficient, that she misapplied the Kienapple principle, and that the sentence is demonstrably unfit.
For the reasons that follow, the appeal is dismissed.
II. STANDARD OF REVIEW
This appeal is brought pursuant to Part VII of the Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”).
Under s. 120(1)(a) of the POA, an appeal against conviction1 lies where:
i. The findings are unreasonable or unsupported by the evidence;
ii. The judgment of the trial court resulted from legal error; or,
iii. The record discloses a miscarriage of justice.
- These powers largely mirror those of the Courts of Appeal under s. 686 of the Criminal Code, and appellate standards in POA appeals are informed by Criminal Code jurisprudence, subject to the POA’s scheme and purpose: R. v. 974649 Ontario Inc., 2001 SCC 81; R. v. Felderhof, 2003 CanLII 37346 (ON CA); London (City) v. Polewsky, 2005 CanLII 38742 (ON CA).
III. FACTUAL BACKGROUND
The facts are largely uncontroverted.
Daniel Mann owned a property at 1815 Sunnidale Road, Springwater (“destination site”). He was looking for fill to raise and rehabilitate a low-lying area of his agricultural property for farming purposes. He obtained a municipal fill permit and sought Table 1 and 2 soil, or “clean fill”, suitable for agricultural use.
Paul Hitchin2 was a self-described “fill broker”. He approached Mr. Mann and told him that he could supply clean fill for his farm property. Mr. Hitchin acted as an intermediary between Mr. Mann and Antonio Gentile, who owned a property in Vaughan (“source site”).
Mr. Gentile’s property was an historic unapproved landfill site containing significant quantities of waste that he was required to move before he could develop the land.
Mr. Gentile retained the appellant to transport material from his property to the destination site at Sunnidale; he ordered at least 33 trucks from HK for that purpose. By way of a telephone call, when ordering the trucks, he told HK that it would be moving “clean fill” (i.e., not waste).
On 30 October and between 5 & 6 November 2020, HK transported substantial volumes of material between the sites, including 90 loads on the latter two dates.
Investigators from the Ministry of Environment, Conservation and Parks (“MECP”) observed waste being loaded at the Gentile site and waste of a similar composition deposited at the Sunnidale property; they were aware that Mr. Mann’s Sunnidale property was not an approved waste disposal site.
In addition to the material from the Gentile site, there was material deposited at Sunnidale from two other sources – one from a site at Hanmer Street in Barrie, and the other from a transporter called SEJJ, which operated out of Toryork Drive in Toronto. The MECP investigators knew the Hanmer site to be an old farm and clean fill site, and the Toryork fill they observed was substantially clean, but for one pop can and one candy bar wrapper visible in an entire truckload of material.
The industrial waste dumped at Sunnidale was described as “dark grey clay-type soil with a lot of waste and debris mixed within it” including: concrete, plywood, lumber, scrap wood, brick, metal and scrap metal, rebar, cast iron pipe, wire, plastic and plastic film, plastic insulation, blue tarpaulin, green hose, fabric, tires, shoes, garbage and other refuse. This was the type of waste observed by MECP Officer McNeice being loaded into trucks at the Gentile site.
Although no one observed HK depositing waste at Sunnidale, it is uncontested that HK did not take any steps to independently verify the nature of the material it had been hired to transport between sites; it relied on Mr. Gentile’s word alone that what it was transporting was “dirt, clean Table 1 and 2 soil”.
IV. ANALYSIS
A. Was the verdict unreasonable?
The appellant submits that the case was wholly circumstantial and that an alternative reasonable inference existed: namely, that HK transported only clean fill from the Gentile site and that the waste found at the Sunnidale property was deposited by others.
Circumstantial evidence has the same legal value as direct evidence when assessing the body of evidence as a whole, and a case grounded in circumstantial evidence is not necessarily a weak case: D. Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015) at 276; R. v. Abdullahi, 2013 ONSC 4873, at para. 28; R. v. Ali, 2017 ONSC 4731, at para. 51.
In assessing the weight of circumstantial evidence, the trier of fact must consider other plausible theories and other reasonable possibilities that are inconsistent with guilt. An inference of guilt drawn from circumstantial evidence should be the only reasonable inference that the evidence permits: R. v. Villaroman, 2016 SCC 33, at paras. 30 & 37.
Reasonable inferences must arise logically from the evidence, assessed in light of human experience and common sense. Speculative conjectures must be rejected, and the Crown need not negative every theory or possibility which might be consistent with the innocence of the accused: Ibid., at para. 37.
The trial justice in this case expressly considered the possibility that other parties (from the Hanmer and Toryork source sites) were responsible for the waste and rejected that theory on the record before her.
The trial justice relied upon the presence of large volumes of waste at the Gentile source site, the observation of waste being loaded into trucks at that site, the transportation by HK of 90 loads from that site during the material time, the presence at the destination site of waste that was “strikingly similar” to that observed at the source site, and evidence excluding other identified sources as contributors.
The appellant’s alternative theory rests largely on the possibility that other companies transported waste, and the fact that only 20-25 loads of waste were observed at the destination site.
While it is true that only some portions of the site were inspected by MECP officers, waste was observed in distinct piles and integrated into fill areas; the Crown was not required to prove that every one of HK’s loads contained waste.
Evidence concerning another trucking company, Allianz, arose through hearsay statements allegedly made by Mr. Gentile to MECP Officer McNeice.3 Even taken at its highest, that evidence did not establish that Allianz transported any material to Sunnidale, nor did it undermine the strong circumstantial case against HK.
The trial justice was entitled to conclude that these propositions did not amount to reasonable alternative inferences inconsistent with guilt. There was no admissible evidence that another carrier delivered any material from the Gentile site to the Sunnidale site. The suggestion amounted to speculation, and it was open to the trial justice to reject it on that basis.
In assessing the available inferences, the trial justice was also entitled to consider the regulated nature of waste transportation activities and the obvious environmental risks associated with moving substantial quantities of material from a site presenting obvious indicators of waste-related environmental risk.4
I am satisfied that the verdict was reasonable.
B. The due diligence defence
- Strict liability offences are established upon proof of the prohibited act, without the need for the prosecution to prove mens rea. Liability may nevertheless be avoided where the accused establishes, on a balance of probabilities, that it exercised due diligence. The defence arises where the accused either: (1) reasonably believed in a mistaken set of facts which, if true, would render the act innocent, or (2) took all reasonable steps to avoid the prohibited event. The concept of reasonableness is central to both branches of the defence and is assessed objectively in light of all the circumstances: R. v. Sault Ste. Marie (City), 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 (S.C.C.), at p. 1326; R. v. Chapin, 1979 CanLII 33 (SCC), [1979] 2 S.C.R. 121 (S.C.C.); R. v. Wholesale Travel Group Inc., 1991 CanLII 39 (SCC), [1991] 3 S.C.R. 154 (S.C.C.).
(1) Standard of proof
The appellant argues that the trial justice failed to expressly identify the balance of probabilities standard applicable to the due diligence defence.
Trial justices are presumed to know the law, and absent some indication to the contrary, the failure to expressly articulate the standard does not establish reversible error: R. v. C.L.Y., 2008 SCC 2, at para. 10; R. v. MacLaughlin, 2025 ONCA 686, at para. 21; R. v. Ramdeo, 2025 ONCA 492, at para. 31; R. v. A.B., 2026 ONCA 361, at para. 34.
Here, at the conclusion of the Crown’s case, the trial justice explained in detail to HK’s representative the various defences available to them, including the defence of due diligence. That she did not say the words “on a balance of probabilities” does not mean that she did not understand or apply the burden to the evidence.
The trial justice’s reasons disclose nothing to suggest that she applied the wrong standard, and this ground of appeal is rejected.
(2) Mistaken belief
The appellant argues that the trial justice failed to properly apply both branches of the due diligence defence. HK argues that it reasonably, but mistakenly, believed it was transporting clean fill, because that is what it was told by Mr. Gentile.
Again, the trial justice expressly described both branches of the due diligence defence to HK’s representatives at the close of the Crown’s case.
The trial justice rejected the appellant’s mistaken belief on the basis that HK took no meaningful steps to verify the nature of the material it transported. That finding was directly responsive to both branches of the due diligence defence, since the reasonableness of the asserted belief depended upon the adequacy of the precautions taken in the circumstances, of which there were none.
In the context of a heavily regulated environmental protection regime, the reasonableness of a transporter’s conduct must be assessed in light of the foreseeable risk associated with moving large volumes of material from a property like Mr. Gentile’s. In those circumstances, it was open to the trial justice to conclude that blind reliance on the customer’s verbal assurances, without any independent verification whatsoever, fell materially below the standard of reasonable care expected of a commercial hauler operating within the waste transportation industry, at a site containing visible industrial waste.
The trial justice was entitled to conclude that HK’s reliance solely on Mr. Gentile’s representation over a phone call was objectively unreasonable in the circumstances and could not ground a defence in mistaken belief. There was no air of reality to a mistaken belief defence on the trial evidence.5
(3) Reasonable care
The appellant relies on alleged industry practice to show that it acted reasonably. The trial justice found the asserted industry practice to be “clearly deficient” and characterized HK’s efforts as amounting to “zero diligence”.
It is well established that compliance with accepted standard practice alone does not establish due diligence where that practice itself falls below the standard of reasonable care: R. v. London Excavators & Trucking Ltd., 1998 CanLII 3479 (ON CA), [1998] O.J. No. 6437 (C.A.), at paras. 12-13.
In circumstances involving the regulated transport of waste, commercial carriers are expected to undertake reasonable verification steps directed toward the prevention of environmental harm and unlawful disposal practices. An approach involving no independent verification whatsoever concerning the nature of the material carried cannot constitute reasonable care on an objective basis.
The findings made by the trial justice were fully available on the evidentiary record before her and disclose no error in principle or misapprehension of the governing legal test. The court’s rejection of the due diligence defence is entitled to appellate deference.
C. Kienapple
The appellant argues that the convictions under ss. 27 and 40 of the EPA arise from the same delict and that one conviction should have been stayed pursuant to the Kienapple principle. The appellant notes that one of the same charges was stayed against the co-accused, Mr. Hitchin, who was proceeded against ex parte in the same prosecution.6
The Kienapple principle applies where there is both a factual and legal nexus between offences such that multiple convictions would amount to multiple punishments for the same wrongdoing. The analysis focuses on whether the offences contain sufficiently distinguishing elements in law: Kienapple v. R., 1974 CanLII 14 (S.C.C.), [1975] 1 S.C.R. 729.
Here, the offences plainly arise from the same general transaction and therefore share a factual nexus. The issue is whether they are legally distinct on the record before the court.
In addressing that question, it is important to recognize that the Crown is not confined to a single theory of liability merely because multiple accused face identically worded charges: “[c]ulpability depends on the evidence and the legal principles applicable to that evidence. The Crown is entitled to rely on any route to liability available on the evidence”: R. v. Kelly, 2017 ONCA 920, at paras. 30-31.
While the informations sworn against HK and Mr. Hitchin substantially mirror the language of the respective statutory provisions, the Crown’s theory of liability against each accused differed materially. Mr. Hitchin was alleged to have acted as a “fill broker” or facilitator between Mr. Gentile and the owner of the Sunnidale property, whereas HK’s liability rested directly on its transportation of waste without approval and its physical deposit of that waste at an unapproved site.
On the findings made by the trial justice, the offences prosecuted against HK were legally distinct. Section 27 prohibited the operation of a waste management system without approval, including the transportation of waste, while s. 40 separately prohibited the deposit of waste at an unapproved site. The s. 27 offence was complete upon HK transporting the waste without approval; the s. 40 offence arose upon the subsequent deposit of that material at Mr. Mann’s property. Each offence therefore required proof of an additional and distinguishing element not required by the other.
