The federal government has stayed charges against Executive Flight Centre and the provincial government for polluting Lemon Creek with diesel fuel from an overturned tanker truck in 2013.That means the government has discontinued the charges but has the option to re-open them within a year.
However, if any charges come before the court at all, the more likely scenario is that the Crown may start a new prosecution after the federal environment and fisheries ministries complete their lengthy investigation of the case, federal prosecutor Todd Gerhart told reporters outside BC Supreme Court in Nelson on Monday.
“There will be a charge-approval process when the investigation is complete,” Gerhart said. “It will consider the question of whether there is a reasonable prospect of conviction, which is a question of the sufficiency of the evidence, and whether prosecuting would be in the public interest.”
He said the investigation will be finished “soon” but declined to be more specific. Charges under the Fisheries Act must be laid within five years of an incident. In this case, about 2½ years have already elapsed.
Slocan Valley resident Marilyn Burgoon began the case as a private prosecution in 2014. In any private prosecution, the Crown can intervene and take over, and Burgoon has been wondering for a couple of years why the federal Crown did not do so. But she was also worried if they did take it over, they might simply abandon the case.
Now she says she’s pleased the Crown has stepped in, but wonders why the investigation is taking so long. Speaking to media outside the courthouse, she said “We all know fish died, we know that we were evacuated, we all know that under the Fisheries Act there was a violation. If they don’t proceed it just makes clear to the public that corporations and government are above the law.”
Burgoon pointed out that Executive Flight Centre is suing the provincial government over the Lemon Creek incident, “so there are still things that could happen where people will be held responsible.”
Burgoon’s lawyer, Lilina Lysenko, told the Star she is “cautiously optimistic” the federal government will lay charges after its investigation is complete.
Previous stories in the Nelson Star about legal actions related to the Lemon Creek spill:
Private prosecution launched over Lemon Creek spill October 2, 2014
Lemon Creek spill case can move forward December 21, 2014
Impatient judge forges ahead with Lemon Creek case May 19, 2015
Lemon Creek trial set for April 2016 (with video) June 18, 2015 [Did the government jump in, to prevent or delay the trial?]
Fuel company sues government over Lemon Creek spill July 17, 2015
Feds take over Lemon Creek prosecution January 6, 2016
He said he expects that initial court date to be within the next few weeks. The charges against Executive Flight Centre are for violating Fisheries Act provisions that prohibit polluting a stream.
The decision means that Slocan Valley resident Marilyn Burgoon can drop the private prosecution that she has been pursuing since the fall of 2014, because, she said, it appeared the federal government was not going to prosecute. Now she says she will be spared having to raise tens of thousand of dollars in legal fees.
[Refer also to:
CASE CLOSED! Is Harper tough on crime? Citizen Marilyn Burgoon launches private prosecution over 33,000 litre jet fuel spill into Lemon Creek by Calgary-based company, Neither Harper or BC government took action against the company