Taking Matters Into Their Own Hands: The Role of Citizens
in Canadian Pollution Control Enforcement
Kernaghan Webb*
The role of private prosecutions in Canadian
pollution control enforcement is emerging as
an important alternative to government-
initiated actions. However, citizen-initiated
prosecutions are typically viewed as indicia of
either government ineptitude or citizen med-
dling. Through case studies of three Canadian
pollution control prosecutions, R. ex reL Howe
v. Cyanamid Inc., R. v. Crown Zellerbach
Properties Ltd., and R. v. Suncor Inc., the
author shows that reality lies somewhere
between these two extremes. Using an histori-
cal framework, the author places the role of the
citizen-prosecutor within the broader context
of participatory democracy, showing the need
for mechanisms for citizen input to ensure the
proper functioning of government. The author
outlines a structured approach to citizen
enforcement and, exploring the legal aspects
of these issues, suggests ways to facilitate pri-
vate prosecutions and improve government
pollution control efforts.
Le r6le des poursuites privies en tant que
moyen de faire respecter les lois canadiennes
sur le contr6le de ]a pollution apparait comme
une alternative importante A l’action gouvern-
mentale en ]a mati~re. Cependant, les pour-
suites intent~es par le citoyen sont trop sou-
vent perques comme un signe d’incertitude
gouvemmentale ou d’ingrrance. L’auteur exa-
mine trois affaires mettant en cause de telles
poursuites –
R. ex rel. Howe c. Cyanamid
Inc., R. c. Crown Zellerbach Properties Ltd. et
R. c. Suncor Inc. –
se
situe entre ces deux extremes. En utilisant une
grille d’analyse historique l’auteur situe le r6le
du citoyen-accusateur dans le cadre plus glo-
bal d’une drmocratie fondde sur la participa-
tion, et demontre l’importance de l’apport des
citoyens, qui peut seul assurer la repr6sentati-
vit6 des dirigeants. L’auteur esquisse une
approche structur6e afin d’examiner le pro-
blame du citoyen faisant respecter ]a loi. 11
explore les dimensions juridiques et prupose
des moyens de faciliter les poursuites privdes
ainsi que de bonifier les efforts gouvernemen-
taux en mati~re de contrfle de la pollution.
et affirme que la vdrit
* Consultant, Administrative Law Project, Law Reform Commission of Canada. Lecturer, Fac-
ulty of Law, University of Ottawa. The following article is a substantially revised version of “Tak-
ing Matters Into Their Own Hands: The Increasing Role of the Public in Canadian Pollution Con-
trol,” a paper originally presented by the author at the meeting of the Law and Society Association,
Learned Societies Conference, Windsor, Ontario, June 7, 1988. The author would like to thank the
Law Reform Commission of Canada for support during preparation of the initial draft. Thanks are
also due to the many people who took the time to comment on earlier drafts, and in particular Paul
Emond (Faculty of Law, York University) and Robert Paehlke (Political Studies/Environmental
and Resource Studies, Trent University). I would also like to express my appreciation for the assist-
ance of government officials across the country who supplied me with information, and numerous
representatives from environmental groups for their insights. This article represents the opinions
of the author and not those of the Law Reform Commission of Canada, nor any of the aforemen-
tioned persons. Any errors or omissions are those of the author.
McGill Law Journal 1991
Revue de droit de McGill
1991]
TAKING MATTERS INTO THEIR OWN HANDS
Synopsis
Introduction
1. Democracy, Public Participation and Private Prosecutions: Concepts
II.
and Mechanics
A. The Basic Concepts
B. Public Participation at the Pre-Enforcement Stage
C. Private Prosecutions and the Machinery of Government
Pollution Control Enforcement and The Citizen: An Evolving Story
A. Citizen Enforcement of Penal Offences: Origin and Development
B. The Development of the Regulatory Offence
C. The Canadian Pollution Control Approach
1. Citizens Out in the Cold: 1960 – 1975
2. Bringing Citizens In, Part 1: 1976 – 1986
Bringing Citizens In, Part 11: 1986 – 1990
3.
D. Summary Observations
III. Three Case Studies: The Pollution Control Approach in Practice
A. R. ex rel. Howe v. Cyanamid Inc.
B. R. v. Crown Zellerbach Properties Ltd.
C. R. v. Suncor Inc.
D. Analysis
IV. Making it Work
A. Wanted: A Structured Approach to Enforcement
B.
Improving Private Prosecutions
Conclusions
REVUE DE DROIT DE McGILL
[Vol. 36
The history of the last 20 years in North America affords a number of instances
of why citizens and taxpayers distrust government or are highly skeptical of gov-
ernment actions and promises.’
Historically, our law has not found favour with the idea that members of the gen-
eral public should be entitled to invoke the aid of the courts whenever they per-
ceive a wrongful invasion of public as opposed to private rights … . The spectre
of the “busybody” or “meddlesome interloper” has loomed large
2
Introduction
When citizens initiate or conduct pollution offence prosecutions,3 two dia-
metrically opposed (and simplistic) reactions are commonly expressed. Either it
is concluded that government officials have been co-opted by industry, thus
necessitating citizen action; or, alternatively, private prosecutors are character-
ized as being on some type of personal vendetta against industry and/or govern-
ment –
they are “gadflies” or busybodies, meddling where they have no busi-
ness to interfere.
As the case descriptions of citizen-initiated prosecutions included in this
article reveal, the truth normally lies somewhere between these two extremes:
‘Waste Not Wanted Inc. v. R. (1987), [1988] 1 F.C. 239, 2 C.E.L.R. (N.S.) 24 at 57, Collier, J.
(T.D.). Note that the decision concerned an action in nuisance, whereas the focus of this article is
on citizen enforcement of regulatory pollution control laws.
2P.L. Bryden, “Public Interest Intervention in the Courts” (1987) 66 Can. Bar Rev. 490 at 492.
Note that Bryden’s article and comments are not directed specifically towards citizen enforcement
of regulatory laws.
3The subject matter of this article is citizen prosecution of regulatory offences. Regulatory
offences, for the purposes of this article, are penal offences adjudicated upon by the ordinary courts
which normally do not require proof of subjective intent to obtain a conviction and are usually part
of administrative regimes which control rather than prohibit a particular activity. This definition
is based primarily on the analysis of Dickson J. (as he then was) in R. v. City of Sault Ste. Marie
(1977), [1978] 2 S.C.R. 1299, 40 C.C.C. (2d) 353 at 373-75 [hereinafter Sault Ste. Marie cited to
C.C.C.].
The two most prevalent regulatory offence types are those of “strict” and “absolute” liability. A
strict liability offence was defined by Dickson J. in Sault Ste. Marie as one where an accused will
be convicted upon proof of the actus reus, unless the accused establishes on a balance of proba-
bilities that due diligence or reasonable care was exercised, or that a reasonable mistake of fact
occurred. Absolute liability offences were defined as those where the accused will be convicted
upon proof of the actus reus (supra at 373-74). According to E. Swanson & E. Hughes, The Price
of Pollution: Environmental Litigation in Canada (Edmonton: Environmental Law Centre, 1990)
at 159, “the vast majority of environmental offences are ones of strict liability.” Recently, the like-
lihood of certain absolute and strict liability offences withstanding s. 7 and s. 11 Canadian Charter
of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act
1982 (U.K.), 1982, c. 11 [hereinafter Charter], challenges has been questioned: see e.g., K. Webb,
“Regulatory Offences, the Mental Element and the Charter: Rough Road Ahead” (1989) 21 Ottawa
L. Rev. 419 [hereinafter “Regulatory Offences”].
1991]
TAKING MATTERS INTO THEIR OWN HANDS
in two of the three citizen initiated actions described,4 government officials
actually assisted citizens with their prosecutions. This hardly fits the stereotyp-
ical behaviour of an industry co-opted bureaucracy. In all three cases, courts
found the polluters guilty. Assertions that citizens are meddling are difficult to
maintain when the courts vindicate their concerns.
In effect, analysis of these cases suggests that private prosecutions are but
a symptom of a larger problem –
determining how much enforcement is nec-
essary and the proper role for citizens in that enforcement. To address this larger
problem it is necessary to focus on why citizen actions have provoked such
strong and divergent reactions. Once the causes of the tensions created by pri-
vate prosecutions are revealed, it may be possible to alleviate them.
The position taken here is that private prosecutions straddle an extremely
important cleft which exists in our society. It is the cleft between promise and
performance. The promises exist on a number of levels, embodied in expecta-
tions that elected officials represent the views of and are accountable to the pub-
lic, that citizens can meaningfully participate in decisions which affect them,
and that what is said in legislation is what will actually occur. To initiate a pri-
vate prosecution is to put these promises to the test, and to demand that they are
kept or that satisfactory explanations are provided for why they are not. The
strong emotions expressed when citizens launch prosecutions of pollution
offences are indications of the gap between promise and performance.
