A provincial court judge has accepted a stay of proceedings in MiningWatch Canada’s private prosecution regarding the August 2014 Mount Polley Mine tailings-dam spill in the Cariboo.
“I am satisfied that the criminal code does give the attorney general of Canada the power to stay proceedings in relation to an accused at any time after the information is laid,” Judge Elizabeth Bayliff said this week before a Williams Lake courtroom filled with MiningWatch Canada supporters.
On Oct. 18, 2016, MiningWatch Canada’s Canadian co-ordinator Ugo Lapointe laid the private information charging Mount Polley Mining Corporation and the provincial government for offences under the Fisheries Act.
A process hearing on the prosecution was to begin on Jan. 13, with appearances by MiningWatch’s lawyer Lilina Lysenko and Public Service of Canada prosecutor Alexander Clarkson.
The process hearing was adjourned after Clarkson directed a stay of proceedings.
Outside the courtroom on Jan. 13, Clarkson said the Crown wanted to stay the proceedings because there was no reasonable prospect of conviction against the two parties with the materials presented by the complainant.
Clarkson added it was not in the public’s interest to continue a private prosecution at this time because there is an ongoing comprehensive investigation being conducted by three different agencies — the B.C. Conservation Officer Service, Environment Canada and Fisheries and Oceans Canada.
“It is in the public interest that a more comprehensive investigation be completed before a criminal prosecution,” Clarkson said at the time.
After the stay was accepted on Monday, Clarkson said he wanted to emphasize “even if the evidence that has been provided by the private informant is not sufficient, it does not mean in the future there is not going to be charges forthcoming.”
Lapointe said the Crown proceeding to stay the charges was its prerogative and “highly unusual.”
He said he would have liked the opportunity to present evidence about the damage of the spill.
“It is important to remind British Columbians and Canadians that the Mount Polley Mine spill was the biggest spill in Canada’s history,” Lapointe said. “Almost three years later, there have been no charges, no fines or no sanctions by any level of government.”
Lapointe did not rule out appealing the decision. In the meantime, he said, the federal Crown needs to take action to enforce environmental laws.
“If the Crown is doing this now because it wants to lay its own charges, that’s fine, that would be a positive outcome,” he said.
The Conservation Officer service confirmed the three-party investigation into the breach is ongoing.
Meanwhile, the court was asked by Lysenko to consider awarding legal costs to MiningWatch.
“As you are aware, this case involves significant public interest,” Lysenko said. “It was not brought by MiningWatch or Mr. Lapointe for their own personal benefit or any personal gain. It was brought in the public interest in an attempt to ensure justice was done.”
Lysenko said by entering the stay, the attorney general demonstrated a “marked and unacceptable departure” of behaviour in legal standards.
Clarkson, disagreed, arguing it was not until Dec. 14, 2016, that he received the 876 pages of engineering and scientific reports from Lysenko, followed by an additional 27 pages on Dec. 30.
Taking 17 days to review all the materials to consider the viability of a private prosecution of “national importance,” before notifying Lysenko on Jan. 11 of his intent to direct a stay, was not marked and unacceptable behaviour, Clarkson argued.
Lysenko said there is no argument there was plenty of evidence for the attorney general to consider, but added that even though it reviewed the documents, it doesn’t change the fact it made the decision to stay the proceedings prior to receiving all evidence.
“Private prosecution has been described as a valuable constitutional safeguard against government inertia or partiality,” Lysenko said. “It’s our position that staying the private prosecution process hearing prior to having all of the evidence heard risks gutting this very important tool.”
Clarkson argued against MiningWatch being awarded costs, but told the court the attorney general was not seeking costs.
A written judgment regarding costs will be delivered by e-mail to both parties by April 26.
— Monica Lamb-Yorski, Williams Lake Tribune
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