Court File and Parties

Court File No.: Parry Sound 06-28-02

Date: May 14th, 2013

Ontario Court of Justice

In the Matter of: An appeal under section 135 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Consbec Inc. Appellant

— And —

Her Majesty the Queen (Ministry of the Environment) Respondent

Before: Justice L. Klein

Reasons for Judgment on Appeal under s. 135 Provincial Offences Act

Decision on Appeal of Sentencing: July 25th, 2008

Released: May 14th, 2013

Counsel:

• Robert Beckett – The appellant self-represented on his own behalf
• Albert M. Engel – for the Municipal Prosecutor

KLEIN, J.:

1. Background

[1] The Appellant conducted a blast at a quarry owned and operated by Weeks Construction Inc. in the Twp. of Carling in the District of Parry Sound on March 18, 2004.

[2] The Appellant entered a plea of guilty to the offence "did commit the offence of permitting a blast so that a contaminant, namely fly rock, was carried beyond the limits of the property on which the blasting was being carried out, to an extent or degree greater than that which would result if every step necessary to control the emission of the contaminant were implemented, contrary to sec. 11(a) of Regulation 346 as amended, made under the Environmental Protection Act, R.S.O. 1990, c. E.19 as amended, thereby committing an offence under sec. 186(1) of the Act" on May 12, 2008.

[3] A conviction was entered and upon a joint submission, a fine of $2,500 plus costs and surcharge was imposed by the court. The Appellant was allowed 90 days to pay the fine.

[4] At that time, the sentencing hearing went on to hear testimony from nine crown witnesses and one witness for the Appellant with respect to other orders being sought by the Respondent Crown in addition to the agreed-upon fines.

[5] In relation to the Appellant, the Respondent sought a restoration order against the Appellant under s. 190 of the Environmental Protection Act. The Crown further sought an order for restitution from the Appellant's co-defendant, Weeks Construction Inc., pursuant to s. 190.1 of the Act. Evidence on those requests was heard over a four day period from May 12th to 15th, 2008 with written "Reasons for Order" released on or about the 25th of July, 2008.

[6] A Notice of Appeal of sentence pursuant to s. 116 of the Provincial Offences Act was filed by the Appellant on August 21, 2008. In it the Appellant enumerated the following grounds for Appeal:

a) The learned Justice of the Peace has not made any findings of fact that permit the Court to make an order pursuant to s. 190.1

b) Any implied findings of fact are contrary to the evidence presented

c) [The learned Justice of the Peace] erred on finding Kipton Daryl Howley (sic) as an expert as to the effects of blasting on structures and on considering his evidence in that regard.

d) [The learned Justice of the Peace] does not give reasons for accepting or rejecting the evidence of either of the witnesses qualified as experts.

e) The calculation of the amount of restitution is based on evidence not presented at the hearing.

f) [The learned Justice of the Peace] when presented with alternate theories by the prosecution, gives no indication of the Court's view as to either the strengths or weakness (sic) of the alternate theories.

g) The reasons given for the judgment are wholly inadequate and make it difficult if not impossible for the Appellant to understand or appeal the judgment.

h) The Court erred in law is (sic) not considering any evidence of the Defendant's expert.

[7] Both the Appellant and the Respondent filed factums and books of authorities which were relied upon at the hearing of the Appeal.

[8] The reasons for order issued by the trial Justice of the Peace reviewed the evidence of most of the witnesses called to give evidence at the sentencing hearing, this included two experts, one for the Prosecution and one for the Defence.

[9] "The Court qualified the Prosecution's expert, Kipton Hawley, as an expert in well construction, well inspection and well water quality. After a voir dire and with objections from Defence Counsel, the Court also qualified Mr. Hawley as an expert in well interferences including interferences from blasting based on his experience in resolving complaints of interference with well water quality or quantity during 57 investigations. This was based on Her Worship's understanding that the law permitted the admission of Mr. Hawley's evidence but that it was the trial Justice of the Peace's responsibility to assess the weight that should be given to that evidence.

[10] The Court after reviewing the evidence of the Prosecution's witnesses made a finding in the absence of any evidence to the contrary including, significantly, the lack of any pre-blast inspection of the Sidon's well, that "the water in the Sidon well prior to the blast in question was acceptable and usable, potable water".