Perhaps not surprisingly given their educational and practical experience,
the natural predilection of many legally trained persons confronted with prob-
lems having legal dimensions is to launch into the debate at the level of legis-
lation and caselaw and emerge triumphantly sometime later with the sought-
after “technical” legal solution. But, by approaching problems in this manner,
there is a real likelihood that the solution arrived at will have missed the mark:
for example, it may be based on tacit assumptions about the governing process
which cannot withstand critical examination, or it may fail to fully take into
account the broader context in which the problem originally arose.
Thus, determining the role that the citizen can and should play in pollution
control enforcement necessitates a more fundamental examination of the extent
and practical implications of participatory democracy, the historical evolution
and development of regulatory processes, and the efficacy and weaknesses of
4 n R. ex rel. Howe v. Cyanamid Inc. (1981), 3 F.P.R. 151 [hereinafter Cyanamid], government
officials alerted a concerned citizen to the possibility of private prosecution actions, and provided
technical assistance and witnesses in the subsequent trial. In R. v. Crown Zellerbach Properties Ltd.
(1981), 3 F.P.R. 84 (B.C. Prov. Ct), aff’d (1983) 3 F.P.R. 107 (B.C. Co. Ct) [hereinafter Crown Zel-
lerbach] a government official actually “set up” the citizen prosecution, and then subsequently the
Crown conducted the trial. See below for further details. As to the representativeness of these
cases, see below at 801 & 815-17.
McGILL LAW JOURNAL
[Vol. 36
current governmental efforts to protect the environment. This article explores
legal aspects of these three issues in an attempt to arrive at solutions which can
simultaneously reduce the acrimony which surrounds private prosecutions,
enhance the ability of the citizen to participate in enforcement, and improve the
effectiveness of government pollution control efforts.
The article begins with an examination of some of the implicit expectations
which arise through the government law making and implementation process.
To do this it is necessary to start at the level of generalities, and then to move
to specifics. First, the concepts of public participation and democracy are exam-
ined, and links are drawn between them and private prosecutions. It will be seen
that at this very basic level, individuals have been instilled with beliefs about
the capabilities of government, the responsibilities it has to its citizens, and the
importance of public participation –
beliefs which give rise to expectations.
The next section examines the machinery of government put in place to
create and implement laws and to ensure their enforcement. The question is
raised of what role private citizens can and should play in enforcement when
elected representatives chosen on the basis of broad based electoral consensus
have been given the primary responsibility for administration and enforcement
of legislation. It will be seen how weaknesses associated with the ministerial
allocation of responsibilities for enforcement, and systemic problems with the
openness and accountability of this process, detract from public trust and con-
fidence in government enforcement activities. As a result, the likelihood of cit-
izens engaging in prosecutions to “set things right” is increased.
Next, the history of citizen involvement in penal offence enforcement is
briefly reviewed. While today enforcement actions by members of the public
are relatively rare, it will be seen that in the past citizen prosecutions were con-
sidered essential to the operation of offence regimes. It was only with the intro-
duction of a centralized “expert” bureaucracy charged with the responsibility of
implementing social legislation that the practical need for citizen enforcement
actions decreased. However, when the weaknesses of the bureaucratic approach
became evident, a revived role for private prosecutions was seen by many as
necessary, not so much as a supplement to government actions but as a check
for their improper or inadequate use.
The following section describes the development of the Canadian pollution
control approach. The difficulties created when bureaucrats respond to technical
pollution problems by entering into informal arrangements with regulatees and
other agencies without public input are examined. Moves toward re-integrating
a now distrustful and suspicious public into the process, first through adminis-
trative policies and then more recently through statutory commitments, are also
noted and discussed. While the recent moves towards governmental recognition
of the necessity for public participation in the pollution control decision process
1991]
TAKING MATTERS INTO THEIR OWN HANDS
(at least at the level of rhetoric) is a positive development, the weaknesses of
the current initiatives are also evident and examined.
With this background, three case descriptions of citizen initiated and/or
conducted prosecutions are set out and discussed, as a backdrop to the final part
of the article. Here, the problems of uncertain, unaccountable and inconsistent
prosecutorial enforcement activities and impediments to private prosecutions
are directly addressed and recommendations for changes are made.
Before embarking on this analysis, several preliminary remarks on the
approach and scope of the article are in order. First, the author assumes a certain
familiarity on the part of the reader with the legal-technical aspects of private
prosecutions. A number of studies have dealt with this topic in some detail.
Thus, for example, the question of which environmental legislation allows pri-
vate prosecutions and under what circumstances, and the impact of the distinc-
tion between indictable and summary conviction offences on the ability of a cit-
izen to initiate a prosecution will not be discussed here, since they have been
comprehensively treated elsewhere.5
Second, it is taken as understood that citizen enforcement is not a preferred
technique to achieve public environmental objectives. Indeed, it is viewed here
as a last recourse taken on by citizens when all other avenues have failed. Nev-
ertheless, the practical experience with such actions (discussed in this article)
amply demonstrates that private enforcements can successfully induce changes
of behaviour in individual cases, and provoke wholesale re-evaluations and
changes in government enforcement practices.
Third, the focus of the article is on industrial emissions control, which is
only a small subset of the complete galaxy of environmental protection actions
made possible in legislation and private law today. This having been said, it is
suggested that the experience of citizens in industrial pollution abatement
enforcement may be of value in the broader environmental protection context,
and even in other regulatory situations.
Private prosecutions to enforce pollution control offences are controversial
today not because of some technical feature or flaw with the mechanism, but
because they clearly point to the inadequacies of the current approach. The chal-
lenge is to address the weaknesses in current pollution control implementation,
5E.g., S.H. Bemer, Private Prosecutions And Environmental Control Legislation: A Study (Com-
missioned by the Department of the Environment) (Vancouver: Faculty of Law, University of Brit-
ish Columbia, 19,72); P. Bums, “Private Prosecutions in Canada: The Law and a Proposal for
Change” (1975) 21 McGill L.J. 269; L.E Duncan, Enforcing Environmental Law: A Guide to Pri-
vate Prosecution (Edmonton: Environmental Law Centre, 1990); Law Reform Commission of
Canada, Private Prosecutions (Working Paper No. 52) (Ottawa: Law Reform Commission of Can-
ada, 1986) [hereinafter Private Prosecutions].
REVUE DE DROIT DE McGILL
[Vol. 36
while simultaneously integrating citizen enforcement into this improved proc-
ess. This article represents an attempt to address this challenge.
I. Democracy, Public Participation and Private Prosecutions: Concepts
and Mechanics
A. The Basic Concepts
The question of the relation between public participation and democracy is
a vexing one which has occupied the attention of political theorists for centuries.
It underlies any understanding of the role and function of citizen prosecutions,
and so a brief discussion of the meanings and linkages between the concepts of
democracy, public participation and the ability to engage in private prosecutions
will be provided here prior to examining how these ideas have been synthesized
in the Canadian governmental system.
The concepts of democracy and public participation overlap to a signifi-
cant extent, yet the two notions are not identical. The word democracy is
derived from the Greek roots demos, meaning the “people,” and kratos, mean-
ing “authority.”6 In some ancient Greek city-states, democracy was literally gov-
ernment by the many, with all citizens regularly and directly participating in
both the making and implementing of laws.7
While today such “direct democracy” systems are rare, some commenta-
tors have advocated a return to the small scale populist approach, in the interests
of bringing a mass-consumption world economy back under control.’ Direct
democracies assume an active, capable, civic-minded populace, which has the
time, resources and inclination to involve itself in both making and carrying out
the laws. For most intents and purposes, the direct democratic approach can be
described as idealist.
In today’s mass population, complex societies the most common form of
democracy is known as “representative democracy.” Instead of rule by the peo-
ple as a whole, representatives are elected to make laws and govern on the basis
of competitive elections in the interest of the citizenry. In theory, then, the deci-
sions of the representatives derive their authority from popular elections.
Actions of those who govern are controlled through elections and a host of other
monitoring techniques.
6Discussion of basic concepts of democracy derived primarily from R. Jackson, D. Jackson &
N. Baxter-Moore, Politics in Canada: Culture, Institutions, Behaviour and Public Policy (Scarbo-
rough: Prentice-Hall, 1986) at 24-25.
71bid. at 24.
SSee, e.g., E.E Schumacher, Small is Beautiful: A Study of Economics as if People Really Mat-
tered (London: Abacus, 1974), especially c. 5.
1991]
TAKING MATTERS INTO THEIR OWN HANDS
It should be immediately apparent that any system which elevates some
individuals to act on behalf of others is susceptible to abuses of power and will
inevitably create questions in the minds of some as to who is being represented
on any particular decision, and the adequacy of that representation. In effect,
this division of responsibilities is an inherent source of tension in society, and
the issue of “trust” in the govemors by the governed is an on-going concern.
The existence of elections, question periods in legislatures, the courts, ombuds-
persons, etc., perform the function of “checks and balances” and “controls” on
the behaviour of the governors. It is probably apparent that Canada operates
under a form of representative democracy.
