R. v. Kirby Offshore Marine Operating LLC, 2019 BCPC 185 (2019-08-12)
Facts: On 13 October 2016 the American flagged pusher tug Nathan E. Stewart ran aground and sank near Bella Bella on the traditional territory of the indigenous Heiltsuk Nation while pushing a barge. The tug was owned by the defendant company, Kirby Offshore Marine Operating LLC. The tug ruptured upon sinking and about 110,000 litres of diesel and 2,200 litres of lubes were released into the ocean. The sinking was caused by the tug operator falling asleep. The defendant pled guilty to three charges, those being an unlawful deposit of diesel fuel contrary to ss. 36(3) and ss. 40(2) of the Fisheries Act, unlawful deposit of diesel fuel contrary to ss. 5.1(1) and s. 13(1)(a) of the Migratory Birds Convention Act, 1994, and unlawful pilotage by proceeding through an area without a licensed pilot or the holder of a pilotage certificate contrary to s. 47 of the Pilotage Act. The Crown and defendant entered a joint submission on sentencing.
Decision: Joint submission on sentencing accepted, fine of $2,905,000.00 imposed.
Held: Sentencing was conducted in accordance with R v. Terroco Industries,  ABCA 141, which outlined five sentencing principles for environmental offences: i. culpability; ii. prior record and past involvement with authorities; iii. acceptance of moral responsibility/remorse; iv. damage/harm, and; v. deterrence. The offences were of a strict liability nature and although the offence was not intentional, the Court found that there was culpable conduct attracting a higher degree of blameworthiness. The offence could have been avoided with the use of technology to alert the operator for situational awareness during navigation, fatigue awareness programs or other preventative systems. The defendant had no past record or involvement with authorities. The guilty pleas reflected the defendant’s acceptance of responsibility and the post offence conduct also established the acceptance of the harm done, such as attempt to mitigate the diesel spill by pumping fuel from the tug to the barge and compensating government agencies for their response to the site as well as compensating the Heiltsuk first nations for their response and assistance in the cleanup. The damage caused by the sinking and resulting fuel and lube spill happened in an environmentally sensitive area on traditional indigenous territory and near Bella Bella, home to some 1,500 people. With regard to deterrence, the Court found that the message to others regarding pollution offences must be clear and unambiguous, as the site of the sinking and spill is part of a waterway used by cruise ships, passenger ferries, pleasure crafts, tugs and other vessels. In this regard the Court found that deterrence must show all others that they have a high duty to maintain a vigilant eye in protecting this sensitive environment and nothing less would suffice. In finding that the joint submission sentence was in line with the sentencing authorities for the three charges pled guilty to, the Court imposed a $2.7 million dollar fine for the Fisheries Act offence, a $200,000.00 fine for the Migratory Birds Convention Act offence, and a fine of $5000.00 for the Pilotage Act offence, with the fines paid to the Environmental Damage Fund which is to be administered for the benefit of the Heiltsuk First nations for the purposes of restoration of the habitat affected by the environmental damage.