Whitehorse Daily Star

Judge strikes down YG practice on land use fines

A long-standing practice by the Yukon government related to fines for violations of land use regulations was struck down Tuesday.

By Chuck Tobin on November 8, 2017

A long-standing practice by the Yukon government related to fines for violations of land use regulations was struck down Tuesday.

Territorial court Judge Peter Chisholm ruled the maximum fine for infractions is not the $5,000 the Yukon has been working under for years.

The maximum penalty is $500, six months in jail or both, Chisholm ruled.

He did so after hearing arguments Monday morning by defence lawyers and the Crown prosecutor at the outset of what was scheduled to be a five-day trial.

Whitehorse placer miner Nicolai Goeppel and H. Coyne & Sons of Whitehorse had each pleaded not guilty to three charges under land use regulations and one count under the Forest Resources Act.

Following Chisholm’s ruling, Goeppel and Coyne & Sons changed their pleas to guilty on the three counts under the land use regulations – but maintained a not guilty plea under the Forest Resources Act.

The trial on the remaining one count facing both accused began mid-morning yesterday after the ruling on penalties and continued through the day with the Crown calling four witnesses.

The defence lawyers indicated at the end of yesterday they were not calling any witnesses.

Closing arguments on the charge under the Forest Resources Act began at 10:00 this morning.

Crown prosecutor Megan Seiling declined comment Tuesday on the judge’s ruling.

Communications analyst Catherine Young of the Department of Justice said this morning the department is reviewing the decision but did not have anything to say at this time.

The charges relate to the establishment of a placer mining lease north of Carmacks.

Goeppel and Coyne and Sons were charged with:

• building a 17-kilometre road without any authorization;

• using a bulldozer to move ground and clear land without authorization; and

• causing forest resource harvesting without authorization.

Land use regulations

Defence lawyer Richard Fowler opened up the issue of maximum penalties under the land use regulations first thing Monday morning.

He told the judge his reading of the maximum penalty for each charge under territorial legislation was $500, or six months in jail or both.

The territorial Crown, on the other hand, was maintaining the maximum penalty was $5,000 on each count, he told the judge.

Fowler argued his client, Goeppel, had the right to know exactly what the penalties are if he was convicted of the offences.

Only then could he properly advise Goeppel on how to proceed, he told the judge.

Make informed decision

“The difficulty is that any accused is entitled to make an informed decision,” Fowler argued.

“The legislation is not exactly a mastercraft of legislation, and the accused has to be able to make an informed decision. In my submission, this has to be determined prior to proceeding.”

Defence lawyer Meagan Hannam, representing H. Coyne & Sons Ltd., was in agreement with Fowler. She argued the legislation can ultimately be read only one way.

That one way, she argued, is to find that the maximum fine is $500 and or jail time.

Both defence lawyers and Seiling made their submissions on the question of penalties before noon Monday.

Chisholm adjourned the trial until Tuesday morning to consider the arguments and rule on the question.

The territorial prosecutor told the judge Monday morning the matter over penalties was just raised with her late last week and again that morning.

Seiling acknowledged the defence lawyers might have a point about how there are two competing pieces of legislation.

But she also reminded the court about how the territorial Crown’s office has operated for years under the maximum penalty of $5,000 for land use violations.

It’s been the consistent practice of the territorial court to adopt the maximum $5,000 penalty, Seiling argued.

She said to rule otherwise now would be to frustrate what has been commonly accepted as the standard.

In this matter of interpretation, the courts should give the legislation liberal interpretation to ensure the penalties are proportionate to the offence, Seiling said in her submissions on the issue.

Not a matter of interpretation

Both Fowler and Hannam argued it was not a matter of interpretation, but a matter of reading the applicable legislation – and the applicable legislation says a maximum of $500, jail time or both.

The fact that the Crown is acknowledging competing legislation should be troubling on its own, Fowler told the judge in his submissions.

The maximum penalty on the charge under the Forest Resources Act facing both Geoppel and H. Coyne and Sons is $150,000, or one year in jail, or both.

Eric Fairclough, who was chief of the Little Salmon-Carmacks First Nation when the charges were laid last year, said staff discovered what was described as a lengthy Cat trail that was unauthorized.

He called it a black eye for the mining industry.

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