The expression “public participation” is here taken to mean those processes
whereby individuals and groups can influence government decisions which
affect or matter to them.9 The term “influence” is also in need of definition. As
one commentator has put it, “[t]o be in a position to influence a decision is not
the same thing as to be in a position to … determine the outcome or to … make
that decision.”‘” Thus, the notions of influence and public participation do not
necessarily imply control. Rather, they denote a clearly articulated and recog-
nized input into the process.
Ideally, the decision-making process should provide an opportunity for the
citizen’s individual input, and not simply an interchangeable and generic (per-
haps symbolic) gesture. While spontaneous and unstructured forms of public
participation are important, the emphasis here is on institutionalized forms of
public participation through legally and administratively sanctioned processes.”
While both direct and representative democratic systems are inherently
linked to the concept of public participation, there are certain forms of public
participation particularly associated with each. In the ancient Athenian model of
direct democracy, popular assemblies were a key mode of public participation
which allowed all citizens to involve themselves directly in the processes of
governing. A major difficulty with such a system might be determining ways of
achieving consensus in a fully participatory polity.
In representative democracies the elemental forms of public participation
are indirect (for example, elections, question period in Parliament), and so the
need for supplemental forms of public participation at the procedural and
9For a similar definition, see R. Parenteau, Public Participation in Environmental Decision-
Making (Ottawa: Supply and Services Canada, 1988) at 6. Parenteau also notes that public partic-
ipation may serve the political function of obtaining public support for decisions.
‘0C. Pateman, Participation and Democratic Theory (New York: Cambridge University Press,
1970) at 69.
“The phrase “legal and administrative processes” is intended to encompass both constitutionally
and legislatively sanctioned techniques, such as elections, public hearings, private prosecutions,
judicial review, and administrative activities, such as the practice of consultation prior to the pas-
sage of new policies or regulations, and complaints procedures relating to enforcement.
McGILL LAW JOURNAL
[Vol. 36
administrative level to ensure effective representation is increased. The further
one strays from the direct democracy model, the more one needs to incorporate
every possible form of public participation to compensate for the inadequacies
of indirect, representative democracy. Dussault and Borgeat refer to the work of
French legal commentator Isaac for the proposition that procedural administra-
tive democracy is becoming an essential tenet in the welfare state, for it
allows a more elaborate degree of democratization … by situating the democratic
process within the procedure for carrying out the decisions themselves, and no
longer in the context of designating even local representatives.12
Cairns, in a recent article focusing on the symbolic and practical implications
of Canada promulgating the Charter,13 notes that
[s]tate purposes now require so much popular support and participation if they are
to succeed that we have no alternative but to move in the direction of a more par-
ticipant citizenry, which shares on a day to day basis in the task of governing
itself.
14
In short, as a general rule, all institutionalized forms of public participation
should be encouraged in representative democracies. And given that private
prosecutions are a method of influencing government decisions, this form of
public participation should be encouraged in the interest of ensuring effective
representativeness of government.
B. Public Participation at the Pre-Enforcement Stage
There are probably as many forms of public participation as there are types
of government decisions. Obviously, the focus of attention with private prose-
cutions is the enforcement decision process, but it is important to recognize that
enforcement is merely the culmination of a much larger set of decision proc-
esses, beginning with the decision to create a law. For law and its enforcement
to be accepted in and acceptable to society, it is necessary that there be public
participation at all stages of the law making and implementation process. It is
necessary “to create a solidarity between (the citizens), and those who have to
apply (the decision); in short, enforcement, which has been agreed upon …. is
(emphasis added). Thus, it is important to review the processes which culminate
in enforcement decisions, and identify the opportunities for public participation,
even if at the present time this citizen input does not usually occur.
12G. Isaac, La procidure administrative non contentieuse (Paris: Librarie gdn~rale de droit et de
jurisprudence, 1968) at 240, para. 231, trans. in R. Dussault & L. Borgeat, Administrative Lalv:
A Treatise, 2d ed. (trans. M. Rankin) (Toronto: Carswell, 1985), vol. 1 at 278 n. 247.
13Supra, note 3.
14A.C. Cairns, “The Canadian Constitutional Experiment” (1984) 9 Dalhousie L.J. 87 at 87.
15Isaac, supra, note 12 at 236, trans. in Dussault & Borgeat, supra, note 12 at 288.
1991]
TAKING MATTERS INTO THEIR OWN HANDS
The process of promulgating legislation is normally the subject of exten-
sive public notice and comment. Draft bills are widely circulated to the general
public and more specifically affected parties; these bills are reviewed by Stand-
ing Committees and Parliament or provincial legislatures before the bill finally
becomes law.’6
In theory, Parliament and provincial legislatures are keenly concerned with
the implementation of laws because if they do not achieve their policy objec-
tives it will be necessary to amend the laws. In practice, laws may be passed for
their symbolic value,’7 or the full implications of implementation (for example,
the resource allocations necessary to secure compliance with the law) may not
be thought out.’
Public participation at the legislative stage can help to ensure that these
factors are at least recognized if not taken into account by legislators. Regard-
less of the motivations or limitations of M.P.s or members of provincial legis-
latures when they promulgate legislation, once such legislation is passed there
is an expectation that it will be appropriately implemented. 9 This expectation
represents another of the “promises” referred to in the introduction to this arti-
cle, and is the source of tensions when there is a perception that implementation
is not up to the mark.
The process of implementation involyes many decisions concerning
resource allocation. These decisions are made in light of finite budgets, prior-
ities of the particular department and of the government generally, and the exis-
tence of other agencies with related mandates. Again, in theory, this process
could be the subject of significant public consultation from the earliest stages
and result in a publicly disseminated compliance and enforcement policy, but in
practice this rarely takes place. Later in the paper we will examine a rare and
promising example where such a consultation process and policy have been
adopted for an environmental statute.2′
16See generally, Jackson, Jackson & Baxter-Moore, supra, note 6, c. 8.
17See, e.g., M. Edelman, The Symbolic Uses of Politics (Chicago: University of Illinois Press,
1967).
‘t For more detailed discussion on this point see, Law Reform Commission of Canada, Pollution
Control in Canada: The Regulatory Approach in the 1980s (Study Paper) by K. Webb (Ottawa:
Law Reform Commission of Canada, 1988) at 49-50 [hereinafter Pollution Control in Canada].
19This expectation arises because certain elected officials have been given the specific respon-
sibility over all matters within a specific policy context, such as “the preservation and enhancement
of the quality of the natural environment” (Department of the Environment Act, R.S.C. 1985, c.
E-10, s. 4(1)(a)), or “the administration of public affairs” (Department of Justice Act, R.S.C. 1985,
c. J-2, s. 4(a)).
20Environment Canada, Canadian Environmental Protection Act Enforcement and Compliance
Policy (Ottawa: Supply and Services, 1988) [hereinafter Enforcement Policy]. See infra, note 255
and accompanying text.
REVUE DE DROIT DE McGILL
[Vol. 36
Public participation at the stage of drafting implementation policies pro-
vides individuals and regulatees with an indication of the way an agency or
department plans to administer and enforce legislation. It also gives individuals
the opportunity to bring information to the attention of government, and per-
suade government of the merits of a particular approach. Where such consulta-
tions take place, there is a strong expectation that the law will then be imple-
mented that way. Where implementation policies are not made known in draft
and final form, there is still a general expectation that the law will be enforced
in a fair, consistent and predictable manner; but there is considerably less cer-
tainty as to exactly how implementation will proceed. Again, expectations here
represent implicit promises which create tensions when there are later percep-
tions that nothing or less than adequate implementation is taking place.
Departments or agencies will inevitably be involved in on-going commu-
nications with respect to individual regulatees, in order, for example, to set
emission standards and target dates for installation of equipment, to respond to
new problems, and to receive and exchange monitoring data. Although these
on-going communications are usually highly technical, any agreements between
government and regulatees could and arguably should be subject to public
notice and comment, and compliance data publicly disseminated in regular
reports. Hence, public participation at the individual regulatee administrative
level could take place. Even in the absence of such consultations and public
information dissemination, there is an expectation that the law is being admin-
istered in a fair, consistent and predictable manner.
It is within this greater context that agencies and departments eventually
make enforcement decisions. A wide range of decisions surround the enforce-
ment process: What is the nature of the violation of the law?2 Why has the vio-
lation occurred?22 What enforcement response is appropriate?’ Who should
bring that enforcement response?24 In the event that there is a compliance and
enforcement policy in place, and that policy was subject to public notice and
comment in draft stages, a concerned citizen would have some expectation of
a government response. Where information concerning the progress of individ-
ual regulatees has been regularly made public and agreements with the regu-
latees have been subject to public approval, a concerned citizen can make an
informed response about the need for private enforcement actions. On the other
2 1E.g., has there been serious damage to the environment?
