4.0 OBTAINING DOCUMENTARY EVIDENCE
Documents in support of the evidence you gather through field investigation confirm and reinforce your case. For example, if the suspected polluter is a corporation, you need to obtain a copy of the company’s certified Certificate of Incorporation to verify its legal name and to ensure that the proper organization is being charged (see section 4.9). Or you may need to obtain a land title to prove that the land belongs to the polluter (see section 4.10).
The Freedom of Information acts available at the different levels of government are invaluable tools for obtaining documents, although they are time-consuming (see section 4.1).
In the course of an investigation, you will gather a large number of documents and notes from many sources. You should keep all documents because their relevance may not become clear until late in the investigation, so set up a system to keep track of them. Keep the originals free of any written notes. You can make a small notation on the document itself (preferably on the back, but on the face if necessary,) indicating the date on which you obtained the document, from where or whom you got it, and the total number of pages in the document. If the copy you receive is incomplete, you may want to indicate that as well. Documents you can show to be “in the possession of the accused” can help to dismantle a due diligence defence.
Keep orderly notes of any phone calls you make or receive about the case. Make a habit of sending letters confirming the contents of any conversation relevant to your case (see section 4.11). Keep copies of letters you send and receive since they may play a pivotal role in your case.
It is often useful to make a time line of the events that led to the offence, using documents obtained as supporting evidence. This exercise will also help you to prepare the brief (see section 9.0).
4.1 Freedom of Information (FOI)
Freedom of information (FOI) laws ensure citizens have the right to access government-held records, with some exceptions where non-disclosure or secrecy is allegedly in the public interest. FOI legislation covers the federal government, every provincial government with the exception ofPrince Edward Island, and, in some provinces, municipalities. The federal act is called the Access to Information Act.
In Ontario, provincial ministries and agencies, including the Ministry of the Environment, are subject to the provisions of the Freedom of Information and Protection of Privacy Act (FIPPA). This act is designed to provide the public with the right to access government-held information which the government has a duty to provide while protecting individual privacy. (The actions of the government bodies involved may be subject to review by the Information and Privacy Commissioner.) Information request forms are available from the web sites of the Ministry of Environment or the Information and Privacy Commissioner.
The agency or ministry in receipt of your request must respond within 30 days to advise whether or not access, or partial access, to the record(s) requested will be given. In some circumstances, this 30-day limit may be extended for a “reasonable” period of time. In most cases, you will be sent a letter confirming receipt of your request, which will include the assignment of a file number. The agency will also forward a cost evaluation and an assessment of the number and type of documents found. Creativity in accessing information is advised. For instance, photocopying fees are normally applied to all requests, but it may be possible to borrow and photocopy the information yourself without paying a fee.
Ontario’s Municipal Freedom of Information and Protection of Privacy Act applies to municipalities, local boards, agencies and commissions.
By using the federal Access to Information Act and the provincial and municipal Freedom of Information Acts, you can obtain correspondence (letters, e-mails) or other relevant documents (reports, minutes of meetings, and so on) that may relate to the events or sites you are investigating. Government files might contain a letter from a regulatory agency to a company, requiring it to take certain steps before, during, or after an offence (e.g., to conduct assessments, install silt barriers, take water samples, sample for fish, submit reports, or follow certain guidelines). Failure to follow these instructions may exacerbate the offence or might be the reason an offence has occurred. This type of information may strengthen your case, so include the documents you obtain in your brief (see section 9.0), as proof that the accused could have avoided the offence, that the person or company failed to follow instructions, or that they were aware of the situation for a duration of time within which they failed to take preventative action.
Check with the government body you have sent your information request to as to which act applies, the name and address where you should send your request, and in the case of a federal request, to whom a $5.00 cheque for processing should be made payable.
A few tips
• Call before sending an FOI request; a nice (or uninformed) person may send you documents for free.
• An in-person visit to the appropriate office may allow you to view the documents and assess their usefulness before sending the FOI request. It also allows you to cite specific documents in your request.
• Make your request specific. You may want to send more than one FOI request to the same agency on different aspects of your case. If a request encompasses too much, the costs of obtaining the documents may be very high and you may wind up with a large number of unrelated documents.
• If, during the informational call, it appears you will need to proceed with an FOI request, ask for an estimate of the processing fee. Always ask for a fee waiver; if the costs are below a certain amount, the agency may waive them. In British Columbia, agencies may grant a fee waiver when the FOI request involves health, environmental, or other issues of public interest. If the agency doesn’t grant a waiver, bargain down the cost. Agencies are generally flexible and can reduce their original cost estimates.
• Some environmental legislation may place time limits on the charges you can lay. If the time limit is two years, for example, you may want to limit your first FOI request to documents from that time period to establish whether an offence occurred. If the documents obtained in this first request confirm an offence, you can send a second FOI request for documents prior to that period that may help defeat a defence of due diligence.
• Under the federal FOI legislation, another alternative is to send the FOI request, have the agency compile the results, then arrange to view the documents (before requesting photocopies). This saves money, paper, and trees
• Released documents often have sections blacked out which allegedly contain “confidential” information. Fight to get full copies of such documents through all possible means (e.g., appeals, FOI requests to other agencies, and the media).
You have discovered an environmental crime, and you want to have the perpetrator charged. As with most environmental legislation, every rule or regulation may have an exception or an exemption. Before proceeding with charges, you need to establish whether the alleged offender had permission to carry out the activity. You can establish this by directly asking for the appropriate documents from the relevant regulatory body and, if it won’t release them to you, by sending an FOI request.
During an EBI investigation, an investigator contacted a government official who told her of some relevant files and described the contents of some documents. The investigator confirmed in writing the content of the phone discussion (see section 4.11) and requested the documents. When the agency did not forward the documents, the investigator sent a formal FOI request. The agency’s FOI coordinator sent the request back, explaining that the agency’s files only contained documents produced by another department. When the investigator reissued the request to the appropriate department and included copies of previous correspondence, she was rewarded with some 50 pages of documents.
In another instance, an investigator sent an FOI request to a government agency that had repeatedly claimed not to be involved at a specific site. A few months later, EBI received an assessment of the documents the agency held, citing more than 45,000 pages of relevant documents. The cost of obtaining all of these documents was prohibitive (over $40,000), so EBI filed to appeal the costs. Although EBI never received the documents, due to continuing cost concerns, it uncovered the nature of the documents and made the public aware of their existence.
See Appendix A for an example of an FOI request.
4.2 Remedial Action Plan program (RAP reports)
All the Great Lakes have “areas of concern” identified in the Remedial Action Plan program publications, funded by the federal and provincial governments in the late 1980s and early 1990s. There are 11 areas of concern in Canada, stretching from Thunder Bay on Lake Superior to Cornwall on the St. Lawrence River. Other provinces also have ecosystem initiatives, for example, the St. Lawrence Action Plan in Quebec, the Fraser River Action Plan in British Columbia, the Atlantic Coastal Action Plan in the Maritimes, and the Northern River Basin Study in Alberta.
You can find Remedial Action Plans and associated documents at public and university libraries, on the Internet (for the Great Lakes, see http://www.ec.gc.ca/raps-pas/), and at the Environment Canada offices in Ottawa.
These reports identify a particular area’s environmental problems and often specify pollution point sources and associated contaminants – information you can use to locate pollution and focus your analysis once samples have been taken.
4.3 Certificates of Approval (Cs of A)
Certificates of Approval (Cs of A) would be better named “pollution permits” since they define what contaminants, and in what concentrations, a polluter is allowed to release. In accordance with the Ontario Water Resources Act, every discharge to the environment in Ontario must be covered by a C of A issued by the Ontario Ministry of the Environment. Other provinces also issue Cs of A, or discharge permits under different names. Cs of A for almost all discharges include compliance limits and require the operator to provide samples for monitoring.
You should examine a facility’s C of A to determine if the discharge you have tested is in compliance with its permit. A polluter’s failure to send in monitoring samples may also constitute an offence (subject to a limitation period) since it shows a blatant disregard for the environment and the C of A’s conditions.
To obtain a copy of a C of A and its associated requirements (often found in appendices) in Ontario, contact the Ministry of the Environment district office where the polluter is located, which may refer you to the Approvals Branch. You may have to submit a Freedom of Information request (see section 4.1) to obtain these documents.
As part of their pollution permits, companies may be required to provide monitoring data to a regulatory agency. Monitoring data may also be required if the polluter is subject to the Municipal-Industrial Strategy for Abatement (MISA) (see section 4.5) or similar regulations. Companies sometimes publish monitoring data (mostly favourable) in their annual reports. Government agencies or university studies may also provide you with some information about the types and levels of contaminants contained in the discharges. But you may have to use a Freedom of Information request to obtain the data.
