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Environmental law > Week #5:Environmental prosecution > Flashcards

Week #5:Environmental prosecution Flashcards

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1
Q

Name the 5 main challenges to environmental prosecution?

A 
* Evidence
• Approval of Charges
• Beyond a Reasonable Doubt Standard
• Charter Challenges
• Sentencing Considerations
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2
Q

How do offenses in the environmental context differ from “true crimes”?

A

Offences in the environmental context are generally described as regulatory or public welfare offences. The concept of fault in regulatory offences is based upon a reasonable care standard and, as such, does not imply moral blameworthiness in the same manner as criminal
fault.

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3
Q

What are the 3 classifications of regulatory offenses?

A
  1. Strict liability offences - Crown must establish on a prima facie basis by the prosecution showing the doing of the prohibited act unaccompanied by evidence of the mental state of the accused. Defence - open to the accused to avoid liability by proving that he took all reasonable care.
  2. Mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness.
  3. Absolute liability offences require proof of the actus reus, but it is not then “open to the accused to exculpate himself by showing that he was free of fault.”
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4
Q

Name the 6 main elements of a regulatory regime?

A
  1. General Prohibitions and Duties
  2. Regulations
  3. Licensing
  4. Designate government officials
  5. Administrative powers
  6. Offences and penalties
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5
Q

What are prohibitions in the environmental context? (Part of element #1 of a regulatory regime)

A

Something you cannot do. Examples:

  • Ontario Environmental act: No person shall discharge… [dangerous substances]
  • Federal Fisheries Act: [No deposit of deleterious substance in bodies of water frequented by fishes]
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6
Q

What are duties in the environmental prosecution context and name 2 examples (Part of element #1 of a regulatory regime)

A

Something you are required to do.

  • Duty to report spills/discharges
  • Submit data
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7
Q

What are regulations in the environmental context? (Part of element #2 of a regulatory regime)

A

Detailed and specific requirements regarding prohibitions and duties. Must be clear in order to be enforceable.

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8
Q

Name 3 synonyms of licenses? (Part of element #3 of a regulatory regime)

A
  • Approvals /
    Permits /
    Certifications
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9
Q

Name 7 example of fields a license can apply to (Part of element #3 of a regulatory regime)

A
  • Air
  • Industrial Sewage
  • Hazardous Substances
  • Deleterious Substances (Pulp & Paper, Municipal sewage, Metal Mining)
  • Waste – landfills, transportation
  • Pesticides
  • Ozone depleting refrigerants
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10
Q

What administrative stuff surrounds licenses? (Part of element #3 of a regulatory regime)

A
  • Process to obtain an approval (Who to apply to, what information, fees)
  • Criteria whether to issue (discretion of the official within the statute)
  • Conditions often imposed (Mandatory conditions to be able to keep the permit)
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11
Q

Name 4 examples of government officials? (Part of element #4 of a regulatory regime)

A
  • Directors
  • Provincial Officers
  • Investigators
  • Analysts
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12
Q

Name 5 examples of administrative powers? (Part of element #5 of a regulatory regime)

A
  • Carry out inspections
  • Require information to be provided
  • Issue orders, permits, authorizations etc.
  • Cause work to be done and recover costs
  • Conduct investigations (investigators)
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13
Q

What is the last element (#6) of a regulatory regime again?

A

Offenses and penalties

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14
Q

Environmental prosecution is part of a stepped approach. What are the steps leading up to the laying of charges?

A
  • Education / Outreach
  • Voluntary compliance
  • Mandatory compliance
  • Orders
  • Amendments to approvals / permits
  • Administrative Penalties / Tickets
  • Investigation / charges
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15
Q

Define “inspection”

A

• An inspection is characterized by a visit to determine
whether there is compliance with a given statute. The
basic intent is not to uncover a breach of the Act; the
purpose is rather to protect the public – seek compliance with the legislation.

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16
Q

Define “investigation”

A

• On the other hand, if the inspector enters the
establishment because he has reasonable grounds to
believe that there has been a breach of the Act, this is no longer an inspection but a search (investigationmode), as the intent is then essentially to see if those reasonable grounds are justified and to seize anything which may serve as proof of the offence. “No continuing regulatory purpose”

17
Q

Name 7 examples of evidence

A 
• Observations and information collected by
inspectors
• Samples and testing results
• Eyewitnesses
• Documents and data collected by regulated
company
• Statements by employees
• Expert evidence and reports
• Corporate information
18
Q

What are the 2 main questions to answer when deciding wether or not to approve charges?

