Offences, Prosecution, and Penalties

• Author: Jamie Benidickson
• Pages: 167-196

167

CHAPTER 8

OFFENCES,

PROSECUTION,

AND PENALTIES

A. AN INTRODUCTION TO ENVIRONMENTAL

OFFENCES

Not unexpectedly, prominent environmental offences are generally

associated with actual environmental 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 Que-

bec provides an example in declaring that

[n]o one may emit, deposit, is sue 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, w ildlife 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

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

1 CQLR c Q-2, s 20.

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

ENVIRONMENTAL L AW168

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 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 deleter ious substance or any other deleteri-

ous 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 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 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 further 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 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 sup-

ply required information, or by providing false 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 as

regulatory or public welfare offences. They differ in principle from what

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

distinctions were summarized by Cory J in R v Wholesale Travel Group

Inc:

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].