6.0 LAWS AND LIMITS ON POLLUTION
There has been much discussion of whether an environmental offence is a crime in the same sense as murder or theft, or whether it is the unavoidable price of doing business, which governments should regulate as a matter of policy, not law. But it is undoubtedly the former. Aside from the fact that prosecutors can apply parts of the Criminal Code – such as criminal negligence, common nuisance, dangerous substances, and offences against animals – to environmental offences, Parliament has passed specific environmental acts under the Criminal Code that make it a crime to commit certain actions that threaten the environment and human health.8 A private prosecution is a criminal case, not a civil lawsuit.
Criminal cases can have three types of offences: strict liability, absolute liability, and traditional criminal offences. Environmental cases often fall under the strict liability category, which means that the accused can use a due diligence defence and argue that he had taken all reasonable care to prevent the offence. The statute usually defines a limitation period: the time within which you may lay a charge following an offence. Most environmental statutes have a six-month limitation period, but some allow for limitation periods of up to two years (the Fisheries Act, for example).
An activity may be an offence under more than one act, for example, a contaminated discharge may be an offence under the federal Fisheries Act and under the Ontario Water Resources Act. It may also be an offence under more than one section of an act.
A criminal proceeding such as a private prosecution does not interfere with civil actions taken at the same time, or at a later date. In fact, a conviction would be admissible as evidence in a civil action for damages or in an injunction related to the offence.9
One of the concerns with any legal proceeding is costs. In civil suits, the defendants’ legal costs can be awarded against a plaintiff who loses. This is not usually the case in criminal cases.
In the Ontario Provincial Offences Act (which would apply to charges laid under the Ontario Environmental Protection Act, the Ontario Water Resources Act, and other provincial environmental legislation), one provision (Section 60, Subsection 2) states that costs may be awarded against the unsuccessful prosecutor, but the provision defines these costs as not including legal costs and as being limited to paying for the appearance in court of the winning parties’ witnesses.
Sections 809, 826, 834, 839, and 840 of the Criminal Code (which would apply to offences committed under federal legislation such as the Fisheries Act) indicate that the fees that may be awarded against the informant upon a summary conviction court’s dismissal of a case do not include legal costs.
Courts have more discretion regarding costs in appeals. Generally, costs are awarded only if the appeal is frivolous or is conducted for an improper purpose or in an improper manner.
Aside from the limited costs that can be awarded against the informant, there is a risk of the accused suing for malicious prosecution. This would be a separate civil action and an unusual event. Nevertheless, it is essential that you obtain good legal advice about costs before initiating legal action.
If you plan to use private prosecution as a means to stop pollution, first familiarize yourself with the environmental legislation that applies in your region. You can also assume that what you are seeing is an offence of some sort, gather evidence, and try to find the appropriate legislation later (with a lawyer’s help), or you can turn your evidence over to a regulatory body (such as the Ontario Ministry of the Environment’s Investigation and Enforcement Branch) and request that it either proceed on your behalf, or assist you in interpreting the appropriate legislation (see section 7.0). Another option in Ontario is to submit a request for investigation to the Environmental Commissioner of Ontario under the Environmental Bill of Rights (EBR) (see section 7.1).
To help better define your plan of action, analyze your results, and form effective action strategies, you need to study federal and provincial quality guidelines, standards, and objectives. You should also find out the limits set in the polluter’s licences. These data are benchmarks against which to judge your sampling results.
Be aware of different types of standards: federal, provincial, contaminated sites, protection of aquatic life, drinking water, irrigation water, recreation (primary and secondary contact), fish consumption, and shellfish harvesting. These are guidelines, not regulations. Accordingly, they may not be legally binding. Some substances are completely banned or highly regulated (see Appendix D).
Discharges that are “deleterious to fish,” are toxic to aquatic life, cause impairment, or affect the consumption of fish by humans are an offence under the Fisheries Act.
Once you have performed a first series of reconnaissance tests and obtained the results, compare the data with those in the tables in Appendix D, and with those in documents obtained through your investigation, to ascertain whether they reveal potential grounds for a prosecution. For example, if the concentrations of one or two of the pollutants contained in the effluent are above the LC50 value for rainbow trout, it may be appropriate to obtain a sample for a rainbow trout toxicity test on a second field trip. If this second sample proves to be toxic, you may have a case, and a third field trip may be in order. On the other hand, if none of the components of the effluent are above guidelines and objectives, you may have no reason to pursue the matter further.
8. Linda F. Duncan, Enforcing Environmental Law: A Guide to Private Prosecution, (Edmonton: Environmental Law Centre [Alberta] Society, 1990), 21.
9. Ibid., 23.