A 
1. Is evidence sufficient to justify the
institution of proceedings / is there a
reasonable prospect of conviction?
2. Is the prosecution in the public
interest?
19
Q

There are a ton of factors that can come into play when deciding to approve charges. Name a few (11 are listed in the answer)

A
  • The seriousness of the offence;
  • Any mitigating or aggravating circumstances;
  • The personal circumstances of the accused;
  • The staleness of the alleged offence;
  • The prosecution’s effect on public order, morale, or public confidence
  • in the administration of justice;
  • The availability of alternatives to prosecution;
  • The frequency of the offence in the community;
  • The concern in the community over the offence;
  • The likely sentence; and
  • The attitudes and interests of the victim.
20
Q

Courts apply the Beyond a reasonable doubt standard to environmental prosecutions. Name a few characteristics of that.

A

• Issues to consider:
• Able to prove all elements of the offence
• Capacity of witnesses
• Science v. Law (R v. Cook Aquaculture, R. v. Weyerhaeuser)
• BRD only applies to the prohibited act (actus reus), do
not have to prove intent (unless mens rea offence)
• Defendant must prove on balance of probabilities that
it took all due care or other defence

21
Q

Name 5 possible defenses to environmental offenses

A
  • Due Diligence (All possible/reasonable measures to avoid the problem)
  • De Minimis (So small that it is insignificant (one drop of deleterious material)
  • Mistake of Fact (Dropping oil in a lake when you REALLY THOUGHT it was water)
  • Act of God (One in 1000 years rain causing damage)
  • Officially Induced Error (You based your actions on reasonable but erroneous advice from an official and based your actions, after thinking about the legal aspect of it, on the official’s advice)
22
Q

What does section 8 of the Charter protects from?

A

Warantless/unreasonable search and seizure

23
Q

What does section 11b) of the Charter protects from?

A

Right to be judged in a reasonable time

24
Q

What happened in the R v. Nolet case?

A

Officials search a truck. Valid inspection until the point where he finds money in the truck’s bag. At that point he shouldve got a warrant. Find a false compartment in the truck containing drugs. Last evidence rejected but the money was fine because it was a standard bag that all truckers have and usually carries administrative papers.

25
Q

What are the main points of R. c. Jordan?

A

Regulates 11b) of the charter

  1. There is a presumptive ceiling of 18 months on the length of a criminal case in provincial courts, from the charge to the end of trial.
  2. There is a presumptive ceiling of 30 months on criminal cases in superior courts, or cases tried in provincial courts after a preliminary inquiry.
  3. Delay that is attributable to, or waived by, the defence does not count toward the presumptive ceiling.
  4. Institutional delay that is not the fault of the Crown does count toward the presumptive ceiling.
26
Q

Name types of penalties

A
  • Fines
  • Court orders ( Remediation/Restitution)
  • Probation
  • Prison
  • Creative Sentencing
    * Contribution to environmental fund
    * Post notices of conviction
    * Mandatory education of employees
    * Implement new corporate policies
    * Others
27
Q

What is the difference between specific and general deterrence?

A

General deterrend is to keep people in general from doing an action (prosecuting a hunter without a license to keep others from doing the same)

Specific deterrence is to stop one particular person or corporation from doing an action (a company that doesnt care about oil spills; you prosecute it so it stops)

28
Q

Name sentencing factors?

A
  • Nature of environment affected
  • Extent of damage
  • Deliberateness or recklessness
  • Whether warned of the offence
  • Size of corporation
  • Attempts to comply
  • Profits or savings realized
  • Attitude of accused / cooperate with authorities
  • Remorse
  • Prior convictions
29
Q

What are some factors the judge might factor in while deciding on the sentence? (How much he pays, time in prison, offsetting damages)

A
  • Explaining technical details for proposed court ordered restorative actions (e.g. under Fisheries Act s. 79.2);
  • Does the offence match the fine (putting a dollar figure to the offence) s. 40 Fisheries Act;
  • Remediation – how much should a court consider the cost of remediation in determining a fine? Or should each matter be considered separate.
30
Q

What a some initiatives citizens can take to help protect the environment?

A
  • Political pressure
  • Request for investigation
  • Private prosecution
    • Civil actions
    • Nuisance
    • Negligence
    • Trespass
    • Statutory causes of action e.g. s. 99 EPA
31
Q

What happened at Mount Polley?

A

Huge waste lake operated above capacity breaks, flooding deleterious waste down. No charges yet. Huge pile of evidence. See end of week 5 for more info

Environmental law (12 decks)

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