4.5 Municipal-Industrial Strategy for Abatement (MISA)
The Municipal-Industrial Strategy for Abatement (MISA) aims to control contaminants in municipal and industrial discharges in Ontario. It uses an industry-based approach in which final clean water regulations under the Ontario Environmental Protection Act (EPA) were defined in1993 inconsultation with industry for the following sectors: municipal sewage treatment plants, petroleum companies (Regulations 537/93, 524/95), pulp and paper mills (Regulations 760/93, 521/95), organic chemical manufacturers (Regulations 63/95, 522/95, 50/98), inorganic chemical manufacturers (Regulations 64/95, 523/95), metal mining (Regulations 560/94, 169/96), iron and steel manufacturers (Regulation 214/95), electric power generation (Regulations 215/95, 525/95), metal casting companies (Regulations. 562/94, 526/95), and industrial minerals (Regulation 561/94). These restrictions apply only to plants identified in the schedules of the specific regulations.
Search the Ontario Ministry of the Environment MISA pages for more information.
4.6 National Pollutant Release Inventory (NPRI)
The National Pollutant Release Inventory – created under the Canadian Environmental Protection Act (CEPA) in 1992 – makes information available to the Canadian public about pollutants released into the environment.
The NPRI monitors only the substances that appear on its list, which does not include pesticides or other contaminants that are banned or covered by other acts and regulations. The original 1993 list consisted of 178 substances. For 2010, 346 substances or substance groups, grouped into five different parts, were listed on the NPRI.
NPRI is not a voluntary program, but not all companies are required to report. Only those that manufacture, process, or use more than a specified amount of NPRI-listed substances and whose employees worked a total of 20,000 hours or more annually must file a report. (There are some exceptions to these requirements.) Failing to submit a report, or filing a false, misleading, or late report may be considered an offence under CEPA. Even if a facility meets the requirements for reporting for only one of the NPRI-listed substances, it must also report the quantities of the other substances it used, even if that quantity is zero. The NPRI reports only annual total releases, not concentrations of a substance in a discharge. Because the releases may change between the time the company files its report and when the information becomes public, NPRI data provides only limited guidance in an environmental investigation of a specific problem.
NPRI information is available on the Web at http://www.ec.gc.ca/inrp-npri/ or from the offices listed in Appendix H.
4.7 Ontario’s Environmental Registry under the Environmental Bill of Rights (EBR)
The Environmental Registry provides Ontario residents with information on government ministries’ environmentally significant proposals and decisions and allows them to comment on the posted proposals for new acts, regulations, policies, or instruments (permits, Cs of A, and so on). Postings include the name and contact information of a ministry person. The comment period is usually 30 days, but the postings stay on the registry for viewing after that period
expires. The registry may yield documents helpful to your investigation and lead you to other helpful information.
See section 7.1 for more information on the Environmental Bill of Rights.
4.8 Inspection results and non-compliance reports
Environment Canada makes its annual inspection results of facilities under its jurisdiction available to the public. Not all of the facilities under its supervision get inspected every year or even every five years, but you may glean some useful information from these results. The Ontario Ministry of the Environment publishes environmental compliance reports for air emissions, municipal sewage discharges and industrial sewage discharges. The B.C. Ministry of Environment, Lands and Parks, and other ministries also publish non-compliance reports that may help you identify repeat offenders in your region.
4.9 Certificates of Incorporation
To charge a corporation, you must have its exact name, which you can obtain by contacting the provincial Registrar of Companies (RoC) to request a certified copy of the company’s Certificate of Incorporation. Be prepared to give the RoC basic information such as the company’s business name and address. You can then include a copy of the Certificate of Incorporation in your brief (see section 9.0) as a supporting document. A Certificate of Status, also available from the RoC, for the date of the offence establishes that the corporation was active on that date. You can also obtain copies of the corporation’s annual report, which should document the company’s true name and any subsidiaries. You can find annual reports on the company’s website, at libraries, and by requesting them from the company.
The common law provinces (all but Quebec) have two conceptually different systems of recording interests in land: the registry system and the land titles (or Torrens) system. The registry system registers or records interests in land but does not actually declare who owns it. To determine ownership and whether any encumbrances are outstanding against the land’s title, a researcher must examine the records for the previous 40 years. The land titles system declares the current state of title to any registered parcel of land. An investigation of title under the land titles system requires only a review of current registrations.
To discover who owns a parcel of land or to trace its recent ownership history, two options are open to you: You can do it yourself, or you can hire someone to do it for you. Hiring a title searcher to find the information is easier but more expensive.
