Court Upholds Order To Remove Septic System
On May 7, 2008, the BC Court of Appeal upheld a Provincial Court Judge’s order finding a property owner guilty on two counts: constructing a septic system without a permit under the former Sewage Disposal Regulation and failing to comply with a Section 63 Health Åct order to remove the system. The property owner was fined $5,000.00 on each count and also ordered to remove the septic system.

The facts in R. v. C.B. Abbott are that Mr. Abbot installed a septic tank and drainage field in August 2002 without obtaining the required permit. The system was installed within 30 metres of Shawnigan Lake and created a possible health hazard. In September 2002, the Environmental Health Officer issued a Section 63 Health Act order requiring Abbott to remove the septic tank and sewage disposal field by the end of the month. Abbott did not comply with the order and did not pursue an appeal of the order.

In December of 2002, Mr. Abbott was charged and, after a trial, was convicted on both counts in September 2004. An appeal to the BC Supreme Court was dismissed in September 2005 and now the BC Court of Appeal has dismissed a further appeal to that Court.

The Court of Appeal specifically found that the Provincial Court Judge had the authority under Section 104.1 of the Health Act, which provides the following additional sentencing authority:

“Additional sentencing authority

104.1(1) If a person is convicted of an offence under this Act, in addition to any punishment imposed, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing one or more of the following prohibitions, directions or requirements:

(b) directing the person to take any action the court considers appropriate to remedy or avoid any harm to the environment that resulted or may result from the commission of the offence;”

In interpreting this provision the Court of Appeal stated:

The clear intention of that section is to remove ‘any menace to public health’.

The grammatical and ordinary meaning of s. 104.1(1) is clear. It is obvious that the legislature intended to confer on the court broad sentencing powers having regard to ‘the nature of the offence and the circumstances surrounding its commission’. The available sanctions are clearly directed at deterrence, denunciation and remediation in the context of legislation that is aimed at the protection of public health and enforcement of the legislative scheme. The sanctions available under s. 104.1 are discretionary. The sentencing judge focused on s. 104.1(1)(b). Her remarks concerning Mr. Abbott’s continuing contravention of the Act, expressed in terms of him continuing to use a system which he installed without applying for a permit, might just as easily have been made in the context of s. 104.1(1)(h), which allows an order to be made to prevent the offender from repeating the offence.

The nature of Mr. Abbott’s offence was the installation of a sewage disposal system without a permit or authorization and the failure to remove the system after being ordered to do so. The circumstances surrounding the commission of the offence included the proximity of the sewage system to a public drinking water source. It is in this context that the sentencing judge had to consider the appropriate penalty.

In my opinion, a fair, large and liberal interpretation of s. 104.1(1)(b) mandates an interpretation beyond the narrow remedial meaning ascribed to it by Mr. Abbott. Under s. 104(1)(b), the power to make a removal order is not confined to circumstances of actual harm. It is also available to ‘avoid any harm to the environment’ that ‘may result from the commission of the offences’ (emphasis added). This broader interpretation achieves one of the central objectives of the Act, namely the protection from health hazards. To interpret the section narrowly would mean that, absent demonstrable harm, failing to abide by the Act would allow one to escape from penal sanctions. That is clearly not the intention of the legislature. Indeed, it is plain that one of the risks of non-compliance is an order for removal. Such risk promotes compliance and deters non-compliance with regulations that are clearly designed to protect public health.

It cannot be forgotten that the circumstances of this offence were very serious – the threat of sewage infiltrating a public drinking water source with potentially very serious damage.

In any event, as already discussed, it is plain that proof of actual harm to the environment is not a condition precedent for the imposition of a removal order. The sentencing judge was obviously persuaded that there was a potential risk of harm. The harm, as she noted, was in the deliberate contravention of the legislative scheme designed to protect the environmental and public health.”.

Guy McDannold

This article was published in Summer 2008 and may be superseded by changes in the law at a later date. It is for general information only. Specific legal advice should be obtained from a qualified lawyer.