Lemon Creek entering the Slocan River from left. Photo: Lucas Jmieff

Future of Lemon Creek trial uncertain

Judge will make a crucial decision about timing and procedure by Oct. 30

A decision from provincial court Judge Lisa Mrozinski later this month will decide whether or not the Lemon Creek trial will go ahead or get permanently shelved.

During the first week of the trial last week in Nelson court there were no witnesses called and no evidence was heard. Instead, defence lawyer Chris Archer asked the judge for an adjournment of eight months, and he also asked for a stay of proceedings (which would cancel the trial).

Archer, who represents the Calgary company Executive Flight Centre, argued that the Crown took too long to disclose to him its expert reports and other related data, and the delay jeopardized his ability to mount an effective defense.

He and federal Crown prosecutor John Cliffe took the next two days making opposing submissions to the judge on the issue.

Executive Flight Centre provided fuel to the provincial government to fight a forest fire in the area of Lemon Creek in 2013. A tanker-truck load of that fuel spilled into the creek, polluting the stream and causing a local evacuation.

The federal Crown is prosecuting the company, the provincial government, and the fuel truck driver for violating provisions of the Fisheries Act and the Environmental Management Act that forbid polluting a stream.

Archer’s requests for a delay or cancellation of the trial were based partly on a recent decision of the Supreme Court of Canada.

In the 2016 case R vs. Jordan, the court ruled that for provincial court trials, an accused person has a right to a trial within 18 months of being charged, and that if this time limit is exceeded, the charges will be dropped.

Whether this applies in the Lemon Creek case was the subject of defence and prosecution arguments last week. The question is complicated by the fact that there are two different dates the Lemon Creek prosecution could be said to have started.

The case began as a private prosecution initiated by Slocan Valley resident Marilyn Burgoon on September 29, 2014. Private prosecutions can be started by individual citizens but they are rare because they are expensive and complex.

Burgoon said she took this step out of frustration because the federal government did not undertake the prosecution itself, and she spent nearly two years lobbying for the government to take over her prosecution.

Eventually, on July 22, 2016, the federal government did so, and the current trial is the result.

Related: Feds lay charges in Lemon Creek case

Should the 18-month limit start to run from the beginning of Burgoon’s private prosecution or when the federal Crown took it over? The defence argued last week for the former and if the judge agrees it could effectively kill the prosecution’s case. The Crown argued that it started in July, 2016.

Burgoon thinks it’s inappropriate to apply the 18-month rule to a pollution case. She said it would undermine the purpose of the Fisheries Act.

“To properly investigate the long-term impacts of pollution, you need a longer period of time,” she told the Star.

If the judge rules that the 18 months started in 2014, the time limit is long past and the trial cannot proceed. If it began in 2016, then there is still time, although if an adjournment of eight months is granted, this would push it over the 18 months.

Or the judge could decide that the 18-month rule does not apply to a fisheries pollution case at all.

Judge Mrozinski reserved her decision on these questions. She said she will reveal her decision sometime before October 30.

If she decides in favour of the prosecution, the trial will run on the weeks of October 30, November 20 and November 27 at the Nelson courthouse.

This case is entirely separate from a class action lawsuit initiated by Robert Kirk on behalf of 2,500 residents of the Slocan Valley. The defendants in that case are the Province of B.C., Executive Flight Centre, the driver of the truck, and Transwest Helicopters.

The class action suit has achieved the required go-ahead from the Supreme Court of B.C. but there has so far been no hearing date set.

Related: Lemon Creek class action can proceed, court says



bill.metcalfe@nelsonstar.com

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The Slocan River just above Lemon Creek. Lucas Jmieff photo.

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