To find a land title yourself, determine the correct registry office for the parcel, generally the office for that county (in Ontario, you can look in the blue pages, under the Ontario Ministry of Consumer and Commercial Relations), and go to the office with as much information about the property’s location as you can find. Go to the tax assessment rolls, usually kept in the public area of the registry office (or ask the staff), find the legal description of the land on the tax rolls under the name of the owner or, if you don’t know the owner’s name, from the large map that shows lot and concession divisions (and registered plans of subdivisions or towns).
Once you obtain a description of the property, request the “book” in which that property is recorded. There is a small consulting fee for each book. In the book, look up the parcel of land you are interested in. The last “transfer” indicates to whom the parcel was sold most recently. In the registry system, you can look at the ownership history. In the Torrens system, only the last page of the history will be available.
All documents are numbered in the book, so you can request to look at the actual document (deed, mortgage, certificate of pending litigation, registered plan survey, and so on). You will not be allowed to remove documents from the registry office, but copies can be made (usually at a cost).
Many freelance title searchers work out of their own offices, while others take calls at the registry offices. Most land registry offices have two phone numbers: one for the registrar and staff and the other for title searchers. Often the best way to find a title searcher is to phone the local land registry office for the county in which the parcel of land is located (most registry offices are responsible for one county).
Many title searchers will be able to quickly confirm the present owner of a parcel of land for between $20 and $100. Specify the land’s location as precisely as you can (e.g., the address, the lot and concession number, the lot or block number on a registered plan, or a registered plan of subdivision). Provide all ownership information you may have obtained through other means, such as a copy of a deed to the land, names of current or previous owners, and, if available, information on who owns adjacent lands. Title searchers will also be able to tell you what information will best help them locate the parcel you are looking for.
A title searcher can provide you with a copy of the most recent deed to the land, a legal description of it, possibly a survey if one exists, a copy of the relevant part of the assessment map, and the map created for tax assessment purposes, which will help you locate the property in a larger context. A title searcher can also tell you whether any encumbrances are attached to the land.
Neither system of registration records every interest or claim that may affect land ownership. You may need to conduct other searches to determine who is responsible for a parcel of land. For example, you may want to find:
• Provincial taxes, municipal taxes, assessments, school and water rates;
• Unregistered liens and easements created by statute;
• Valid existence of corporate owners during their periods of ownership;
• Any lease or agreement for lease where there is actual occupation under it;
• Any easements acquired by adverse possession (even in respect of lands registered under the land titles system that were acquired prior to the date that the lands were registered under that system);
• Any right of expropriation or any other right vested in the Crown by the authority of a statute of Canada or any province.
These matters can result in claims against a title to the land not registered at the land registry office.
In the course of your investigation, you will talk to many people, including company representatives, government officials, and scientists. After a discussion, always write down the date, the person’s name and affiliation, and a contact number or address. Keep accurate notes of what was said. Do not colour the exchange, but do indicate your impressions, such as whether you felt the person was being honest, or if the person was downright aggressive or even threatening.
E-mail is a wonderful tool. Remember to keep copies of the messages you send and receive since you or your lawyer may use them as evidence.
Questions to ask
Since polluters often use a due diligence defence – arguing that they have taken all reasonable steps possible to prevent committing an offence – it is one of the first lines of questioning to follow. Are the offenders aware of what they are doing? If so, have they done anything to stop or at least mitigate the impact of the offence? Did they spend any money on contamination control or did they just wait, perhaps planning a study, delaying as best they could while keeping face in front of the public and abatement agency? See Enforcing Environmental Law (Edmonton: Environmental Law Centre [Alberta] Society, 1990) by Linda Duncan and The Price of Pollution (Edmonton: Environmental Law Centre [Alberta] Society, 1990) by Elizabeth Swanson and Elaine Hughes for more information on the defences available to accused polluters.
Who to ask
Try to interview the most senior manager in control.
If you intend to record your conversation, remember the following:
• You must obtain permission;
• Make sure your equipment is working properly;
• Use fresh tapes for each interview;
• You will likely need transcripts to help refresh your memory if the case goes to trial and for use by the defence.
Confirming in writing
In addition to keeping notes of your conversations, it is also a good idea to confirm the content of your exchange in writing with the person involved. This gives them the opportunity to respond and/or clarify certain points, as well as provide supporting documents. Section 7.0 includes examples of letters to government investigators.