Offences, Prosecution, and Penalties

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 138-162

138

CHAPTER 8

OFFENCES,

PROSECUTION,

AND PENALTIES

1 R.S.Q. c. Q-2, s. 20.

2Ontario Water Resources Act R.S.O. 1990, c. O.40, s. 30(1).

A. AN INTRODUCTION TO

ENVIRONMENTAL OFFENCES

Several of the more common environmental offences have already been

mentioned, or their existence may readily be inferred from the preced-

ing discussion of regulation and administrative supervision. The pri-

mary prohibition, not unexpectedly, relates to environmental damage.

The Environment Quality Act of Quebec provides an example in declar-

ing that

[n]o one may emit, deposit, issue or discharge or allow the emission,

deposit, issuance or discharge into the environment . . . of any con-

taminant the presence of which in the environment . . . is likely to

affect the life, health, safety, welfare or comfort of human beings, or

to cause damage to or otherwise impair the quality of the soil, vege-

tation, wildlife or property.1

The Ontario Water Resources Act makes it an offence to discharge or

cause or permit the discharge of any kind of material in or into any

waters where the discharge may impair water quality.2

Offences, Prosecution, and Penalties 139

3Fisheries Act, R.S.C. 1985, c. F-14, s. 36(3) [FA].

4Ibid., s. 36(4).

5Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33, ss. 272–273

[CEPA, 1999] ; FA, above note 3, s. 63, as am. by S.C. 1991, c. 1, s. 18;

Migratory Birds Convention Act, 1994, S.C. 1994, s. 6(7) [MBCA].

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 or any waters is guilty of an offence.

Similarly, the federal Fisheries Act states that

no person shall deposit or permit the deposit of a deleterious sub-

stance of any type in water frequented by fish or in any place under

any conditions where the deleterious substance or any other delete-

rious substance that results from the deposit of the deleterious sub-

stance may enter any such water.3

As broadly formulated as such prohibitions appear to be, the exis-

tence of exemptions must be noted. The Fisheries Act, in fact, contains

its own express limitation in that the legislation itself indicates that no

one contravenes the prohibition just cited “by depositing or permitting

the deposit in any water or place of waste or pollutant of a type, in a

quantity and under conditions authorized by regulations applicable to

that water or place.”4

In addition to their anti-pollution provisions, environmental

statutes ordinarily establish a series of further offences. Failure to com-

ply with regulatory requirements is an offence, as is the failure to

obtain required licences, permits, or approvals, and to comply with any

terms and conditions set out in these instruments. Non-compliance

with valid administrative orders may be addressed through prosecu-

tion, and environmental legislation also typically makes it an offence to

interfere with or disregard the regulatory process by failing to supply

required information, or by providing false or misleading information,

or by obstructing enforcement officials or failing to assist them as

required.5Other environmental reporting obligations that may become

the subject of prosecutorial redress relate to the occurrence of spills.

Offences in the environmental context are generally described as

regulatory or public welfare offences. They differ in principle from

what are commonly referred to as “true crimes.” The theoretical dis-

tinctions have been summarized by Mr. Justice Cory in R. v. Wholesale

Travel Group Inc.: