Report May 25/2002
The Deloro Decision: Are governments subject to lower environmental standards? by Salman Haq
After the longest environmental trial in Canadian history, the Ontario Ministry of the Environment (MOE) was acquitted last summer on pollution charges in connection with the Deloro mine site north of Belleville, Ontario.1 The charges, first laid by a private citizen in 1997, arose under s. 36(3) of the federal Fisheries Act and s. 30(1) of the Ontario Water Resources Act (OWRA).2The charges alleged continuous discharges of various heavy metals (arsenic, cadmium, cobalt, copper, nickel and zinc) from the Deloro industrial site into Moira River and Young’s Creek.
Although charges under the OWRA or Fisheries Actare not rare, the Deloro case was the first time in Ontario history that the government was charged under its own laws. And it would appear that the curious situation of the Crown being both the plaintiff and the defendant raises some disturbing questions about the likelihood of the government being convicted under its own laws. The testimony of several defence witnesses called by the MOE revealed a strong ideological conviction that the government – which had taken over management and control of the mine site from a bankrupt, private company in 1979 – should not be taken to court under its own laws.
Beginning in the 1860s, the Deloro site was used for mining and refining gold, silver, cobalt, arsenic, and other metals in small quantities. In 1961, the smelter closed, and the Deloro property, its arsenic treatment plant and other remaining buildings were transferred to Erickson Construction Company Limited, a subsidiary of M.J. O’Brien Ltd., which was allegedly set up as a “phantom” or “dummy” company to avoid having to clean up the site. Although the provincial government first began making noises about charging the company for environmental pollution in 1970, it was not until 1978 that the government issued a Control Order against Erickson requiring the company to take steps to control the discharges of arsenic. In 1979, Erickson became insolvent and the Ontario government took over the management and control of the site under the Environmental Protection Act.
According to s. 30(1) of the OWRA, “Every person that discharges or causes or permits the discharge of any material of any kind into or in any waters or on any shore or bank thereof or into or in any place that may impair the quality of the water of any waters is guilty of an offence.”3 Section 36(3) of the Fisheries Act states that “… no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water.”4
As Dickson J. noted in R. v. Sault Ste. Marie,5 the offences under both the OWRA and the Fisheries Act are considered “statutory,” public welfare,” “regulatory”, “absolute liability” or “strict responsibility,” are not criminal in any real sense, but are prohibited in the public interest. Prior to Sault Ste. Marie, such offences required either full mens rea or absolute liability. The requirement of mens rea, or mental intent, was considered too strict since it required proof of wrongful intention. On the other hand, absolute liability meant that liability inexorably followed upon mere proof of the actus reus, excluding any possible defence.
The scheme set out by Dickson J. in Sault Ste. Marie allowed the introduction of a “half-way house” between the two extremes: strict liability. Consequently, Dickson J. envisaged three categories of offences, instead of the traditional two: first, those with some degree of mens rea, which must be proved by the prosecution; second, offences in which there is no mental intent requirement, but where it is open to the accused to avoid liability by proving that he took all reasonable care; and third, absolute liability, where it is not open to the accused to exculpate himself by showing that he was free of fault.
Both s. 30(1) of the OWRA and s. 36(3) of the Fisheries Act, because they are public welfare offences, are prima faciein the second category, i.e. strict liability. While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care.
Prior to considering the due diligence defence, the court first dealt with whether the MOE had actually committed the prohibited act. In this vein, the MOE first argued that the statutes in question only applied to any new contamination caused by their work on site. In rejecting this interpretation of the legislation, Dorval J. applied a purposive approach to the interpretation of the statutes, noting that the objectives of the acts are to protect bodies of water for both human and animal uses. To limit the applicability of the acts to new contamination would essentially permit the government who is intervening to ignore the historical problem as long as it did not add to the pollution.
In a related argument, the MOE claimed that since the Deloro mine site had obtained a Certificate of Approval – a licence to discharge contaminants in a body of water – the prosecution must establish beyond reasonably doubt that the defendant has discharged contaminants above the limits as set out in the C of A. In other words, consideration should be given to government-issued allowances for pollution. Dorval J. also rejected this argument, noting that government policies and guidelines, including the C of A., are not legal standards, since they cannot define what discharge will have the ability to impair a given body of water. However, the court ruled that a C of A. may have some bearing in determining whether a defendant has a due diligence defence.
Having dealt with these objections, Dorval J. had little difficulty in finding the required elements of the actus reus of the offence under section 30 of the OWRA; the prosecution established beyond a reasonable doubt that:
- the defendant unlawfully discharged or caused or permitted the discharge;
- of liquid contaminated with metals;
- in the named body of water;
- and that the discharge had the ability to impair the water quality.
However, the court dismissed charges under the Fisheries Act, which required that the prosecution establish that the defendant carried on a work that resulted in harmful alteration, disruption or destruction of fish habitat. Although there was no issue that the sites in question were fish habitats, Dorval J. found no evidence that the MOE’s management of the site (allegedly permitting the continued discharge of contaminants) resulted in the contamination of sediment. In her view, the evidence only established only that the levels of metals in the sediment were the result of historical releases, of migration of sediment, of seepages, and possibly metals from the watercourse “settling” in the sediment.
Finally, the MOE argued that even if it had committed the prohibited acts, it should be found not guilty because it was duly diligent in the remediation of the site. Dorval J. adopted the words of Fitzpatrick J. in R. vs. Courtaulds Fibres Canada in determining what constitutes due diligence:6
“Reasonable care and due diligence do no mean superhuman efforts. They mean a high standard of awareness and decisive prompt and continuing action. To demand more would in my view move a strict liability offence dangerously close to one of absolute liability.”
The Court then listed a number of factors that would be relevant in assessing due diligence,7including the nature and gravity of the adverse effect, what efforts have been made to address the problem, economic considerations, legislative or regulatory compliance, and the existence of alternative solutions. Yet despite a list of fourteen factors, Dorval J. focussed solely on the relevance of the C of A. Strangely, despite finding that the defendant did not always meet the criteria on the C of A, Dorval J. did not find this enough to reject the MOE’s due diligence defence. Furthermore, she sidestepped the issue of funding considerations, noting that she did not find it necessary to make determinations of fact with respect to funding.
The judgement, while comprehensive with respect to the actus reus of the legislation, is seriously lacking in discussion regarding due diligence. The concluding two paragraphs of the decision simply state that, “…the defendant had a detailed and planned approach to the remediation of a complex site. The defendant proceeded with minor but essential components of its plan pending the approval of funding. I have considered all factors relevant to due diligence and conclude that the defendant has indeed established on a balance of probabilities that it was duly diligent…” Environmentalist Janet Fletcher, who laid the private charges against the ministry and ultimately convinced the provincial Attorney General’s office to prosecute on the Environmental Bureau of Investigation’s behalf, noted that “…having a plan is not due diligence. They’ve had a plan for 20 years. This is what I see as a major flaw in the law, that all they have to do is commission a consultation and they’re doing due diligence.”8
One cannot help but wonder whether the fact that the defendant in this case was the MOE, and not a private entity, had any effect on the ultimate decision. The underlying theme behind the MOE’s various arguments was that it should be seen as acting in the public interest after a private company caused the initial pollution. In other words, standards for such environmental “white knights” should be lower. Throughout the trial, defence witnesses put forth the view that the government should not be prosecuted under environmental laws because it had come in for the public interest after a private corporation was largely responsible for creating the mess in the first place. However, this begs the question of the appropriate role for government in these types of situations. If the government truly is acting in the public interest, it should be held to the same standards – if not higher – with regards to environmental pollution in comparison to a private corporation. If the government is indeed the remediator of last resort, than it should fully act in the public interest. It should be irrelevant who created the problem in the first place; if the government is now in charge of the site, it should be held to the same standards. In addition, although it is important to take economic factors into consideration, clean water must be a top priority; if there is serious pollution, it should be cleaned up. One of the primary reasons for taxation is to allow governments to provide basic public goods – and environmental regulation is a prime example.
The practice of government prosecuting itself raises several other key points. Although convictions might ultimately mean the simply transfer of money from one ministry to another, prosecutions represent “…a public denunciation of conduct at odds with environmental stewardship.”9In addition, enforcement of environmental laws against government promotes and enhances the principle that no one is above the law. Finally, prosecution and conviction of a public sector environmental offender is an indication that “not-for-profit” activities are just as likely to commit environmental offences as “for-profit” actors.
A second, but related aspect to the Deloro case is the fact that the government was both defendant and prosecutor in this case. This raises serious questions about independence and incentives. Can the adversarial system truly be effective in such a situation? Can the two parties be seriously considered independent? If the government is serious about being held to the same environmental standards as the private sector, perhaps it would make more sense to set up a more formal, independent office to prosecute such claims.
The decision in Deloro represents a serious blow to environmental protection in Ontario. In essence, it legitimizes lower environmental standards for governments, and lowers the bar on the due diligence defence. As Sue Yanagisawa wrote, the MOE may have been found not guilty of pollution charges, but no one really won.10
_________________________ 1 R. v. R. (represented by the Ministry of the Environment) (27 June 2001), Ottawa (O.C.J.) [hereinafter Deloro]. 2Although the charges were originally laid by a private citizen (with support from Sierra Legal Defence Fund and the Environmental Bureau of Investigation), the case was later taken over by the provincial Ministry of the Attorney General. 3Ontario Water Resources Act, R.S.O. 1990, c. O-40, s. 30(1). 4Fisheries Act, R.S. 1985, c. F-14, s. 36(3). 5R. v. City of Sault Ste. Marie (1978), 40 C.C.C. (2d) 353. 6R. v. Courtaulds Fibres Canada, 1992 Carswell Ont 223 (Ont. Ct. J. (Prov. Div.)).
7R. v. Commander Business Furniture Inc., 1992 Carswell Ont 222 (Ont. Ct. J. (Prov. Div.)). 8D. Baldwin, “Court acquits MOE Deloro pollution” The [Belleville] Intelligencer (28 June 2001).
9P. Cassidy, “Environmental enforcement should focus on governments” Environment Policy & Law, December 1999 at 929.
10S. Yanagisawa, “Government cleared in Deloro case” Kingston Whig-Standard(28 June 2001).