[11] The Court reviewed and summarized the evidence of both the Prosecution's expert, Mr. Hawley and that of the Defence's expert, Ray Jambakhsh who was qualified by the Court as an expert in the monitoring, measurement and reporting on the effect of the blasting vibrations on structures, including rock and wells.

[12] In its review of the evidence of Mr. Hawley, the Court wrote:

"In his opinion, he testified that the blast in question has shaken the local bed rock sufficiently to create two likely problems. First, the vibration was suffi- cient to re-suspend soils in the bedrock fractures supplying the Sidon well and second, the seal that existed between the casing and the bedrock has been broken by the vibration. This would account for the re-occurrence of the cloudy water following a rainfall event and could explain the bacterial contamination of the well."

[13] The court went on to summarize the evidence of Mr. Jambakhsh wherein after explaining "some very technical aspects of drilling, blasting, vibration monitoring and blast diagnostics procedures", he went on to disagree with Mr. Hawley's theory that the blast had shaken the local bedrock sufficiently to create problems. He did not offer opinions regarding the use of plastic pipes in well casings nor in the effects (if any) of the freezing and thawing of clay around the casing.

Mr. Jambakhsh did explain the possibility of air oscillating in the well pipe gathering material which could be suspended in the water, thus according somewhat with Mr. Hawley's theory that the initial red water colour indicated suspended rust and other metals in the water.

[14] The trial Judge was careful to instruct herself in the role and function of expert witnesses and the use that could be made of their evidence both during the hearing itself and her reasons for order.

[15] In quoting Justice Sopinica in R. v. Mohan, [1994] 2 S.C.R. 9, she indicated that she was very much aware of the purpose of and use to be made of expert evidence as follows:

"Expert evidence to be admissible must first be shown to be relevant. Relevancy in this sense includes not merely logical relevance but legal relevancy...expert evidence must also meet a threshold test of reliability and be necessary in the sense that it provides information which is likely to be outside the experience and knowledge of the trier of fact. The need for the evidence must be assessed in light of its potential to distort the fact-finding process. Finally the evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he undertakes to testify".

[16] In her reference to R. v. Marquard, [1993] 85 C.C.C. (3d) 193 (SCC), Her Worship noted that "evidence within the expert's area of expertise is admissible, even when outside the area in which the witness was originally qualified". This prefaced her review of Mr. Hawley's evidence and clearly was in her thoughts as she set out his testimony.

[17] The Court went on to refer to R. v. Molnar, [1990] 55 C.C.C. (3d) 446 (Ont.C.A.) for the proposition that conflicting expert evidence does not require a choice between the experts. Expert evidence is merely one factor in determining whether guilt has been proved. As with any other witness, the trier of fact may accept all, part or none of an expert's evidence.

[18] In this case the court with the expert evidence in mind was at liberty to reach a conclusion as to the proper sentence that should be pronounced. In doing so Her Worship first made a finding "that the changes in the water coming from the Sidon well are as a result of some type of damage caused by the blast occasioned by Consbec Inc. on March 18, 2004. That finding was followed by a restitution order requiring Consbec to pay the sum of $10,000 to Murray Sidon in full payment of his costs to provide a permanent alternate water supply to his residence.

2. Appeals under Provincial Offences Act

[19] In an appeal under s. 116 of the Provincial Offences Act, the burden on the Appellant is to persuade the Appeal Court that the trial Justice's finding of facts were based on palpable and overriding error. The rule applies not only where findings are based on credibility but also where findings are made on the basis of conflicting expert testimony. R. v. Powley (2001), 152 C.C.C. (3d) 97 (Ont. C.A.)

[20] In an appeal against sentence, section 122 of the Act directs the Court to consider the fitness of the sentence appealed from. The test on appeal is not whether the Appeal Court would have imposed a different sentence, or in this case order, but to determine fitness of sentence from a more analytical point of view. The Court should be hesitant to interfere with the discretion of the trial Justice of the Peace at sentencing.

[21] The sentence imposed by a Trial Court is entitled to considerable deference from appellate courts. Absent an error in principle, failure to consider a relevant factor, or an over emphasis of the appropriate factors, a Court of Appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

[22] Section 122 (1) Appeal Against Sentence

Where an Appeal is taken against sentence, the Court shall consider the fitness of the sentence appealed from and may, upon such evidence, if any, as it thinks fit to require or receive, by order.

a) Dismiss the Appeal, or

b) Vary the sentence within the limits prescribed by law for the offence of which the Defendant was convicted.

