Offences, Prosecution, and Penalties

• Author: Jamie Benidickson
• Pages: 161-190

161

CHA PTER 8

OFFENCES,

PROSEC U TION,

A ND PENA LTIES

A. AN INTRODUCTION TO ENVIRONMENTAL

OFFENCES

Not unexpectedly, prominent environmental offences are associated

with environmenta l damage: prohibitions have been established against

certain forms of conduct that cause or threaten to cause damage to the

environment. The Environment Quality Act of Quebec provides an ex-

ample in declaring th at

[n]o one may emit, deposit, is sue or discharge or allow t he emission,

deposit, issua nce or discharge into the env ironment . . . of any con-

tamina nt the presence of which in the env ironment . . . is likely to

affect the life, hea lth, safety, welfare or comfort of human bei ngs, or

to cause dam age to or otherwi se impair the quality of the s oil, vegeta-

tion, wi ldlife or proper ty.1

The O ntario 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 i mpair water quality.2

Every person th at discharges or cau ses or permits t he discharge of

any material of a ny kind into or in any waters or on any shore or

1 RSQ c Q-2, s 20.

2 Ontario Water Reso urces Act, RSO 1990, c O.40, s 30(1) [OWRA].

ENVIRONMENTAL L AW

162

bank thereof or into or in a ny place that may impair the qu ality of the

water or any waters is gui lty of an offence.

Similarly, the federal Fisheries Act state s that

no person shall depos it or permit the deposit of a deleterious s ub-

stance of any ty pe in water frequented by f‌ish or in a ny place under

any conditions where the deleter ious substance or any other de leteri-

ous substance th at results from the deposit of t he deleterious sub-

stance may enter any such w ater.3

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

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

its own express limitation in that the legi slation itself indicates t hat 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 authori zed by regulations applicable to

that water or place.”4

In addition to their anti-pollution provisions, envi ronmental stat-

utes ordinarily e stablish a series of furt her offences. Failure to comply

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

required licences, permits, or approvals, or failure to comply with any

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

with valid admi nistrative orders may be addres sed through prosecu-

tion, and environmental legi slation also typically makes it an offence

to interfere with or disregard t he regulatory process by failing to supply

required information, or by providi ng false or misleading in formation,

or by obstructing enforcement off‌icials or fa iling to assist them a s re-

quired.5 Other environmental report ing obligations that may become

the subject of prosecutorial redress rel ate to the occurrence of spills.

Offences in the environmental context are generally described a s

regula tory or public welfare offences. They differ in pri nciple from what

are commonly referred to in Canad a as “true crimes.” The theoretical

distinctions were summarized by Mr Justice Cor y in R v Wholesale

Travel Group Inc:

3 Fisherie s Act, RSC 1985, c F-14, s 36(3) [FA].

4 Ibid, s 36(4). The Jobs, Growth and Long-ter m Prosperity Act, SC 2012, c 19, fur-

ther elaborate s the scope of regulation-ma king authority in relat ion to deleteri-

ous substances.

5 Canadian Environment al Protection Act, 1999, SC 1999, c 33, ss 272–73 [CEPA

1999]; FA, above note 3, s 63, as am by SC 1991, c 1, s 18; Migrator y Birds

Convention Act, 1994, SC 1994, c 22, s 13, as am by SC 2005, c 23, s 9 [MBCA].