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Supreme Court Justice Ron Veale

Firm appeals overturn of acquittal

A Yukon construction company is appealing a Yukon Supreme Court summary appeal decision which overturned an acquittal.

By Gord Fortin on October 23, 2018

A Yukon construction company is appealing a Yukon Supreme Court summary appeal decision which overturned an acquittal.

Shaun Rudolph and Cobalt Construction Inc. have filed their appeal notice to the Yukon Court of Appeal. It contests a decision made by Supreme Court Justice Ron Veale on July 30.

Veale’s decision overturned Judge Karen Ruddy’s Sept. 14, 2017 acquittal of both Rudolph and Cobalt for failing to follow an environmental protection order (EPO) in 2016.

Veale ordered the case sent back to territorial court for sentencing.

Cobalt and Rudolph are applying for a leave from this decision. According to the notice of appeal, the appellants are raising legal issues.

Cobalt’s attorney, Meagan Hannam, argues that Veale’s ruling over the defence of due diligence contained errors in law. The justice determined that a defendant would have to do more than take all reasonable steps to comply with the EPO.

Hannam argued that the appeal judge was wrong to say that her client’s actions show a willingness to violate the EPO.

Cobalt and Rudolph said that the lack of EPO compliance was not voluntary, alleging that it was impossible to physically comply.

Hannam said the justice was wrong in his ruling on the defence of impossibility of compliance. His ruling was that for the defence of impossibility to be applicable, the defendant would have to have no other legal alternative action available.

Her last point was that the justice was wrong to determine that the defence of impossibility was not available to a defendant who could not establish a defence of due diligence.

The appellants are seeking relief. They want Veale’s decision to be set aside and Ruddy’s acquittal to be upheld.

The EPO originated from Cobalt’s Nines Creek Land Treatment Facility near Destruction Bay.

The company received a land treatment facility permit from the Yukon government in 2013 that expired on Dec. 31, 2015. Cobalt let it lapse.

The government wrote to Cobalt, saying the company had to submit a decommissioning plan for this facility two months before it closed.

The EPO was issued effective Feb. 19, 2016 as a result of no plan having been submitted.

Cobalt sent a letter to the government, stating the plan would be completed in the summer and the soil in the area would be tilled and sampled.

The company reasoned that the work could not be done sooner because of winter conditions. This was deemed insufficient by the government.

Cobalt was charged with violating the EPO on July 11, 2016.

Comments (1)

Up 2 Down 2

My Opinion on Oct 26, 2018 at 5:40 am

Judges always know best. Whether they know anything about the job or not. That is power for ya.

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