22E.g., was the act intentionally committed, the result of carelessness, or was it beyond the con-
13E.g., is there a history of non-compliance? How good is the evidence? Will abatement be
achieved more readily through administrative means? What is the specific and general deterrence
value of a prosecution when compared with other available techniques?
24E.g., should federal Fisheries and Oceans, R.C.M.P., or Environment officials take the lead?
trol of the accused?
What role should provincial authorities play?
1991]
TAKING MATTERS INTO THEIR OWN HANDS
hand, where government has failed to inform the public and offer the opportu-
nity for public input concerning the implementation process, there is a greater
likelihood that a citizen might feel compelled to initiate an enforcement action
on her own initiative.
C. Private Prosecutions and the Machinery of Government
The decision to initiate a prosecution is a very serious one in our society,
for it directly brings into question the character of the accused, and could result
in deprivations of liberty or other interests. Damage to the character of the
accused and enormous legal defence expenses may be incurred even though
eventually the accused could be acquitted of all charges.’ Reflecting the seri-
ousness with which society treats such accusations, the rights of the accused in
the pre-arrest (for example, investigation), arrest and trial stages are preserved
in the Criminal Code26 and the Charter27
In addition, in an apparent effort to ensure that only technically and sub-
stantively sound charges are proceeded with, responsibility for investigation of
offences and initiation of prosecutions within government is usually divided
among several Ministers. In theory these Ministers are politically accountable
to Parliament or the legislatures and the electorate. Whether or not she is aware
of it or desires it, the private prosecutor is a part of this process.
The question then becomes, where do citizen legal actions to enforce pub-
lic wrongs fit, when there are officials who have been elected on the basis of
popular consensus, and have been designated the responsibility of carrying out
the functions of protecting the environment and supervising the justice system,
on behalf of the public? To answer this it is necessary to examine the govern-
mental prosecution decision process and its weaknesses. Once there is recogni-
tion of the inherent limitations in this process, the role for private prosecutions
becomes clearer.
‘The situation with respect to Nurse Nelles in Toronto is perhaps the best example of the dam-
age which can take place to an accused who is eventually found to have been wrongly accused of
a crime. In fact, the Nelles affair lead to an action for malicious prosecution against the Crown.
See Nelles v. Ontario, [1989] 2 S.C.R. 170, 60 D.L.R. (4th) 609 [hereinafter Nelles], which set out
the parameters for a successful prosecution. I am indebted to Mr. Glenn Gilmour of the Law
Reform Commission of Canada for his assistance concerning the Nelles case and Criminal Code,
R.S.C. 1985, c. C-46 [hereinafter Criminal Code] provisions.
26 More specifically, regarding protection of potential accuseds at the pre-arrest (investigation)
stage see, e.g., Criminal Code, part VI concerning invasion of privacy by the use of wiretaps. See
also procedures circumscribing the issuance of search warrants, especially ss 487 and 487.1. Con-
cerning the limits of powers to arrest, the circumstances in which releases from custody can take
place and the judicial obligation to release on bail, see ss 495-499, 515, 520 & 522. With respect
to protections at trial see, e.g., ss 603 and 605.
27Ss 7-15. Regarding recent applications of s. 7 and s. 11 to regulatory offences see “Regulatory
Offences,” supra, note 3.
McGILL LAW JOURNAL
[Vol. 36
The prosecution process can be broken into three separate functions: detec-
tions, investigations and, where warranted, prosecutions. In government, the
prosecution functions are divided among several actors, and are subject to cer-
tain checks and balances. A major problem, from the perspective of the con-
cerned citizen, is the visibility of this process: if it is difficult to observe what
is happening, then there is greater potential for suspicion to arise. The recent
British Columbia Discretion to Prosecute Inquity s established because of per-
ceived wrongdoing concerning certain enforcement decisions in that province,
is a perfect example of the dangers of government proceeding in a non-visible
way. The Inquiry revealed that with respect to a government decision not to
prosecute a certain public official, a credible, thorough investigation consider-
ing the merits of prosecutorial action had taken place and that there was no
political or other improper influence or interference at any stage.29 But this had
not been made clear to all members of the public. As a result, one of them
engaged in a private prosecution.30
With respect to environmental enforcement, responsibility for the process
leading to prosecutions is divided primarily between the Minister of Environ-
ment and the Attorney General. Officials under the Minister of Environment are
in the logical position to detect offences, and conduct investigations concerning
them, relying primarily on information obtained through inspections, monitor-
ing reports, and communications with regulatees and members of the public.
This may lead to recommendations for prosecutions to the Attorney General, or
to other enforcement actions, or to no action whatsoever. As will be discussed
in greater detail later in the article, the need for the Minister to develop a pub-
licly vetted and disseminated implementation policy which explains the Minis-
ter’s approach to implementation and the criteria upon which responses are
made, is clear. The need for publication of non-compliant regulatees is also
readily apparent.3
It is interesting to compare this Environment-Attorney General recom-
mendatory process with that for enforcement of Criminal Code offences. In all
but three provinces, the police not only are the primary officials responding to
violations and conducting investigations, they are also responsible for laying the
charges.32 The Attorney General then may either proceed with or stay the pros-
ecutions.33
2British Columbia, Discretion to Prosecute Inquiry (November 1990) (Chair: S. Owen) [here-
inafter Owen].
291bid. at 58ff.
30Ibid. The prosecution was later abandoned.
310n this point, see recent initiative of the B.C. Ministry of Environment, described infra, note
32Law Reform Commission of Canada, Controlling Criminal Prosecutions: The Attorney Gen-
eral and the Crown Prosecutor (Working Paper 62) (Ottawa: Law Reform Commission of Canada,
1990) at 69-70 [hereinafter Controlling Criminal Prosecutions].
290 and accompanying text.
33Criminal Code, s. 579(1).
1991]
TAKING MATFERS INTO THEIR OWN HANDS
The advantage of such an approach is that there is a “window” for public
scrutiny –
it is possible for M.P.s or members of provincial legislatures, the
media and the public to become aware of the fact that there have been detections
of offences, and that there were reasonable and probable grounds for police to
believe that an offence had taken place. Should the Attorney General then
decide against going ahead with the prosecution, it would be at least theoreti-
cally possible for M.P.s or members of provincial legislatures to follow up on
the matter in Parliament or the legislatures. The disadvantage of this approach
is that Attorney General pre-scrutiny of police information could reveal techni-
cal or other problems with the charge. This would avoid the necessity of a
flawed prosecution, with costs to both the accused and the state.’ 4 For this rea-
son, the Law Reform Commission of Canada has suggested that police should
only lay charges after consultations with the Attorney General or a suggested
new body, the Director of Public Prosecutions.”
The Attorney General has the primary responsibility over prosecutions. In
the Canadian justice system, the peculiar and difficult position of the Attorneys
General as both representatives of the Crown responsible for public prosecu-
tions and members of Cabinet, has been noted by several writers. A recent Law
Reform Commission of Canada Working Paper speaks of the potential for con-
flict of interest inherent in the office of the Attorney General in performance of
its prosecution responsibilities, and the need “to have someone act independ-
ently and free of political pressure or other conflicts.”36 Arguably, this is partic-
ularly so in the environmental context, where the actions of Crown agents might
very well be the focus of concern. 37
It is in recognition of these problems that the Law Reform Commission of
Canada has recommended creation of an independent office of the Attorney
General (the Director of Public Prosecutions) who would report to the Attorney
General.” It is not necessary, for the purposes of this discussion, to describe in
full the nature of this proposed office and its relation to the Attorney General.
It is sufficient to note that, given awareness of the current position of the Attor-
ney General and its inherent limitations, the need for private prosecutions as a
check on the improper exercise of the Attorney General’s powers is self-evident.
Currently, it is the responsibility of the Attorney General to decide which
recommendations for prosecutions it will pursue. However, recent studies sug-
gest that, with respect to criminal offences, the criteria upon which such deci-
34Supra, note 32 at 71.
35Ibid. at 73. This recommendation must be read in light of the other recommendations, which
include stipulations that guidelines be published concerning prosecution decisions, and the creation
of a new office of public prosecutor (see infra, note 37 and accompanying text).
36Ibid. at 1-2.
37E.g., where a Crown corporation is polluting, or a where a federal Minister responsible for
reviewing the environmental viability of a project appears to be neglecting her duties.
38Supra, note 32 at 115.
REVUE DE DROIT DE McGILL
[Vol. 36
sions are made vary from one jurisdiction to another,39 and in some cases there
is no clearly articulated test.n In the interests of certainty, consistency, fairness,
equality of treatment and predictability, there is a clear need for articulation of
criteria. Moreover, there is a readily apparent need for the public to comment
on these criteria in draft form and for the publication of the final version.,
Again, in the absence of such published criteria, the likelihood of public suspi-
cion arising, and a concerned person feeling the need to initiate proceedings, is
increased.
