Court Information

Ontario Court of Justice

Citation: Zimmer Air Services Inc., 2017 ONCJ 748

Date: November 1, 2017

Court File No.: Municipality of Chatham-Kent 15-000219

Parties

Between:

MINISTRY OF ENVIRONMENT AND CLIMATE CHANGE

— and —

ZIMMER AIR SERVICES INC. and RANDY THOMAS NEFS

Judicial Officer and Counsel

Before: Justice of the Peace H. DeBacker

Heard on: November 4, 2016; December 7, 2016; May 8, 2017 and September 18, 2017

Reasons for Judgment released on: November 1, 2017

Counsel:

• J. Currie — Student-At-Law for the prosecution
• D. Jacobs and A. Mingo — Counsel for the prosecution
• D. Jacklin — Counsel for the defendant, Zimmer Air Services Inc.
• K. Marley — Counsel for the defendant, Randy Thomas Nefs

Judgment

JUSTICE OF THE PEACE H. DEBACKER:

Charge

[1] Zimmer Air Services Inc. and Randy Thomas Nefs stand charged on or about July 23, 2013 at or near the intersection of Highway 40 and St. Andrews Line, Municipality of Chatham-Kent, did commit the offence of discharging or causing or permitting the discharge of a pesticide, namely Headline, into the environment that caused or was likely to cause harm or material discomfort to any person greater than the harm or material discomfort, if any, that would necessarily result from the proper use of the pesticide, contrary to Section 4(c) of the Pesticides Act, R.S.O. 1990, c. P.11, as amended, thereby committing an offence under Section 42(1) of the said Act.

Overview

[2] Identity remained a substantive issue in this trial. Determination and outcome of identity relied almost entirely upon the weight and probative value of Exhibit 13.

[3] To provide fulsome reasons, I will address many of the essential elements, then return to the matter of identity. This was a highly contested trial of every point or issue. Without revisiting each and every objection, based on the evidence heard and summarized herein, the following are this Court's initial findings.

Facts

[4] Both Jim Kosic and James Blake drove to work shortly after 8 a.m. on the 23rd of July, 2013 on Highway 40 near its intersection with St. Andrew's Line, within the Municipality of Chatham-Kent, a rural area with farm fields about, when a helicopter passed by them. Spray that emanated from the helicopter landed on their windshields. Mr. Blake described the spray as having a metallic taste and smell. Mr. Kosic said his car windows were down and he had a scratchy throat for the duration of the morning after the event. Both contacted the Ministry over the incident.

[5] Karen Bradshaw, an officer for the Ministry, attended the location, Highway 40 near its intersection with St. Andrew's Line, the next day to investigate. Ms. Bradshaw took samples of corn vegetation, which samples were sent to the University of Guelph for analysis. There were an abundance of maps entered as exhibits and identified by the aforementioned witnesses. Messrs. Kosic and Blake pointed out where they were when the event occurred. Ms. Bradshaw indicated where she obtained samples. This Court is content to find that the samples Ms. Bradshaw took were as close to the event as one could possibly, humanly expect to achieve. Likewise, this Court is content to find the sample analysis by the University of Guelph was and is, in fact, confirmation of the contents of the spray that emanated from the helicopter that flew over Messrs. Kosic and Blake's vehicles.

[6] Andrew Harris, Scientific Project Supervisor of Laboratory Services Chemistry Section at the University of Guelph, testified regarding the continuity of documentary evidence entered as exhibits. Mr. Harris himself did not test the samples. He supervised those who would have had control over and/or tested the samples. Mr. Harris was responsible for final approval of the analysis and report. It was Mr. Harris' evidence, as well as within the documentary evidence itself, that all four of the samples Ms. Bradshaw took and sent for analysis, tested positive for Pyraclostrobin.

[7] Crystal Lafrance, Regional Pesticides Specialist and Supervisor of Air Pesticides and Environmental Application for the Ministry of Environment and Climate Change, was qualified as an expert in pesticide application and risk assessment associated with pesticide applications. Ms. Lafrance authored an Assessment Report which was entered as Exhibit 16. Through Ms. Lafrance's direct viva voce evidence and through her Assessment Report, Ms. Lafrance confirmed Pyraclostrobin, found on the vegetation samples provided by Ms. Bradshaw to the University of Guelph, is a pesticide. Ms. Lafrance confirmed Pyraclostrobin is the active pesticide ingredient in a product called, 'Headline'. Ms. Lafrance confirmed Headline is acceptable to be applied to a corn field by air.

