JD Irving plea deal raises questions of conflict of interest says law professor

CBC NEWS - New Brunswick

JD Irving plea deal raises questions of conflict of interest says law professors

Joint sentence proposal would see $1M paid to Irving controlled non-profit

Connell Smith CBC News Posted: Oct 22, 2018 6:00 AM AT

Irving Pulp and Paper Plant at Reversing Falls, Saint John, NB subject to fines.  Graham Chafe/ASF

Law professors contacted by CBC say conflict of interest and a lack transparency are among the issues in a plea deal proposed in a JD Irving pollution case, with one predicting the case will not be accepted by the court.

The sentence, recommended jointly by the Crown and defence lawyers in the case, would see a $1.1 million fine paid to Collaboration of Atlantic Salmon Tomorrow or CAST, a conservation non-profit chaired by Jim Irving, JDI's co-CEO.

CAST is a company chaired by Irving, with Glenn Cooke of Cooke Aquaculture, and Saint John businessman Brian Moore as fellow directors. Its executive director is Andrew Willett, an Irving Woodlands manager.

Lawyers for Irving Pulp and Paper have entered guilty pleas to three charges for discharging toxins into the St. John River.

If accepted by Judge David Walker, the sentence deal would also see Irving Pulp and Paper construct a treatment facility at its Reversing Falls pulp mill and pay $2.4 million to the federal Environmental Damages Fund.

'Backroom deals'

CAST is behind a controversial project to boost the wild Atlantic salmon population in the Miramichi River and is mired in a public dispute with the Department of Fisheries and Oceans, which refuses to give a green light to the stocking project.

University of Calgary associate professor Shaun Fluker, who specializes in corporate, securities and environmental law, says the Irving plea deal proposal is one of a growing number of cases involving creative sentencing that are problematic because there's little evidence to show how defence lawyers and the Crown came up with the joint recommendation.

JD Irving Ltd. co-CEO Jim Irving is also Chair of Collaboration for Atlantic Salmon Tomorrow (CAST), a conservation group devoted to assisting the Miramichi River salmon population. (Youtube)"It often seems to be like backroom deals between defence council or the accused and the Crown," said Fluker.

"In addition to the lack of transparency between how this is arranged, the conflict of interest, and the fact that in this case it looks like the accused has a connection to the beneficiary is certainly more problematic than most of them."

Fluker says there's also no way to account for how CAST uses the money and whether it would support salmon conservation projects that are averse to Irving interests.

"These creative sentences in a way are replacing the traditional fine so you are really undermining the deterrence effect of the punitive aspect of the sentence if the beneficiary and the accused have a close relationship."

Fluker says, further, that in cases where defence and Crown make a joint recommendation, it is unlikely there can be an appeal because environmentalists and other third-party groups have no standing in the case.

Ineffective penalty

Duff Conacher, an adjunct professor of politics and law at the University of Ottawa goes further.

He says he has never heard of a case where the penalty money is going to a group directly connected to the company being fined.

He predicts Walker will not accept the proposed plea deal proposal when the case returns to court Nov. 5.

"I think judges are very sensitive to conflicts of interest. And especially in issues of law enforcement, and would see this as an ineffective penalty," said Conacher, who is also co-founder and remains a director of the group, Democracy Now.

"The fact that an Irving is the chair of the organization that is receiving the money from the Irving company is a clear conflict of interest.

Whether CAST would do the right thing, anything that would hurt [JD Irving Ltd.] with that money is a question anyone is justified in asking."

Appearance matters

John Bird, adjunct professor at UNB's faculty of law, says it is not unusual for  judges to ask a defendant where he wants a community donation to be directed. But the Irving Pulp and Paper case is different.

"I think appearance matters. And it matters greatly in a situation when environmental damage has occurred and that affects the public in general."

Bird says there could be no perception of conflict of interest if the entire fine was directed to the federal Environmental Damages Fund, a third party group.

Irving Pulp and Paper was originally charged in November 2016 with 15 offences following releases of black liquor, white liquor and other toxins in the St. John River over a two year period ending in August 2016.

Crown prosecutor, Paul Adams did not respond to requests for comment.

A spokesperson for JD Irving Ltd. says the company is considering an interview request.