The defendants were sentenced on March 6. 2008 as follows: as against 310 Waste a fine of $500,000; as against 2020700 Ontario Inc. a fine of $400,000; as against 2020780 Ontario Inc. a fine o $400,000; and as against Rail Cycle a fine of $400,000; as against the individuals Robert Sansone and Edmond Hanna were fined in the amount of $5,000 each and six-month terms of imprisonment each, and Guido Titton was fined $3,000 and was incarcerated by way of a three-month conditional sentence.
Judge Gorewich of the Ontario Court of Justice set aside all these convictions and sentences. He ruled that the original trial had been unfairly tainted by the Justice of the Peace’s understandable frustration with the rudeness and misconduct of the defendants’ representative. “A conclusion could be drawn that [his] rudeness and discourtesy affected the decision making of the Justice of the of the Justice of the Peace and the fairness of the trial.” Perhaps as a result, the Justice of the Peace made several errors of law. For example, he did not permit the defendants to use leading questions in cross-examination.He also forced Mr. Sansone to testify as to the reasons for the absence of his representative during the trial.
A more serious challenge for the prosecution will be Judge Gorewich’s findings on due diligence and forseeability. The defendants were charged with causing or permitting the fire, which poured smoke into the natural environment.
Given the fact the site operators exceeded the allowable amount of waste on the site, and further did not comply with certain other directives in a fire plan issued by the Fire Marshall, and thus exceeding the allowable volume of material which caused the spontaneous combustion which was apparently, but not actually, extinguished by the fire department on September 15, was it foreseeable that the unextinguished fire would flare up on October 12 and cause the circumstances which led to the charge before the court?
According to Judge Gorewich, the critical issue is whether the fire that broke out was foreseeable during the charge period. After all, the Acting Fire Chief testified that he did not foresee a flareup of the fire that he had put out in September.
The Crown now has three choices: to seek leave to appeal this decision; to start a new trial, or to abandon the charges. My prediction: they will seek leave to appeal.