[8] It was Ms. Lafrance's expert opinion, set out in her Assessment Report, she believed less than the minimum amount of water volume was used in the Headline mixture applied to the corn field. It was apparent from review of her Assessment Report, Exhibit 16, Ms. Lafrance reached this conclusion based upon mathematical calculations. Ms. Lafrance's method and conjugation of numbers are without criticism. She was an extremely knowledgeable, well-versed expert extraordinary in pesticide use. What this Court had concern with, was the accuracy of the source of the numerical information Ms. Lafrance based her opinion upon. It appeared Ms. Lafrance reached her conclusions based primary upon information contained within Exhibit 13, in addition to samples taken by investigator Bradshaw. I will have more to say about Exhibit 13. For now, it should be noted, Page 7 of Exhibit 13 appeared to be the source for the amount of pesticide used in the mixture with water that Ms. Lafrance believed was inadequate. This Court noticed Page 7 of Exhibit 13 had a handwriting different than all the other pages. Further, it stood unknown whether the acreage noted for several fields in Exhibit 13, all noted as 20 acres each, was precise information or an estimate.

[9] Lastly, it should be noted, when Ms. Lafrance assessed the four samples, their results and locations where samples were taken, Ms. Lafrance concluded the pesticide product in off-target areas was a result of a drift event. In other words, Ms. Lafrance concluded, based on her expert analysis of the data, that any non-target application was not the result of the operator failing to turn off application equipment. Rather, Ms. Lafrance concluded any off-target application was the result of a drift event caused by atmospheric wind or wind vortices produced by the aircraft itself. Exhibit 15, Headline Label information, required the pesticide be applied neither during periods of dead calm wind nor, when winds are gusty. Said another way, aerial pesticide application must be applied when winds are just right.

Initial Findings

[10] This Court is prepared to find, based on the evidence at trial:

i) The helicopter that simultaneously passed by the location where Jim Kosic and James Blake drove in their vehicles on Highway 40 near St. Andrew's Line in the Municipality of Chatham-Kent on the 23rd day of July, 2013, emitted Pyraclostrobin, the active pesticide ingredient in Headline.

ii) Jim Kosic and James Blake each experienced material discomfort resulting from contact with Pyraclostrobin. The material discomfort was the scratchy throat experienced by Jim Kosic and the metallic taste and smell experienced by James Blake. Neither Mr. Kosic nor Mr. Blake attended hospital or sought medical attention. Both indicated their discomfort was short-lived. Mr. Kosic's scratchy throat lasted a few hours. Mr. Blake's discomfort was momentary.

Identity and Proper Use

[11] The crown used a back-door method for entering documentary evidence throughout this trial. That method caused much dispute and many objections throughout this difficult trial. The crown commenced the trial by tendering many documents, presumed to be business records, as lettered exhibits, subject to later and further identification and numbering. Crown asked several witnesses questions concerning lettered exhibits and received responses. It is noticed that Exhibits 'B' and 'C' were never formally identified or numbered, even though witnesses were questioned regarding their content and Exhibits 'B' and 'C' continue to form part of the exhibit record.

[12] Exhibit 13 was a 7 page document. All 7 pages work in concert with one another and together make up a package entitled, 'Record of Land and Water Exterminations by an Airborne Machine'. The first 2 pages of Exhibit 13 purport to have been completed by the defendant Randy Nefs. The following 5 pages, include maps and additional material and directions that complete the package. Pages 3 through to page 7 purport to be completed by a third party corporate entity.

[13] If it were not for Exhibit 13, the crown would have no mechanism to link the named defendants to the allegation. Exhibit 13 was the only scintilla of evidence with respect to identity. It should be further noted, expert Crystal Lafrance relied upon the accuracy and contents of Exhibit 13 in formulating her expert opinion regarding water volume within the pesticide mixture. Crown relied empathically on Exhibit 13 and referenced Exhibit 13, over fourteen times within her final submissions and reminded the court more than once that Exhibit 13 was admitted for the truth of its contents.

[14] Sally Mandeno, an office administrator for the defendant Zimmer Air Services at the relevant time, was subpoenaed by the crown as a witness. In chief, Ms. Mandeno appeared to identify the pages in Exhibit 'A', then it was numbered Exhibit 13. Not until cross-examination was the authentication of all of the pages that together made up Exhibit 13 put to question. It was then readily apparent that Ms. Mandeno found it difficult to authenticate or confirm the identity and accuracy of the document's pages. In addition, Ms. Mandeno had a memory lapse regarding the content of the pages. She pointed out the alleged event was over four years ago. When it came to pages 3 through to page 7, Ms. Mandeno could not confirm whether or not pages 3 through to page 7 presented, would have attached to pages 1 and 2 that formed part of the package, 'Record of Land and Water Exterminations by an Airborne Machine'. She had no knowledge of any of the pages beyond page 1 and page 2.

[15] The Court heard from Chris Armstrong, branch manager of Thompsons. Mr. Armstrong confirmed his company hires a firm to perform pesticide application service for his customers. Mr. Armstrong identified pages 3 through to page 6 as having originated from his company. He was not familiar with page 7. Neither Mr. Armstrong nor Ms. Mandeno had any familiarity with page 7. Mr. Armstrong referred to the entirety of the 7 pages of document as a 'package'. Mr. Armstrong had absolutely no personal knowledge regarding the contents of pages 3 through to page 6. He indicated another person, namely Bill Ross from his company, likely would have authored the pages. Mr. Armstrong could not verify nor authenticate whether or not pages 3 to page 6 would have even been attached to and formed part of the 'package' known as, 'Record of Land and Water Exterminations by an Airborne Machine', let alone confirm the accuracy of these pages. Lastly, the Court noticed Laurence Gillespie was identified in writing on page 7. Perhaps it was Laurence Gillespie who authored page 7 in a penmanship different and apart from the other pages of the package. Yet, there was no mention of Laurence Gillespie, who he was, and how he may or may not be connected to the document or package.

[16] It was suggested by the crown, Ms. Mandeno was the source that provided all 7 pages of Exhibit 13 to the Ministry under a statutory duty imposed under Section 73(3) of Ontario Regulation 63/09 of the Pesticides Act. However, whether Ms. Mandeno was the source of all 7 pages was never established in evidence. It was only a suggestion. Ms. Mandeno clearly was uncertain regarding the identity of the pages. I find the connection or chain that would link page 1 and page 2 of Exhibit 13 and the additional pages 3 through to page 7 of Exhibit 13 has not been adequately established. It is not possible for Ms. Mandeno, given her then position with Zimmer, to be a person capable of authenticating another company's records. Mr. Armstrong confirmed he had no direct knowledge or control in this matter. In addition, no one knew anything about page 7 which formed part of the 'Record of Land and Water Exterminations by an Airborne Machine' package. Page 7 had information contained therein that expert Crystal Lafrance used to reach conclusions within her Assessment Report.

Hearsay Analysis

[17] In R. v. Bradshaw, 2017 SCC 35, [2017] S.C.J. No. 35, Justice Karakatsanis, on behalf of himself, Chief Justice McLachlin and Justices Abella, Wagner and Brown, stated:

"Hearsay is an out-of-court statement tendered for the truth of its contents. It is presumptively inadmissible because – in the absence of the opportunity to cross-examine the declarant at the time the statement is made – it is often difficult for the trier of fact to assess its truth. Thus hearsay can threaten the integrity of the trial's truth-seeking process and trial fairness. However, hearsay may exceptionally be admitted into evidence under the principled exception when it meets the criteria of necessity and threshold reliability."

[18] Exhibit 13 was necessary because it was the only evidence that purported to address identity of the defendants. Should the defendant Randy Nefs identity be established, the prosecution's position was the corporate defendant, Zimmer Air Services Inc.'s identity would be established through the doctrine of vicarious liability. R. v. Strand Electric Ltd., [1969] ONCA 1968, 2 C.C.C. 264. Exhibit 13 was also necessary as an important element within the foundation for which expert witness Crystal Lafrance relied upon and based her expert conclusions upon regarding the propriety of use of the pesticide. Improper use of the pesticide was one of the essential elements of the alleged offence.

[19] Even though Exhibit 13 was admitted under the hearsay exception for business records and purportedly obtained pursuant to Section 73(3) of Ontario Regulation 63/09 of the Pesticides Act, Exhibit 13 failed to meet threshold reliability for the reasons aforesaid.

[20] Further in R. v. Bradshaw (June 29), 2017 SCC 35, [2017] S.C.J. No. 35, it was said:

"[56] ….the trial judge must consider the specific hearsay dangers raised by the statement, the corroborative evidence as a whole, and the circumstances of the case, to determine whether the corroborative evidence (if any) can be relied on to establish substantive reliability."

[21] All relevant factors should be considered in a determination of worth or value, including the presence of supporting or contradictory evidence. Here, there was no supportive or corroborative evidence. Not one indicia of evidence with respect to identity or pesticide mixture existed save and except Exhibit 13. As well, attributes or circumstances relied upon by the proponent to overcome the dangers of hearsay evidence factor into the consideration. The crown relied upon the 7 page document, which pages together made up Exhibit 13, as having originated from the corporate defendant itself to bolster reliability. However, where all the document pages originated from was never established in evidence.

[22] With reference to the concerns set out in paragraph 57 in R v. Bradshaw, I find the following:

1. The material aspect of the hearsay document, Exhibit 13, tendered for its truth was to establish identity of the defendants and form a pillar within a foundation for which expert witness Crystal Lafrance relied upon when she formulated her expert report.

2. The specific hearsay danger raised by Exhibit 13 was that it was the one and only sole means of establishing identity. There was no other corroborative evidence to rely upon to substantiate or verify the truth of the contents of Exhibit 13. Exhibit 13 itself was found to be unreliable because it was fraught with many unsolvable authentication problems. Business record exception to hearsay exists because business records are believed to be reliable. Here, the business record, Exhibit 13, lacked reliability. The hearsay danger the business record exception is meant to shield was now, as a result of questionable reliability, alive and real.

3. Based on the circumstances of the hearsay dangers caused and identified, could there be an alternative explanation for the statement or document? The Court heard in evidence, there are four aerial pesticide application firms that operate in the vicinity of the event that gave rise to the charge. Therefore other alternative exterminators do exist.

In addition, this Court has noticed throughout the 7 pages that together made up Exhibit 13, in one location the dates July 23 and July 24, 2013 are noted. This notation called the court to consider whether a pesticide application could have occurred on both dates July 23, 2013 and July 24, 2013 or only one of the two dates. If a pesticide application occurred both dates, when investigator Bradshaw attended in the early afternoon on July 24, 2013 and she took vegetation samples, it is possible her samples disclosed a quantity of substance sprayed earlier that same morning on July 24, 2013 as well as spray from July 23, 2013.

Furthermore, because pages 3 to page 6 in Exhibit 13 appear to be maps and directions that are presumed to confirm the location of pesticide spray and, because the accuracy of these very pages remained unsubstantiated, this problem calls into question the very location sprayed.

Lastly, no one had knowledge of page 7 in Exhibit 13, and there was no evidence provided regarding how page 7 did or did not relate to the package, 'Record of Land and Water Exterminations by an Airborne Machine'. Page 7 was relied upon as a load-bearing pillar and post within the foundation expert Crystal Lafrance used when she formulated her opinion. Removal of the load-bearing pillar and post results in the entirety of the expert's opinion to come toppling down. In other words, expert Lafrance's opinion and conclusion regarding pesticide mixture was not supported in evidence because the document she relied upon to formulate her opinion, has been found to be unreliable. Clearly it is not from anything Ms. Lafrance did or did not do, it is because the source of the information Ms. Lafrance used was unreliable.

Therefore, in response to concern raised in R. v. Bradshaw at paragraph 57 (3), whether there could be alternative explanations, the answer is affirmative. There could be several alternative explanations.

4. Given the circumstances of this case, given there was no corroborative evidence with respect to identity and given Exhibit 13 was the only scintilla of evidence regarding identity which evidence was found to be unreliable as truthful or accurate for the reasons stated; this court finds other alternative explanations were not ruled out by the unreliable document, Exhibit 13. To rely upon Exhibit 13 to establish identity, date, location and improper use of a pesticide beyond a reasonable doubt, given its unreliability, this Court must be able to conclude there could be no other possible conclusion, for which I am unable to draw that conclusion.

[23] In R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57, the Supreme Court of Canada again reminded us hearsay is presumptively inadmissible unless an exception to the hearsay rule applies, primarily because of an inability to test hearsay' reliability. It was held reliability will generally be met when there is no concern regarding the circumstances in which the statement, or in our matter, the document, came to be or its accuracy is sufficiently tested. Here there were concerns regarding the circumstances of how the document came to exist and its level of accuracy was far from sufficient.

[24] Further in R. v. Khelawon, the Supreme Court of Canada confirmed the ultimate determination of value or worth of hearsay, in our matter Exhibit 13, is for the finder of fact or trial justice to determine.

[25] To allow Exhibit 13 to hold value of proof beyond a reasonable doubt of its contents with its inherent authentication and reliability flaws would undermine the truth seeking process and trial fairness. Even if Exhibit 13 could be found to hold a value as high as probable, several points made by Justice Cory in R. v. Lifchus, [1997] 3 S.C.R. 320, regarding probable evidence were:

"The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt is inextricably linked to the presumption of innocence. It is one of the principal safeguards, which seeks to ensure that no innocent person is convicted.

The standard of proof beyond a reasonable doubt is inextricably intertwined with the principle fundamental to all trials, the presumption of innocence.

Reasonable doubt is a doubt based on reason and common sense, which must be logically based upon the evidence or lack of evidence.

It [reasonable doubt] is logically connected to the evidence or absence of evidence.

Proof establishing a probability of guilt is not sufficient to establish guilt beyond a reasonable doubt.

More is required than proof that the accused is probably guilty – a jury which concludes only that the accused is probably guilty must acquit.

Even if you believe the accused is probably or likely guilty, that is not sufficient. In those circumstances, you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt."

Conclusion

[26] The only connection between the charge and the defendants was Exhibit 13 which had many accuracy, authentication and reliability problems. Exhibit 13 was found to be unreliable. Given this, this Court finds identity of the defendants and improper use of a pesticide has not been proven beyond a reasonable doubt. Therefore, this Court's finding is: Not Guilty. Case Dismissed.

Released: November 1, 2017

Signed: Justice of the Peace H. DeBacker