The British Columbia Supreme Court affirmed the reasoning of the Provincial Court trial judge that convicted a director, Mission Western Developments Ltd. and its director, Blake Larsen, of offenses under the federal Fisheries Act that occurred during land clearing operations near Wildebank Creek in Mission, British Columbia (R. v. Larsen, 2013 BCPC 92, affirmed 2014 BCSC 2084). In rejecting the appeal by the accused, the Supreme Court held that the Provincial Court judge had applied the correct legal principles for determining the necessary elements to obtain a conviction for impairment of fish habitat under the Fisheries Act. These principles were:
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“Fish habitat” includes not only the waterway in which fish travel, but also the adjacent land and vegetation that contributes to the ability of the fish to hatch, eat, grow, migrate, and ultimately reproduce.
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The Crown is not required to prove that any fish have been harmed by the work, undertaking or activity in order to prove the offense. Creation of a dangerous environment for fish is sufficient proof.
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The Crown must prove, beyond a reasonable doubt, that the accused interfered with the fish habitat in a way that has impaired the value or the usefulness of the habitat for one or more of the purposes described in the definition of “fish habitat.”
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The Crown must prove impairment of the value or usefulness of the fish habitat. That impairment may be caused by the accused’s harmful alteration, disruption, or destruction of the habitat. Absent impairment, there can be no conviction.
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The degree of harmful impairment must be more than trivial or minimal (Larsen, BCPC at para. 40).
The Supreme Court rejected the accused’s argument on appeal that the Crown was not able to establish harm solely on the testimony of experts, but was also required to prove its case with empirical measurements that established that the changes had caused harmful effects to the fish habitat. In rejecting this argument the court stated: “Considering these cases leads me to conclude that proof of the harmful alteration, disruption or destruction of habitat may be founded, as it was in High, on the opinion of expert witnesses if the court is satisfied that such evidence is reliable. Some cases may require empirical data, testing, and so on for conviction, while others will not” (Larsen, BCSC at para. 101).
Considering the role experts may play in potential regulatory charges, it will be prudent for directors to retain experts, should the corporation contemplate alterations to its properties where fish habitat is present.
About the Author
Ronald Davis is an associate professor of law at the Faculty of Law, University of British Columbia. He obtained his Bachelor of Laws degree from the Faculty of Law, University of Toronto in 1990, graduating as that year’s silver medalist. He was called to the Ontario Bar and practiced law in Toronto for 10 years before returning to graduate studies at the University of Toronto. He was awarded a Social Sciences and Humanities Doctoral Fellowship in support of his graduate research and he obtained his Doctor of Juridical Science degree in 2004 at the University of Toronto. While pursuing graduate work at the University of Toronto, he co-authored Director and Officer Liability in Corporate Insolvency, which was published in 2002.
Ronald joined the Faculty of Law at UBC in 2003 and teaches corporate law, law and economics, trust law and pension law. He has published articles on pension law, corporate governance and insolvency law and has presented a number of papers on these topics both nationally and internationally.