Offences, Prosecution, and Penalties

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 158-186

158

CHA PTER 8

OFFENCES,

PROSECUTION,

AND PENALTIES

A. AN INTRODUCTION TO ENVIRONMENTAL

OFFENCES

Several of the more prominent environmental offences have already

been mentioned, or t heir existence may readily be inferred from the

preceding discussion of regulation and administrative supervision. The

primary focus, not unexpectedly, relates to environmental damage: i n

general, prohibitions are established against certain forms of conduct

that cause or threaten to cause damage to the environment. The En-

vironment Quality Act of Quebec provides an example in declaring that

[n]o one may emit, deposit, is sue or discha rge or allow the emis sion,

deposit, is suance or discha rge into t he envi ronment . . . of any con-

tamina nt the presence of which in t he envi ronment . . . is likely to

affect the life, health, safety, welfare or comfort of hum an beings, or

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

tion, wildli fe 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 i mpair water quality.2

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

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

Offences, Pros ecution, and Penalties 159

Every p erson that d ischarges or causes or permits the discharge of

any material of any ki nd 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 gui lty of an offence.

Similarly, the federal Fisheries Act states th at

no pe rson shall deposit or permit the deposit of a deleterious sub-

stance of a ny type in water frequented by f‌ish or in any pl ace under

any conditions where the deleterious substance or any other deleteri-

ous s ubstance that re sults from the deposit of the deleterious sub-

stance may enter any such w ater.3

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

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

its own express limitation in that the legislation itself indicate s 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 stat-

utes ordinarily establish a series of f urther offences. Failure to comply

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

required licences, p ermits, or approval s, or failure to comply with any

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

with valid administ rative orders may be addressed through prosecu-

tion, and environmental legislation also typically makes it a n offence

to interfere with or disregard the regulatory process by failing to supply

required information, or by providi ng false or misleadi ng information,

or by obstructing enforcement off‌icials or failing to assi st them as re-

quired.5 Ot her env ironmental reporting obligations that may become

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

Offences i n t he environmental context are general ly described as

regula tor y or public welfare offences. They differ in principle f rom what

are commonly referred to in Ca nada a s “true crimes.” The t heoretical

distinctions were summar ized by Mr. Justice Cory in R. v. Wholesale

Travel Group Inc.:

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

4 Ibid., s. 36(4).

5 Canadian Environme ntal Protection Act, 1999, S.C. 1999, c. 33, ss. 272–73 [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, c.22, s. 13, as am. by S.C. 2005, c. 23, s. 9

[MBCA].