3. Issues

[23] At the conclusion of the Appeal, the various arguments presented by counsel distilled into two basic issues as follows:

1. Did the Trial Justice of the Peace err in qualifying the Crown's witness, Mr. Hawley, as an expert?

2. Did the Trial Justice of the Peace err in failing to provide sufficient reasons for the decision on sentencing.

1. The Role of Expert

[24] After a voir dire properly conducted during the sentencing hearing the presiding Justice of the Peace qualified Mr. Hawley as an expert in well construction, well inspection, well interferences, including interferences from blasting, and well water quality.

[25] The Court rightly indicated that it would consider the appropriate weight to be given to Mr. Hawley's opinion in light of his having experience in the resolution of at least 57 previous blasting interference complaints involving well water interference.

[26] The Court did so with the clear understanding that such opinion evidence was necessary and desirable to assist in the determination of one of the key issues before the Court, being the possible causes of the degradation of the water in the Sidon well. The learned Justice of the Peace was also aware of the limitations of Mr. Hawley's expertise regarding the scientific aspects of blasting.

[27] In exercising her discretion to quality Mr. Hawley as she did, Her Worship cannot be said to have acted injudiciously or unreasonably even though an appellate court such as this may not necessarily have agreed with her doing so. In the application of the so-called Mohan admissibility criteria the trial court is required to consider questions of fact. For the appellate court to substitute its opinion as to the admissibility of the evidence or to determine what weight should be applied to that evidence should only occur if the exercise of this discretion by the trial court is manifestly unreasonable.

[28] The trial Justice of the Peace after qualifying the Defence expert witness, Mr. Ray Jambakhsh as an expert in the monitoring, measurement and reporting on the effect of blasting vibrations on structures, including rock and wells, went on to summarize his explanation of the technical aspects of blasting. His opinion that the blast was not sufficient to unseat the well casing from the bedrock was considered by the Court in the context of Mr. Jambakhsh's admitted lack of expertise in the construction and functioning of water wells.

[29] In reviewing the totality of the evidence presented at trial, both lay and expert, the trial court determined that the blasting activity at the Weeks quarry on March 18, 2004 was in some way connected to the changes to the water quality in the Sidon well on March 26, 2004. There was sufficient evidence for the presiding Justice of the Peace to make that finding. Such finding was not manifestly unreasonable. The Court did not have to reject the Defence expert evidence to arrive at that conclusion. Implicit in the decision was the learned Justice of the Peace's acceptance of the theory put forth by the Prosecution. The presiding Justice of the Peace had regard to the correct legal considerations, had factual information about most of them and made an order that chose a disposition that was within an acceptable range. The order pronounced by the court, for restitution under s. 190 of the Environmental Protection Act, was fit and appropriate being within the proper range of acceptability in the circumstances.

2. Sufficiency of Reasons

[30] The Supreme Court in its decision R. v. Sheppard, 2002 SCC 26, [2002] S.C.J. No. 30 set out the requirement that the basis for a court's decision must be ascertainable by those affected by that decision. It is a question of accountability not only to the unsuccessful party but to the public. Reasons justify and explain the result. Insufficient reasons can deprive the appellant of a meaningful opportunity to have the correctness of the court's decision reviewed by a court on appeal. That could amount to an error at law.

[31] As important as these reasons may be to make clear the basis on which the decision was arrived at, there may be extant on the record of the proceedings an explanation of the path taken by the court when arriving at its decision. While the reasons could have been more fulsome, the learned Justice of the Peace did take into consideration the evidence introduced at the sentencing hearing as set out in her recitation of the evidence in her reasons. Further, she was at liberty to consider and resolve the conflicts between the theories as advanced by the parties. The Court was very much alive to the debate that informed the hearing. On the evidence before the court, Her Worship could reach the conclusion that she did, namely, that the blast set off by the appellant was in some way connected to the change in the Sidon's well water quality. That conclusion, although perhaps not extensively explained, is supported by the evidence at the hearing. The learned Justice of the Peace arrived at her determination without falling into error of law or principle. It could not be said that the sentence (order) imposed was demonstrably unfit. The determination of the trial court is entitled to deference by the appeal court.

4. Order

[32] The Appellant's Appeal as against sentence is dismissed pursuant to s. 122 (1) of the Provincial Offences Act, R.S.O. 1990 c.P.33.

Released: May 14th, 2013

Signed: "Justice L. Klein"