Intervenor: Vol 25. No 3 & 4 July-December 2000

Environmental Tool Kit: Private Prosecutions

CELA frequently receives inquiries from members of the public regarding opportunities for private prosecutions stemming from environmental contamination occurrences. A private prosecution may be brought by a citizen against a party that is believed to have committed an offence under a provincial or federal statute or regulation. In so doing, the individual that initiates a private prosecution fulfils the government role to enforce applicable environmental legislation. A private prosecution is therefore distinct from a civil suit, in which an individual sues for compensation or an injunction with respect to harm or damages that they, personally, suffer. Individuals that are interested in pursuing a private prosecution should do so with the advice of a lawyer.

What follows is an overview of the opportunities for bringing such private prosecutions under selected provincial and federal laws.

Ontario Legislation

For offences that have been established under Ontario legislation, the Provincial Offences Act permits that any person who, on reasonable and probable grounds, believes that an offence has been committed, can lay an information, thereby commencing proceedings.

Ontario Water Resources Act
Under section 30(1), 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 any waters, is guilty of an offence.

A number of penalties are established for offences that are committed by individuals and they depend on the severity of the offence and whether or not it is a repeat offence. The penalties range from fines of between $20,000 and $200,000 (for each day or part of a day on which the offence occurs or continues), imprisonment of between one to two years, or a combination of fine and imprisonment. Similarly, corporate penalties vary depending on the offence and whether it is a repeat offence. Corporate fines vary from between $100,000 and $2,000,000 per day.

By power of section 111, the court that convicts a person of an offence under the Act, in addition to any other penalty imposed by the court, may increase a fine imposed upon the person by an amount equal to the amount of the monetary benefit acquired by or that accrued to the person as a result of the commission of the offence, despite any maximum fine elsewhere provided. Finally, under section 112(1), the court that convicts a person of an offence under this Act may order the person to take an action to prevent, decrease or eliminate the effects on the environment of the offence and to restore the environment within the period or periods of time specified in the order.

Environmental Protection Act
Under section 6(1) of the Ontario Environmental Protection Act, no person shall discharge into the natural environment any contaminant, and no person responsible for a source of contaminant shall permit the discharge into the natural environment of any contaminant from the source of contaminant, in an amount, concentration or level in excess of that prescribed by the regulations (con-taminant includes any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that may cause an adverse effect). By authority of section 14(1), no person shall discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment that causes or is likely to cause an adverse effect. Under section 186(1), every person who contravenes the Act or the regulations is guilty of an offence.

Individual and corporate penalties under the Environmental Protection Act also vary, depending on the offence and whether it is a repeat offence. They are similar to those described above with respect to the Ontario Water Resources Act.

By authority of section 189 of the Environmental Protection Act, in addition to any other penalty imposed by the court, the court may increase a fine imposed upon the person by an amount equal to the amount of the monetary benefit acquired by or that accrued to the person as a result of the commission of the offence, despite any maximum fine elsewhere provided. Under section 190 (1), the court may order the person to take action to prevent, decrease or eliminate the effects on the natural environment of the offence and to restore the natural environment. Finally, under section 195(1), the limitation period for prosecution under the Act is two years after the later of a) the day on which the offence was committed and b) the day on which evidence of the offence first came to the attention of a person appointed under section 5 (ie, MOE employees).

It is worth noting that on October 10, 2000, the Minister of the Environment introduced Bill 124, the Toughest Environmental Penalties Statute Law Amendment Act, 2000. This bill would amend the Environmental Protection Act and Ontario Water Resources Act to increase the maximum fines for a first conviction for a major offence for an individual from $100,000 to $4 million per day, and for subsequent convictions from $200,000 to $6 million per day. The fines for a corporation would be changed from $1 million to $6 million per day and for subsequent convictions, from $2 million to $10 million per day. The bill also increases the maximum jail term for a person convicted of a major offence from two to five years.

Federal Legislation

Prosecutions of federal offences are governed by the Criminal Code.

Fisheries Act
Section 36(3) of this statute prohibits the unauthorized deposit of deleterious substances in water frequented by fish. Under section 42(6) of the Act, the limitation period for a prosecution under section 36(3) is two years after the occurrence could reasonably be expected to have become known to the federal government or a provincial government.

Section 35(1) of the Fisheries Act states that no person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat. Under section 82(1), proceedings by way of summary conviction for an offence under the Act must be instituted not later than two years after the time when the Minister became aware of the subject matter of the proceedings.

Under the Fishery (General) Regulations, section 62(1), where an information is laid (a prosecution commenced) by a person (ie, someone other than a DFO employee) relating to an offence under the Act, the payment of the proceeds of any penalty imposed arising from a conviction for the offence shall be made (a) one half to the person, and (b) one half to the Minister.

In conclusion, private prosecutions represent an under-used opportunity to ensure adherence to provincial and federal environmental statutes and regulations. This tool is particularly important in an era of significant government restraint.
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Karyn Keenan is an articling student at CELA