Citizens Guide to Environmental Investigation and Private Prosecution


7.0
MAKING A COMPLAINT


7.1 Informing the offender

If you have identified an alleged offender, you may want to notify it of the problem. Be very careful of what you reveal as it is an offence to threaten to prosecute someone for a criminal offence. You may, however, inform someone of the law and indicate that, on the basis of information obtained by you, a violation of the law may have occurred.


7.2 Making a formal complaint

Once you have identified a potential violation and have documented it as fully as you can, the next step is to inform the appropriate government regulatory body. You should contact either your regional office of Environment Canada, the Department of Fisheries and Oceans, or your provincial Ministry of Environment (or like agency). Explain the situation as you know it and follow the agency’s direction. This should be the standard course of action. In this way, you give the applicable regulatory agency the opportunity to respond to your concerns and take action. Agencies are mandated to monitor the environment, to investigate offences, and to take legal action when someone has broken the law. In some instances, government officials are under legal obligation to investigate when they receive a citizen’s request (Canadian Environmental Protection Act, Section 109). If they do not act, it gives you more credibility if you launch a private prosecution. When communicating with a regulatory body, set out what you expect it to do, and give it a realistic time frame in which to respond.

Making a formal complaint does not mean you are off the case. In fact, this is when you need to keep the pressure on. You should keep notes of your interactions with the agency. Keep a journal of meetings and phone conversations and record the names of the people you have talked to. It is also a good idea to confirm in writing what you discussed during phone conversations or meetings. You should also keep copies of letters you send or receive.

For example, you may wish to write to an investigator stating:

Dear [investigator’s name]: 

During our last meeting on [date], I was happy to hear that you were at [the site of pollution source] on [date] and confirmed the presence of leachate at the site. I am anxious to hear about the analysis results of the samples you took on that day.

 or

Dear [investigator’s name]:

 On [date] I came to your office, and although you were unavailable, your assistant, [name], told me you had not yet gone to the site of the suspected offence. I submitted my complaint on [date], over three months ago. I would appreciate it if you would contact me to explain the reasons for this delay and what you intend to do about it.


7.3 Environmental Penalties

In 2005, the Ontario government amended the Environmental Protection Act and the Ontario Water Resources Act with the Environmental Enforcement Statute Law Amendment Act. The act allows Ministry of the Environment directors to impose environmental penalties of up to $100,000 per day for companies that are responsible for unlawful spills and emissions. These penalties do not require a court process. They can be imposed shortly after a spill occurs.


7.4 The Ontario Environmental Bill of Rights (EBR)

Hailed by its creators as a “new era in environmental decision-making,”Ontario’s Environmental Bill of Rights (EBR) at first glance appears to promote public participation in the protection of public resources. But you should be aware of a few things before you take your concerns to the Environmental Commissioner of Ontario (ECO), who is responsible for the implementation of the EBR.

The EBR’s most useful tool is the environmental registry (see section 4.7) because it forces some provincial government agencies and other organizations to give public notice of “environmentally significant decisions.”

In its informational pamphlet on the EBR, the ECO claims that it gives new rights to the people of Ontario even though these rights were already in place in the Criminal Code, provincial environmental legislation, and regulatory agency mandates.

To request an investigation under the EBR, two Ontario residents must fill out an application and each provide affidavits to the ECO. Then they must wait for the ministry’s decision to investigate or not. If it decides not to investigate, does not investigate, or does not report on the results of an investigation within a “reasonable” time, or if its response to the application is “unreasonable,” then and only then can a citizen sue. Note that citizens are then only allowed to bring a civil suit, not a criminal case, against the polluter. As mentioned in section 6.0, in a civil suit, if the complainant loses the case, the court may order him to pay the defendant’s costs. That is not the case in a criminal case.

Using the EBR to stop a polluting activity may not be the best way to proceed. It may delay the process and take away your opportunity to treat pollution as a crime. Accordingly, discuss the options of using the EBR or initiating a private prosecution with legal counsel.

See Ontario’s Environmental Bill of Rights and You for further information on the EBR.

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