Supreme Court

R. v. BHP Diamonds Inc., 2002 NWTSC 82
Date: 20021211
Docket: S-1-CR-2001000053

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- and -


BHP Diamonds Inc.


Transcript of the Oral Reasons for Judgment delivered by The Honourable Justice J.E. Richard, sitting in Yellowknife, in the Northwest Territories, on the 9th day of December, A.D. 2002.


APPEARANCES:

Mr. A. Slatkoff:   Counsel for the Crown

Mr. B. Thompson:  Counsel for the Defendant


(Charges under s. 40(2) (b) x3 and 40(1) (b) Fisheries Act)


THE COURT:   The accused corporation, BHP, operates a diamond mine in the Lac de Gras area of the Northwest Territories.

The charges before the Court relate to alleged breaches of the Fisheries Act; that is, depositing a deleterious substance into waters frequented by fish and, also, harmfully disrupting fish habitat.

The charges arise from activities of BHP during the construction phase of the mining project in 1994 to 1997.

The Court heard testimony from 26 witnesses during this lengthy trial and approximately 250 exhibits were tendered by the prosecution and the defence.

Several substantive issues are raised by the evidence and by the submissions of counsel. For example, the applicability of the Fisheries Act, a ministerial authorization to disrupt fish habitat, proof of the actus reus, and the defence of due diligence.

The Court has reached a decision in this case and, at this time, I intend to deliver that decision in summary form only. Detailed reasons for my decision are being placed on the public court file, and counsel will of course be provided with a copy of those reasons this afternoon.

The Court's decision is as follows:

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1. I find that the Fisheries Act of Canada is applicable to the fish and fish habitat of Kodiak Lake, Little Lake, and Moose Lake in the Northwest Territories.

2. The charges in the Indictment, Section 35(1), harmful alteration of fish habit, and Section 36(3) deposit of deleterious substance into water frequented by fish are strict liability offences. Thus the Crown simply needs to prove the prohibited act, or actus reus, beyond a reasonable doubt and need not prove wrongful intention or negligence. In prosecutions of strict liability offences, it is left open to the accused to avoid liability by proving that he took all reasonable care; that is, exercised due diligence.

3. At this trial the Crown has proven beyond a reasonable doubt the actus reus (that is, that the accused corporation did indeed deposit a deleterious substance, to wit: sediment in waters frequented by fish) and, also, that the accused corporation did indeed carry on a work or undertaking, to wit: the construction and operation of a diversion ditch that resulted in the harmful alteration or disruption of fish habitat.

4. I find that the Section 35(2) authorization issued by the Minister on January 7, 1997, to the accused corporation authorized the harmful alteration or disruption which occurred to fish habitat of Kodiak

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Lake and downstream in the time frame in the Indictment.

5. The accused corporation has proven, on a balance of probabilities, that it exercised due diligence in the design, construction, and operation of the diversion channel, and took all reasonable steps to avoid the excessive deposit of sediment from the channel into Kodiak Lake. I find that the thermal degradation of permafrost in the Grizzly Lowlands and the resulting movement of silt and sediment from that area into the diversion channel is unexplained and was not reasonably foreseeable.

6. There is insufficient evidence in this case to justify a stay of proceedings on a count of abuse of the Court's process.

7. For these reasons and detailed written reasons to be filed shortly, I find the accused corporation not guilty of the charges in the Indictment.

Now, Counsel, that disposes of the charges. Is there anything else on this file?

MR. SLATKOFF:  Crown asks for an order for the disposition of the exhibits upon the expiration of the appeal period.

THE COURT:   Anything further, Mr. Thompson?

MR. THOMPSON:  No, Your Honour.

THE COURT:   The usual order will go regarding disposition of exhibits upon the expiration of the

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appeal period.

We'll close court.


Certified Pursuant to Rule 723 of the Rules of Court

Jane Romanowich,
Court Reporter

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