Offences, Prosecution, and Penalties

AuthorJamie Benidickson
Not unexpectedly, prominent environmental offences are generally
associated wit h actual environmental damage: prohibitions have been
established against certain forms of conduct that cause or threaten to
cause damage to the env ironment. The Environment Quality Act of Que-
bec provides an example in declaring that
[n]o one may emit, deposit, is sue or discharge or al low the 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 otherwise impa ir the quality of t he soil, vege-
tation, w ildlife or property.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 impair 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 CQLR c Q-2, s 20.
2 Ontario Water Reso urces Act, RSO 1990, c O.40, s 30(1) [OWRA].
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 othe r deleteri-
ous substance th at results from the deposit of t he deleterious sub-
stance may enter any suc h water.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 further offences. Failure to comply
with regulatory requirements is an offence, as is the fa ilure to obtain
required licences, perm its, or approvals, or failure to comply with any
terms and conditions set out in thes e instruments. Non-compliance
with valid admi nistrative orders may be addressed through prosecu-
tion, and environmental legi slation also typical ly makes it an offence
to interfere with or disregard the regulatory process by failing to sup-
ply required information, or by providing f alse or misleading informa-
tion, or by obstructing enforcement off‌icials or failing to assist them as
required.5 Other environment al reporting obligations that may become
the subject of prosecutorial redress relate 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 Cory J in R v Wholesale Travel Group
3 Fisheries 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 relation t o 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].

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