The Attorney General has the authority to intervene in any private prose-
cution to either conduct or stay it.4″ The authority of the Attorney General to
supervise private prosecutions and ensure that improper actions do not proceed
seems to be a sensible check on the private prosecutorial power, given that, at
least theoretically, political accountability exists for this decision, and some pri-
vate prosecutions may be ill-conceived. When the Attorney General does inter-
vene and/or stay a private prosecution, the question of whether the public inter-
est is being appropriately represented becomes an issue. The ability of
Parliament and the courts to hold the Attorney General accountable for such
decisions has increasingly been the subject of question in recent years.43 The
political accountability of Ministers of the Crown to the House of Commons, in
the form of being called upon to answer questions and being censured in the
case of wrongdoing, is limited in practice by party solidarity and the “after-the-
fact” nature of any questioning which does take place.44
There is also a limited possibility of judicial accountability with respect to
the Attorney General’s decision to initiate and continue prosecutions and to
intervene in the actions of private citizens. The most recent cases suggest that
courts would not interfere with an Attorney General’s decision to stay a pro-
ceeding absent proof of flagrant impropriety45 or demonstration to the satisfac-
tion of the court that the Attorney General acted with bias or had abused the
law.46 The introduction of the Charter may open further avenues for review and
Criminal Prosecutions, supra, note 32 at 79-84.
39Supra, note 28 at 30-32.
4E.g., in Alberta there is no clearly articulated test with respect to “routine” cases (ibid. at 30).
4 1For a Law Reform Commission of Canada recommendation along these lines, see Controlling
4 2Criminal Code, s. 579(1). See, Re Dowson andR. (1980), 57 CCC (2d) 140, 19 C.R. (3d) 384
(Ont. H.C.), aff’d (1981), 24 C.R. (3d) 139, 62 C.C.C. (2d) 286, rev’d [1983] 2 S.C.R. 144, 35
C.R. (3d) 289; R. v. Hauser, [1979] 1 S.C.R. 984, 98 D.L.R. (3d) 193; Controlling Criminal Pros-
ecutions, ibid. at 18 & 65.
43See Controlling Criminal Prosecutions, ibid. at 11-15.
“Ibid. at 11-12.
45Campbell v. A.G. Ontario (1987), 60 O.R. (2d) 617, 35 C.C.C. (3d) 480 (C.A.), aff’g (1987),
58 O.R. (2d) 209,31 C.C.C. (3d) 289 (H.C.) [hereinafter Campbell]; R. v. Osiowy (1989), 77 Sask.
R. 1, 50 C.C.C. (3d) 189 (C.A.) [hereinafter Osiowy].
46A.G. Quebec v. Chartrand (sub nom.) Macabee v. Chartrand, [1987] R.J.Q. 1732,59 C.R. (3d)
388 (C.A.). See also, Controlling Criminal Prosecutions, supra, note 32 at 23. The question can
1991]
TAKING MATTERS INTO THEIR OWN HANDS
control of prosecutorial discretion, particularly in relation to the notions of fun-
damental justice47 and equality.48 Since Operation Dismantle v. R.49 it has been
clear that all executive powers are subject to scrutiny under the Charter; how-
ever, to date, the Charter has not been invoked successfully to overturn a deci-
sion of the Attorney General to stay a prosecution.”
The need for publicly vetted and disseminated criteria upon which deci-
sions to stay or intervene are made is, again, readily apparent. Some jurisdic-
tions, such as Alberta and British Columbia, have express policies that private
prosecutions will not be allowed to proceed: the actions will either be conducted
by the Attorney General or stayed.5 Given the possible impact such a policy can
have on the actions of citizens, a strong argument can be made that such policies
should be publicly vetted and disseminated, and that the criteria upon which
such decisions are made should be included. A general policy of providing rea-
sons upon request for a decision to stay would appear to be a sensible additional
check on the Attorney General’s stay power, bearing in mind the limitations of
political and judicial accountability at the present time.
It can be seen, then, that as the elected official appointed the task of super-
vising the prosecution, the Attorney General is the primaly although not the
exclusive guardian of the public interest. To some degree, her actions are
accountable to Parliament and to the courts. However, in the absence of private
prosecutions, it may be more difficult to hold the Attorney General accountable
for decisions not to undertake prosecutions, than for decisions to prosecute.
In effect, a decision by the Attorney General not to prosecute can be all but
invisible to Parliament, the public, and the courts. Private prosecutions force
this decision process to the surface: either the Attorney General allows the pri-
vate action to go ahead (raising the issue of why the Attorney General did not
bring the action herself), intervenes and conducts the prosecution (raising the
same issue), or stays the proceeding (which provokes questions as to why an
enforcement action should not take place).
be asked whether failure on the part of government to establish a publicly vetted compliance and
enforcement policy might be considered a “flagrant impropriety” or an abuse of law.
47S. 7.
48S. 15(1).
49[1985] 1 S.C.R. 441, 18 D.L.R. (4th) 481.
50Campbell, supra, note 45 (a stay of proceedings does not infringe the complainant’s Charter
rights). See generally, Controlling Criminal Prosecutions, supra, note 32 at 25. For an optimistic
perspective on the potential of the courts to review stays in light of inequalities, see P. Finkle &
D. Cameron, “Equal Protection in Enforcement: Towards More Structured Discretion” (1989) 12
Dalhousie L.J. 34.
51With respect to Alberta, see I. Cartwright, “Practice Note – A Private Prosecution in Alberta
– A Painful Process” (1990) 1 J. Env. L. & Practice 110 at 110. For British Columbia, see Owen,
supra, note 28 at 90-91.
McGILL LAW JOURNAL
[Vol. 36
In light of these difficulties and the potential for conflict of interest, the
importance of private prosecutions seems self-evident. It can be seen that
emphasis on the function of private prosecutions as a check on government
enforcement action or inaction bespeaks of its negative, constraining, and react-
ive characteristics as a means of participation –
that is, in keeping with the phi-
losophy underlying the representative theory of democracy, its purpose is to
control the elected officials and the administrators responsible to them.
In a more positive light,52 private prosecutions offer the opportunity for
direct citizen involvement in the criminal justice process. One commentator
remarks as follows:
[A] criminal justice system that makes provision for private prosecution of crim-
inal and quasi-criminal offences has advantages over one that does not…. In any
system of law, particularly one dealing with crimes and quasi-crimes, it is of fun-
damental importance to positively involve the citizen. Giving him the opportunity
of presenting his case before a court, even where a public official has declined to
take up the matter, is one way of ensuring such participation. 53
Thus, private prosecutions can be viewed as a useful supplement to government
action, and not merely a check on government efforts. As will be seen, histor-
ically this was the primary function of citizen enforcement.
In those cases where private prosecutions are allowed to proceed, the issue
is how and why a citizen conducted prosecution differs from a public prosecu-
tion. Because of the strict rules of evidence and procedure associated with the
proof process, there is little opportunity at the proof stage for the citizen to
express a particular viewpoint on the incident different from a Crown prosecutor
conducting the same proceedings.’
Nevertheless, it is probably true to say that the Crown prosecutor, as a pub-
lic official, acting in the public interest and accountable for his actions ulti-
mately to Parliament (and to a certain extent to the courts), operates under prac-
tical constraints which may not similarly impede a citizen prosecutor. The
position of the Crown prosecutor in conducting a trial has been described as a
521.e., in the sense that private prosecutions are not merely constraints on improper government
53Bums, supra, note 5 at 296. See an almost identical sentiment expressed in Private Prosecu-
action.
tions, supra, note 5 at 3.
54To put it another way, assuming both private prosecutors and Crown prosecutors are compe-
tent, dedicated to their task, and in possession of the evidence needed to prove guilt, the technical
constraints of the trial proof of guilt process require the prosecutor to closely follow certain steps.
These include: proof of the actus reus, proof that the accused committed the actus reas, and, in
the case of a strict liability offence where the defence of due diligence is in dispute, proof that the
accused did not exercise reasonable care. These constraints do not provide prosecutors with the
type of latitude which would facilitate the communication to the judge of a distinctive citizen, as
opposed to Crown, perspective.
1991]
TAKING MATTERS INTO THEIR OWN HANDS
“quasi-judicial office.”’55 This implies that the office holder must act in a some-
what reserved and impartial manner, when compared with, for example, a pri-
vate litigant. In the Supreme Court of Canada decision of Boucher v. R.,56 Mr.
Justice Rand elaborated on the role of the Crown prosecutor as follows:
It cannot be- over-emphasized that the purpose of a criminal prosecution is not to
obtain a conviction, it is to lay before a jury what the Crown considers to be cred-
ible evidence relevant to what is alleged to be a crime. Counsel have a duty to see
that all available legal proof of the facts is presented: it should be done finmly and
pressed to its legitimate strength but it must also be done fairly. The role of pros-
ecutor excludes any notion of winning or losing; his function is a matter of public
duty than which [sic] in civil life there can be none charged with greater personal
responsiblity. It is to be efficiently performed with an ingrained sense of the dig-
nity, the seriousness and the justness of judical proceedings.57
In practical terms, this would appear to mean that a Crown prosecutor may not
be as single-mindedly aggressive as a private prosecutor in the same situtation.
In her inherent supervisory capacity, there is always the possibility that the
Crown prosecutor could either take over a private prosecution or stay it if it was
felt that the agressive conduct of the private prosecutor exceeded the bounds of
propriety. 8
Apart from the act of initiating a prosecution, the real opportunity for cit-
izen prosecutors to clearly exhibit their distinctive perspective would appear to
be in speaking to sentence. Even with the most basic pollution control offences,
the question of the magnitude of the fine sought and, in certain cases, the appro-
priateness of the imprisonment option, are issues where the eloquence, tenacity
and unique perspective of the citizen prosecutor can be fully revealed, and can
lead to different results. The more elaborate pollution control regimes provide
for considerably more diverse sentencing options than simply fines and/or
imprisonment. For example, under the Canadian Environmental Protection
Act59 once a finding of guilt has been made, the court can make orders having
the following effects:
55E.g., Re Forrester and R. (1976), 1 Alta. L.R. (2d) 326, 33 C.C.C. (2d) 221 at 277 (S.C.T.D.).
56[1955] S.C.R. 16, 20 C.R. 1 [hereinafter Boucher cited to S.C.R.].
571bid. at 23-24.
58For example, in Controlling Criminal Prosecutions, supra, note 32 at 19 the following is
stated:
Ultimately, … the Attorney General has supervisory authority over all prosecutions.
Even in the case of privately commenced and conducted prosecutions, it will be true
that no criminal proceeding occurs without at least the Attorney General’s sufferance.
In this sense, then, the Attorney General is ultimately accountable to Parliament not
only for using the power to intervene and stay charges, but also for a decision not to
intervene.
5 9R.S.C. 1985, 4th Supp., c. 16 [hereinafter C.E.P.A.].
REVUE DE DROIT DE McGILL
[Vol. 36
130.(1) …
(a) prohibiting the offender from doing any act or engaging in any activity that
may result in the continuation or repetition of the offence;
(b) directing the offender to take such action as the court considers appropriate
to remedy or avoid any harm to the environment …
(c) directing the offender to publish, … the facts relating to the conviction;
(d) directing the offender to notify, at the offender’s own cost … any person
aggrieved or affected by the offender’s conduct … relating to the conviction;
(e) directing the offender to post such bond or pay such amount of money into
court as will ensure compliance with any order made …
(h) directing the offender to perform community service, subject to such reason-
able conditions as may be imposed therein;
(i) directing the offender to pay … an amount for the purposes of conducting
research into the ecological use and disposal of the substance in respect of which
the offence was committed; or
(j) requiring the offender to comply with such other reasonable conditions as the
court considers appropriate and just in the circumstances …
131.(1) the court may, … on the application of the person aggrieved, order the
offender to pay to that person an amount by way of satisfaction or compensation
for loss or damage to property …
Faced with this diversity of options, it is apparent that a private prosecutor could
decide to pursue different sentencing avenues than a Crown prosecutor in the
same circumstance. In some respects, the private prosecutor is undoubtedly at
a disadvantage in speaking to sentence when compared with the position of a
Crown prosecutor (for example, in obtaining the information upon which to
base a request for an order requiring remedial action), but at the same time the
impassioned pleas of citizen prosecutors speaking as local victims of the pollu-
tion may carry greater weight with sympathetic judges than would the same
arguments made by a dispassionate Crown prosecutor.
II. Pollution Control Enforcement and the Citizen: An Evolving Story
Although legislation addressing aspects of the pollution problem can be
traced at least as far back as fourteenth century England6” and the early days of
Confederation in Canada,6 the “modem” era of Canadian pollution control is
generally considered to have commenced in about 1960.62 At about that time,
blanket prohibitions of polluting behaviour started to be replaced by control
regimes, whereby pollution was prohibited unless the effluent discharge was of
69(l); Manitoba Sanitary Act, S.M. 1871, c. 28, s. 1.
6See infra, note 63 and accompanying text.
61E.g., Fisheries Act, S.C. 1868, c. 60, s. 14; Ontario Public Health Act, S.O. 1884, c. 38, s.
62See, e.g., J.A. Kennedy, “Foreword to the First Edition” in D. Estrin & J. Swaigen, eds, Envi-
ronment on Trial: A Handbook of Ontario Environmental Law (Toronto: Canadian Environmental
Law Research Foundation, 1978) at x. See also, A.R. Thompson, Environmental Regulation in
Canada: An Assessment of the Regulatory Process (Vancouver: Westwater Research Institute, Uni-
versity of British Columbia, 1980) at 27.
1991]
TAKING MATTERS INTO THEIR OWN HANDS
a type, in a quantity or concentration, and under conditions authorized by reg-
ulations or licences. 3
The role of the private prosecution in pollution control today is to a large
extent the result of its historical development in relation to the more basic penal
offence regimes of the past. Originally, private prosecutions played a prominent
role in the enforcement of public wrongs, but, starting in the nineteenth century,
this role was diminished as a centralized full-time public inspectorate became
more common.’ There can be no doubt that in the last two centuries the legal,
administrative and institutional machinery of governing has developed consid-
erably, but the question is, how has this development affected the rationale for
and practice of private prosecutions?
To answer this, the origin and development of citizen enforcement of penal
offences will be discussed, as will the rise of a centralized bureaucracy to
administer social regulation. With this background it will then be possible to
undertake a more focused review of how the pollution control regulatory
approach evolved, and how this development has affected the need for citizen
prosecutions and the ability of citizens to conduct them.
A. Citizen Enforcement of Penal Offences: Origin and Development
Before the nineteenth century, England depended heavily on citizen actions
to enforce many of its penal statutes. At least since the thirteenth century, a spe-
cial means of bringing a legal action known in Latin as qui tam pro domino rege
quam pro seipso (“he who as much for the king as for himself’) permitted the
consolidation of the king’s and private party’s interests into one proceeding.6″ In
effect, a qui tam action was initially one where a private wrong coincided with
a wrong to the king.66 The qui tam suit was available to combine royal and pri-
vate interests in both civil and penal actions.67
Although the qui tam suit was originally a common law remedy, as early
as the fourteenth century there began to be provisions in penal statutes permit-
ting private actions for public wrongs.6” Early public health acts –
the prede-
63See generally, supra, note 18 at 11-15.
64See, e.g., the discussion of the creation of public inspectorates for food and drug legislation
in I. Paulius “Strict Liability: Its Place in Public Welfare Offences” (1977-1978) 20 Crim. L.Q. 445
at 452-53.
65Discussion of qui tam based primarily on Note, “The History and Development of Qui Tam”
(1972) Wash. Univ. L. Qtly 81.
66In fact, the king’s interests were originally considered a special class of private interest. As
sovereignty and national status interests developed, those which were “directed toward the general
well being of the kingdom” (ibid. at 83-84) became public interests. These public interest wrongs
came to be set out in statutes.
67Needless to say, the distinction between civil and penal proceedings has become considerably
clearer as time has progressed.
6
8Stpra, note 65 at 86.
McGILL LAW JOURNAL
[Vol. 36
cessors of modem pollution control legislation –
included specific reference to
citizen enforcement. Thus, for example, a 1388 statute enacted by Parliament to
address the problem of “so much Dung and Filth of the Garbage and Intrails as
well as of Beasts killed … cast and put in Ditches, Rivers,’and other Waters”
stipulated that offence proceedings could be initiated either by public officials
or any who “feel [themselves] aggrieved.”69
Commentators classify the private parties who could bring actions under
common law qui tam or penal statutes which provided for private enforcement
into two different types. The first were the direct victims of the offender’s
actions. The second were “common informers.”‘7 Private parties could both ini-
tiate the qui tam actions, and share with the king or some public use the penalty
awarded.7 In some legislation it was stipulated that the plaintiff had to be a vic-
tim of the wrongdoing, while in other instances informers could bring the
action.72
Starting in the fourteenth century, informers who initiated proceedings
under certain penal statutes could receive a share of the penalty imposed. For
example, the 1331 Statute Prohibiting the Sale of Wares After Close of Fair.3
gave the private prosecutor a quarter share of the penalty imposed upon convic-
tion.74 In time, common informer provisions came to be subject to various forms
of abuse: “[a] friend of the wrongdoer would bring suit and either obtain a con-
fessed judgment for a small part of the penalty or permit the wrongdoer to pre-
vail at a feigned trial.”75 As well, some informers became “overly aggressive”
and “vexatious” by prosecuting little known and obsolete violations.76
In fact, abuses of informer provisions became so widespread that in the
face of public outcry, Parliament at various times abolished informer actions
altogether, only to subsequently re-introduce them (because informers were still
needed to enforce English penal laws) with amendments intended to limit the
potential for abuse.77 It is important to keep in mind that during this time period
prosecuting offences was often a straightforward task. The simple nature of
offences and the comparatively unsophisticated nature of proceedings meant
that informers did not need to prepare detailed briefs nor hire lawyers. Thus,
69The Statute of 12 Rich. II, c. 13 (1388), reproduced in B. Boyer & E. Meidinger, “Privatizing
Regulatory Enforcement: A Preliminary Assessment of Citizen Suits Under Federal Environmental
Laws” (1985) 34 Buffalo L. Rev. 833 at 947 n. 279.
