A Provincial Court Judge has accepted a stay of proceedings in MiningWatch Canada’s private prosecution regarding the Aug. 2014 Mount Polley Mine tailings impoundment disaster.
“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 Monday, March 27 while a packed court room of MiningWatch Canada supporters listened carefully.
Back on Oct. 18, 2016, MiningWatch Canada’s Canadian co-ordinator Ugo Lapointe laid the private information charging Mount Polley Mining Corporation and the Province of B.C. 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 adjourned until March 27 after Clarkson directed a stay of proceedings.
Outside the court room 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 Mr. Lapointe.
He also said it is 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 Monday, Clarkson told the Tribune 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 told the Tribune the Crown proceeding to stay the charges was its prerogative and “highly unusual.”
He would have liked to have the opportunity to present evidence about the damage of the spill, he said.
“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 a superior court.
In the meantime, he said the Federal Crown needs to take action to enforce its environmental laws.
“If Crown is doing this now because it wants to lay its own charges that’s fine, that would be a positive outcome,” he added.
The Conservation Officer service confirmed Tuesday the three-party investigation into the breach is ongoing.
MiningWatch seeks legal costs
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 also said by entering the stay, the Attorney General demonstrated a “marked and unacceptable departure” of behavior in legal standards.
Clarkson, however, disagreed saying it was not until Dec. 14, 2016 that he received the 876 pages of engineering and scientific reports from Lysenko and 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 behavior, Clarkson argued.
Responding Lysenko said there was no argument there was a lot of evidence for the Attorney General to consider, but even though it reviewed the documents doesn’t change the fact that it still made the decision to stay the proceedings prior to receiving all of the 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 judgement regarding costs will be delivered by e-mail to both parties by April 26, 2017, Judge Bayliff said.
MiningWatch Canada Canadian co-ordinator Ugo Lapointe (centre right) is joined by supporters Monday outside the Williams Lake courthouse. MiningWatch has gathered 25,000 signatures on a petition urging the Trudeau Government to act on the Mount Polley Mine disaster.