Marilyn Burgoon is now faced with the likelihood that she will have to prosecute the Lemon Creek case herself. She says she's game

Impatient judge forges ahead with Lemon Creek case

The federal government says it's still investigating whether to prosecute the case.

In provincial court in Nelson today, a federal government lawyer told Judge Richard Hewson that it has not yet decided whether it will take over the prosecution of Executive Flight Centre Fuel Services Ltd. for polluting Lemon Creek and the Slocan River in the summer of 2013.

The judge was not impressed. “Why not?” he asked federal government prosecutor Todd Gerhart, who appeared in court by audio link.

Gerhart said there was still more investigation to do.

“How soon will you have an answer”?

“I don’t know,” said Gerhart.

Hewson said he had no inclination to wait any longer and set a court date for Monday, May 26 for an arraignment hearing to set a trial date. Gerhart said he would not be there for that hearing.

Executive Flight Centre is the Calgary contractor whose tanker truck overturned in July of 2013 on the way to a forest fire, dumping jet fuel into Lemon Creek.

When it appeared that there would be no Fisheries Act charges laid against the company, Marilyn Burgoon, a Slocan Valley resident, launched a private prosecution against the company and the provincial government. Her action was accepted by the court in December, allowing a summons to be issued.

Burgoon also named the provincial government in the prosecution, she says, because of its inaction when the Fisheries Act was contravened, and because it was in control of access to the staging area the tanker was trying to reach.

In a private prosecution, a private citizen takes on the role of the public prosecutor. Such prosecutions are rare because the private citizen often does not have the financial resources, legal expertise, investigative powers, or institutional backing of a prosecutor’s office.

In court today, Burgoon’s lawyer Lilina Lysenko and lawyers for the provincial government and Executive Flight Centre agreed that the trial could take about two weeks.

Burgoon told the Star that she is disappointed that the federal government has not decided to take over the case but she said there is a potential upside.

“Often when public prosecution does take over they delay it, and it never gets to trial, it just sits there.

“If we do not have the public being taken care of through the system,” Burgoon said, “it will take the citizenry to do it, and I am ready to go ahead and continue. I was confused that it was never processed initially. That is the expectation when someone violates the law.”

Burgoon said that according to the law, the courts “don’t need to show intent. The fish are dead, the river was polluted, and there is an admission that it happened and that it was toxic to the river and citizenry, so it is pretty slam dunk I think.”

She said those facts were all established in a report commissioned by the provincial government and Executive Flight Centre.

“So I can not imagine what they are still investigating. They just need to read the report.”

The federal government’s public prosecution office declined to comment on the reasons for the delay or the need for more investigation.

Lysenko said she is disappointed because, “it is the job of the federal government to prosecute files like this or at least to make a decision about whether or not they are going to.”

She said the factors the government would have to consider would be whether the case presents a reasonable likelihood of success and whether it is in the public interest, “and it is our position that both of these are present in this case.”

Do today’s events mean the federal government is out of the picture and Burgoon is now stuck with prosecuting the case herself?

Lysenko says she doesn’t know. “They could still step in if they want to, but they will not be attending the arraignment hearing on Monday and I am not sure what that means.”