70Supra, note 65 at 84-87.
71Ibid. at 87. With respect to the “public use” see supra and especially n. 34 and accompanying
text.72Ibid. at 86.
735 Edw. 3, c. 5, s. 6.
74Supra, note 65 at 86.
75Ibid. at 89.
761bid.
77Ibid. discussing legislative provisions in the fifteenth and sixteenth centuries.
1991]
TAKING MATTERS INTO THEIR OWN HANDS
there were few impediments, and considerable incentives, to pursuing such
actions.
By the seventeenth century, the concept of private enforcement of English
penal statutes had gained widespread acceptance. 8 The industrial revolution
rose to full prominence in England in the eighteenth and nineteenth centuries.
The impact of industrialization on the lives of the average individual was
devasting. Polanyi talks of a “miraculous improvement in the tools of produc-
tion, which was accompanied by a catastrophic dislocation of the lives of the
common people.”79 Small shops, guilds, and a rural/agrarian population base
were replaced by corporations, factories and massive urbanization.
In the face of this frontal assault on the fabric of English society, Parlia-
ment promulgated new and/or expanded factory, public health, as well as food
and drug legislation in the nineteenth century. 0 But these initial legislative for-
ays proved inadequate: according to commentators, part of the problem was
resistance by Parliament to the need for a centralized and professional inspec-
torate charged with the responsibility of administering and enforcing the legis-
lation. Paulius describes the situation that faced private prosecutors of adulter-
ated food offences prior to the introduction of full time inspectorates:
Needless to say, the time, money and expertise required to instigate a prosecution
made it impossible for the bulk of the working population, and very inconvenient
for the middle-class consumer, to enforce the law.8′
In effect, at a practical level, the centralized bureaucracy gradually assembled
to administer this social regulation over the following century was intended to
do away with the necessity for private prosecutions.
B. The Development of the Regulatory Offence
Other factors also contributed to the marginalization of the citizen’s role in
enforcement. By the nineteenth century, courts had established the general rule
that mens rea was a required element to be proved for all penal offences.”2 Prov-
ing the intent of corporate defendants presented a formidable barrier to any
prosecutor 3 and obviously placed citizens at a particular disadvantage.
78Ibid. at 90.
79K. Polanyi, The Great Transformation (Michigan: Octagon Books, 1975) at 33.
8See generally, supra, note 64.
“Ibid. at 452.
82Blackstone, Commentaries on the Laws of England (1809), Book IV, 15th ed., c. 15 at 21.
83Supra, note 64 at 451 states:
Some one hundred years ago people starved to death; were accidentally killed during
work; lived in indescribably unhealthy and filthy conditions and, as a consequence,
died of infectious diseases; … were poisoned or made ill by unwholesome food – all
because means were lacking to prove that those who were exploitative or negligent
were in fact guilty of morally reprehensible crimes. This history of the Passenger Acts,
REVUE DE DROIT DE McGILL
[Vol. 36
Although there developed a line of cases approving offences where no intent
needed to be proved,’ confusion in Canada continued through the 1970s as to
which offences required intent and which did not.” In the face of this uncer-
tainty alone, it is no wonder that private prosecutions were not common
occurences.
The judicial acceptance of the strict liability offence in the Sault Ste. Marie
case resolved much of the confusion concerning the nature of most pollution
offences. Speaking for the Supreme Court of Canada, Dickson J. unambigu-
ously characterized most pollution offences as ones of strict liability, i.e. not
requiring proof of intent but allowing the accused to escape conviction if he
could establish due diligence or reasonable mistake of fact on a balance of prob-
abilities.8 6 However, the availability of the due diligence defence represented a
new barrier to the private prosecutor: frequently, the actions of government
seem to be on trial almost as much as those of the accused when due diligence
defences are raisedY Private prosecutors are in a difficult position to counter an
accused’s assertions that the abatement equipment installed was “state of the
art” and that government officials agreed with the accused’s progress.88
C. The Canadian Pollution Control Approach
1.
Citizens Out in the Cold: 1960 – 1975
As was said earlier, although there were basic outright prohibitions of pol-
lution in Canadian legislation since Confederation, the “modem” era of Cana-
dian pollution control is generally considered to have commenced in about
1960, when prohibitions began to give way to “command and control” regimes
permitting certain effluent discharges authorized by regulation or licencing type
agreements. 89
To enforce these new control regimes, administrators were given increased
powers to require polluters to make modifications, disclose information, con-
duct tests, install equipment and to take clean up action.9 New obligations on
factory legislation, sanitary and public health regulations, and the food and drug laws,
clearly shows that the overall abuses resulting from the industrial revolution, could
only be curbed by a compulsorily enforced criminal law which suspended the require-
ment of mens rea (emphasis added).
defence to withstand challenges under the Charter, see “Regulatory Offences,” supra, note 3.
84See discussion, “Regulatory Offences,” supra, note 3.
85As discussed in Sault Ste. Marie, supra, note 3.
86lbid. at 374. For a discussion of a new potential difficulty in the ability of the due diligence
87See case descriptions below at 803-15.
88More will be said on these points below.
89See generally, Pollution Control in Canada, supra, note 18 at 11-15.
90Ibid. at 12-13.
1991]
TAKING MATTERS INTO THEIR OWN HANDS
the part of polluters to monitor their effluents and supply the results to govem-
ment were also commonly included. Although undeniably the control approach
was considerably more realistic than the blanket prohibitions it replaced, it also
represented a significant shift of the locus of decision-making in pollution mat-
ters –
a shift away from the courts and toward the bureaucracy. Responding to
the predominantly technical nature of pollution control, government officials
engaged in on-going communications with regulatees, negotiating abatement
plans, reacting to advances in technologies, plant expansions and new prob-
lems.9 Because the work of government environmental agencies frequently
overlapped with that of other agencies at the same and different levels of gov-
ernment, many informal administrative arrangements were entered into among
cooperating agencies in an effort to avoid duplication and enhance coordina-
tion.92 In effect, then, the “modem” control approach “drove pollution abate-
ment decisions underground into the quiet and less visible regulation and
licence-negotiating processes of government.” 93
In retrospect, it is clear that this initial wave of pollution control legislation
and administration marginalized the role of the citizen; rarely (if ever) was there
any mention of the public, let alone a clearly articulated role for the citizen in
the decision-making process. There were no requirements for public notice of
draft regulations, few duties to supply information to the public, infrequent obli-
gations to hold public hearings regarding proposed licences or Control Orders,
nor were there any express edicts to involve the public in enforcement. In fact,
the creation of such legislation tended to restrict or deny pre-existing common
law rights for private actions. 94
This lack of statutory recognition of a role for the public was probably
attributable not so much to a deliberate and malicious attempt to shut out the cit-
izenry as naive confidence on the part of legislators that government could man-
age things by itself. No doubt, at the time, many members of the public shared
that faith.95 After all, by the 1970s new departments of environment had been
91For examples of this, see case descriptions below.
92For illustrations of how these agreements work in practice, see case descriptions below. For
a more detailed discussion of the position of the pollution control bureaucrat, see K. Webb,
“Between Rocks and Hard Places: Bureaucrats, Law and Pollution Control” in R. Paehlke & D.
Torgerson, eds, Managing Leviathan: Environmental Politics and the Administrative State (Peter-
borough: Broadview Press, 1990) 201.
93Pollution Control in Canada, supra, note 18 at 15.
94D. Estrin, “Tokenism and Environmental Protection” in O.P. Dwivedi, ed., Protecting the Envi-
ronment: Issues and Choices – Canadian Perspectives (Vancouver: Copp Clark, 1974) 123 at 135.
950n the initial faith of conservationists in government experts, and their later realization of the
limitations of closed processes, see particularly R. Paehlke, “Democracy and Environmentalism:
Opening a Door to the Administrative State” in Paehlke & Torgerson, eds, supra, note 92, 35 at
38-42.
McGILL LAW JOURNAL
[Vol. 36
established at the federal level and in virtually every provincial jurisdiction in
the country: weren’t these agencies supposed to represent the public interest?