Accordingly, the differing disposition involving Mr. Hitchin does not establish error in the treatment of HK. The trial justice correctly concluded that the offences, as prosecuted and proven against HK on this evidentiary record, were legally distinct such that convictions on both counts could properly be entered.
D. Sufficiency of reasons
The appellant submits that the reasons are inadequate.
The trial court is required to demonstrate through its reasons how the result was arrived at. This does not create a requirement to itemize every conceivable issue, argument or thought process; trial courts are not held to some “abstract standard of perfection”: R. v. O’Brien, 2011 SCC 29, at para. 17.
Appellate review of a trial court’s reasons must be done “functionally” and “contextually”: R. v. G.F., 2021 SCC 20, at paras. 68-82.
Here, the trial justice identified the issues, reviewed the relevant evidence, and explained the basis for her conclusions. She made credibility and reliability findings, addressed circumstantial evidence, addressed the competing-source theory, and considered the defence of due diligence.
Her reasons are clear, and the “why” of the verdict is readily apparent.
This ground is without merit.
E. Sentence
The appellant submits that the $50,000 fine is demonstrably unfit, particularly in comparison to the co-accused, Mr. Gentile, who hired HK to transport the material.
HK complains that Mr. Gentile was fined $120,000 for environmental offences in respect of the Vaughan property on 28 June 2022, while the trial justice sentenced him in this case, 15 months later on 23 September 2023, to only $30,000 after he pleaded guilty.
Sentencing is entitled to substantial deference, and appellate intervention is only warranted if the sentence is demonstrably unfit or if the sentencing court made an error of law or an error in principle that had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, at paras. 11, 39-44, and 48.
The trial justice identified multiple aggravating factors, including recklessness, failure to take any preventative steps, and financial motivation. Significant penalties play an important role in promoting compliance with environmental protection legislation and deterring commercial actors from adopting passive or indifferent approaches to the transportation and disposal of waste materials.
The comparison to Mr. Gentile is unpersuasive. Differences include: the mitigation of his guilty plea; HK is a corporation subject to higher penalties (s. 187 of the EPA); and the circumstances of the parties differed materially in terms of their actual involvement in the offences.
The $120,000 fine imposed on Mr. Gentile occurred more than 18 months after he committed the offences for which he was ultimately fined $30,000. Under the Coke Rule,7 a person cannot receive a harsher sentence for a subsequent offence unless they had already been formally convicted of the previous offence before the subsequent offence was committed. That principle was in play here.
The fine imposed on HK is well within the statutory range and reflects the seriousness of the conduct.
The sentence is fit, and I see no basis for appellate intervention.
V. CONCLUSION
The appellant has not demonstrated that the verdicts were unreasonable, that any error of law or miscarriage of justice occurred, or that the sentence is unfit.
The appeal against convictions is dismissed.
The appeal against sentence is dismissed.
Released: 3 July 2026.
Signed: Justice C.A. Brannagan
Footnotes
- Section 122 of the POA addresses orders on appeal against sentence, where “the court shall consider the fitness of the sentence appealed from” and may dismiss the appeal or vary the sentence.
- Mr. Hitchin was a co-accused to HK in this prosecution, but he did not appear and the case proceeded ex parte against him. He was ultimately convicted of deposit of waste, contrary to s. 40 of the EPA. The s. 27(1) charge was stayed pursuant to the principle in Kienapple. I return to this issue later in the judgment: see fn. 6, infra.
- Allianz was identified by Mr. Gentile, to Officer McNeice, as another trucking company allegedly involved in hauling material from the Gentile property on November 6, 2020.
- The purpose of the legislation “is to provide for the protection and conservation of the natural environment”: EPA, s. 3
- R. v. Cinous, 2002 SCC 29, at para. 50.
- See fn. 2, supra.
- See R. v. Skolnick, 1982 CanLII 54 (SCC), [1982] 2 SCR 47, at pp. 54 & 56.