July 22, 2009

Article in Belleville Intelligencer - April 16

Sinclair appeal remains up in air

The Belleville Intelligencer
Posted by Luke Henry
April 16, 2009

Convicted polluter Jim Sinclair will have to wait a little longer to learn the outcome of his appeal.

Sinclair and his two companies, Demolition and Recycling Inc. and Thermosets Ltd., are appealing a 2008 conviction on charges linked to Sinclair's development of the former Bakelite property.

He received a four-month sentence and $690,000 in fines.

The former factory site on Dundas Street East at Haig Road was contaminated with toxins such as PCBs.

Sinclair and his companies were convicted of failing to comply with numerous orders from provincial authorities and other related charges.

In a three-hour hearing in Belleville Wednesday, Crown attorney Jerry Herlihy and defence lawyer Gabrielle Kramer eir appeal submissions before Justice Rommel Masse.

They debated matters including whether Sinclair -- who at trial had represented himself received a fair trial, was treated fairly under Canadian Charter of Rights and Freedoms and received a proper sentence.

Herlihy said Sinclair "assumed the risk" of representing himself and "efforts were made to ensure he got a fair trial."

He described Sinclair, though, as a man who held no respect for environmental authorities. Most of the charges on which Sinclair was convicted were failures to comply with orders, Herlihy said.

"The answer, really, from Mr. Sinclair was, 'We're not going to,'" he said. "It was clear he wasn't going to listen."

Herlihy also said Sinclair had break the rules even after he was charged.

"These appellants transformed a marshland into a moonscape," said Herlihy. "It remains unrepaired to this date. These offences were 100 per cent deliberate."

He said Sinclair scoffed that the International Joint Commission, a Canada-United States body overseeing shared waters, "sounds like a pot-smoking party."

"It was clear ... that Mr. Sinclair just doesn't get it," said Herlihy, who ended his two-hour submission by saying the concurrent jail sentences he received were "generous" but "fit."

Kramer countered many of Herlihy's statements, saying Sinclair and his one-man businesses had acted responsibly in removing PCBs from the site and attempting to keep them from flowing off the property and into the Bay of Quinte.

"They were clearly taking active and significant steps to prevent the movement of materials off the site," Kramer said.

She said her client's attitude was commended by Justice Geoff Griffin, charging any bad behaviour was because there were "significant abuses" of his charter rights and Sinclair was under great stress. She said investigators had breached Sinclair's rights by sharing information once investigations had been launched.

Kramer said there was no evidence Sinclair's offences stretched on for the 13-month period described by the Crown and that Sinclair and his companies tried to comply with government orders.

"The defendants were doing their best as a one-man company to meet the demands of the (Ministry of Environment)," she said, adding Sinclair "could not have anticipated" the amount of contamination on his property.

Kramer said there were "significant procedural defects" during past court proceedings and asked Masse to either order a new trial or "impose a fit and proper decision."

Masse noted the need for him to review lengthy court transcripts amid a tight schedule, saying he'd be writing his decision "on evenings and weekends."

He pledged to try to render a decision in a timely manner, but no date for the next hearing was set.

"Don't hold your breath," he said wryly.

Sinclair remains free on bail without conditions.

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