Even in the early years, some individuals and groups were cognizant of the
need for integretated citizen involvement in pollution control decision-making
(for example, formalized channels of input and public notice of actions) and
championed the cause of greater participation. In the United States, the notion
of administrative agency capture was well known in the 1960s. One of the first
books to seize the imagination of the public with its concern for the environ-
ment was Rachel Carson’s 1961 classic Silent Spring96 –
above all it was a plea
for citizen information and participation in environmental decisions.’ In 1971,
the Canadian Environmental Law Association and Research Foundation, in
their brief regarding the (then) proposed Ontario Environmental Protection Act,
warned Ontario legislators of the dangers of shutting out the public:
Far too often an over-worked bureaucracy develops a narrow single-mindedness
of purpose. It evolves into a working entente, with the persons subject to their reg-
ulation, that fosters a further narrowing of perspective. The probing of private cit-
izens, through public hearings and other actions, is the only cure for the normal
malaise affecting any administrative agency, regardless of its zeal, equanimity, or
devotion to responsibility. It is a fact of administrative life.98
As the cracks in the closed government-private sector modus operandi became
evident, the first reactions were, not surprisingly, angry criticisms levied by con-
cerned and affected persons shut out of the process. 99 Then came grudging (and
96Greenwich, Conn.: Fawcett, 1962.
97For example, Carson states as follows:
It is not my contention that chemical insecticides must never be used. I do contend that
we have put poisonous and biologically potent chemicals indiscriminately into the
hands of persons largely or wholly ignorant of their potentials for harm. We have sub-
jected enormous numbers of people to contact with these poisons, without their con-
sent, and often without their knowledge (ibid. at 22, emphasis added).
98Canadian Environmental Law Association, “Critique on Proposed Ontario Environmental Pro-
tection Act (Bill 94)” (July 1971) [unpublished] cited in Estrin, supra, note 94 at 127.
99For example, D. Estrin, “Annual Survey of Canadian Law Part 2: Environmental Law” (1975)
7 Ottawa L. Rev. 385 at 408, where he states:
The procedures for approval of new pollution sources … are also the subject of criti-
cisms. Again the general rule is that such applications are handled in a secret process
between the applicant and the agency. No notice of the application is given to other
industries or residents in the area, nor are they given, even if they are aware of it, any
legal right to meaningfully make their views known …
See also criticisms of the closed industry-government negotiations underlying the formulation
of the federal Pulp and Paper Effluent Regulations, C.R.C. 1978, c. 830, in D. Estrin & J. Swaigen,
Environment on Trial, 2d ed. (Toronto: Canadian Environmental Law Research Foundation, 1978)
at 271. See also Estrin’s discussion of lead smelter and charcoal cases in “The Legal and Admin-
istrative Management of Ontario’s Air Resources 1967-74″ in P Elder, ed., Environmental Man-
agement and Public Participation (Toronto: Canadian Environmental Law Research Foundation,
1975) 182.
1991]
TAKING MATTERS INTO THEIR OWN HANDS
limited) recognition by some governments and industry members of the need for
greater public involvement.”
It is evident, then, that the initial development of the pollution control
approach largely destroyed public confidence in the capabilities of government
to effectively administer and enforce the law. In its place, with good reason, the
public became distrustful and suspicious. Thus, the nineteenth century faith in
“leaving it to the experts” –
the initial justification for a diminished citizen
prosecution role –
had proven to be ill-founded. But while it was the private
prosecution mechanism which again began to be used, the motives underlying
its use had changed dramatically. Citizen enforcement action was not so much
a helpful supplement to modest government efforts (as it had been in pre-
nineteenth century England) as it was a control on suspect bureaucratic action
or inaction.
2.
Bringing Citizens In, Part 1: 1976 – 1986
Following the lead of the American National Environmental Policy Act,”
there began to be recognition in Canada of a functional distinction between the
initial approval process and on-going control of polluting industries.0 2 On the
approvals side, during the 1970s many Canadian jurisdictions started to require
that certain proponents undertake environmental impact assessments of their
projects before any construction could commence. 3 In theory, those proposed
projects which could have a significant environmental impact were subject to a
public hearing conducted by an independent tribunal.
With respect to regulation of on-going undertakings, administrative poli-
cies in more enlightened jurisdictions began to stipulate that citizens be pro-
vided (on request) with a modicum of information,” and be brought into
aspects of the decision-making process. Thus, for example, in 1981 in Ontario,
the Ministry of Environment (M.O.E.) announced a policy that most proposed
1See, e.g., comments of Inco officials who reported to an Ontario Standing Committee that,
“after the announcement of the new Control Order in July 1978, they had felt the negative effects
of what they perceived to be public misunderstanding and mistrust resulting from inadequate pub-
lic information about the Control Order process, rationale and contents” (Ontario Standing Com-
mittee on Resource Development, Final Report on Acidic Precipitation, Abatement of Emissions
From the International Nickel Company Operators at Sudbury, Pollution Control in the Pulp and
Paper Industry, and Pollution Abatement at the Reed Paper Mill in Dryden (October 1979) at 48).
101(1969) 83 Stat. 852, 42 U.S.C.A. s. 4321.
102As described in M.I. Jeffery, Environmental Approvals in Canada (Toronto: Butterworths,
1989).
103See generally D.P. Emond, Environmental Assessment Law in Canada (Toronto: Emond-
Montgomery, 1978) and ibid.
104P. Elder, “An Overview of the Participatory Environment in Canada” in Elder, ed., supra, note
99, 370 at 374, talks of a British Columbia “open file” and hearing policy in the mid-1970s.
REVUE DE DROIT DE McGILL
[Vol. 36
or new Control Orders must be open to public discussion.” Although these
public hearings only occur after the negotiations with industry have taken place,
M.O.E. officials maintain that comments received by the public have resulted
in significant changes to Control Order terms.'” At the level of enforcement, the
Ontario policy stipulates that where the M.O.E. decides not to prosecute it “will
make information regarding the pollution available to other parties upon
request, subject to constraints imposed by legislation.”‘” The difficulty remains
that it is up to the public to ascertain when an M.O.E. decision not to prosecute
has been made (i.e., a non-visible decision in many circumstances) and then to
request information concerning it.’
At the federal level, in 1981, the Department of Environment announced
the establishment of a Policy for Public Consultation and Information Availa-
bility,'” which was intended to ensure “regular and predictable””‘ opportunities
for the public to meet with department officials in order to discuss environmen-
tal issues and concerns, public comment on new regulations and guidelines,
information availability, and assistance for transportation costs to help quali-
fying groups attend designated meetings.”‘ In 1986, the federal Citizens’ Code
ofRegulatoty Fairness”‘ was introduced, which, among other things stated that
the citizen is entitled to know the government’s explicit policy and criteria for
exercising regulatory power in order to have a basis for “regulating the regula-
tors,” … government will encourage and facilitate a full opportunity for consulta-
tion and participation by Canadians in the federal regulatory process, [and] will
provide Canadians with adequate early notice of possible regulatory initiatives. “3
It could well be argued that these initiatives to involve and inform the pub-
lic were little more than rhetoric –
“mere” administrative policies, not well
publicized, not binding and easily changed or ignored. While these criticisms
have merit, there seems to be little doubt that they were forerunners of the latest
development –
statutorily entrenched rights to citizen participation in the pol-
lution control process.
10 5Ontario, Ministry of the Environment, Pollution Abatement Program: Development, Compli-
ance and Enforcement (Policy manual no. 05-02-07) (March 1981), s. 1.9. This policy is still in
effect.
10 6See R. Gibson, Control Orders and Industrial Pollution Abatement in Ontario (Toronto:
Canadian Environmental Research Foundation, 1983) at 56.
17Ontario, Ministry of the Environment (Policy manual no. 05-02-11), para. 3.2.3.
10 For further elaboration on this point and sugggestions for its improvement see part IV below.
1gEnvironment Canada, Policy for Public Consultation and Information Availability (Ottawa,
1981).
lation than on enforcement.
“0lbid. at 2.
“‘Ibid. at 1-2. The emphasis of this policy seems to be more on policy and regulation formu-
” 2Office of Privatization and Regulatory Affairs, The Citizens’ Code of Regulatory Fairness
113lbid.
(Ottawa, 1986).
1991]
TAKING MATTERS INTO THEIR OWN HANDS
3.
Bringing Citizens In, Part
: 1986 – 1990
In the late 1980s, two jurisdictions introduced new environmental protec-
tion legislation intended to entirely replace existing statutes: in 1987, Manitoba
passed the Environment Act,”‘ superceding the Clean Environment Act”5 and in
1988 the federal C.E.P.A. was passed. C.E.P.A. replaced the Envh’onmental Con-
taminants Act,'”6 the Ocean Dumping Control Act,”7 the Clean Air Act”‘ and
parts of various other statutes (e.g., Part III of the Canada Water Act’ ), as well
as adding entirely new provisions, most notably pertaining to toxic substances’ 20
and federal entities/undertakings.’
With both of the new statutes, explicit attention was paid to citizen infor-
mation and input. A brief examination of some of the public participation fea-
tures of the new Manitoba statute, with selected comparisons to its predecessor,
will serve to highlight the new legislative commitment to public involvement at
virtually all stages of the regulatory process.
Looking first at generalities, the Manitoba Clean Environment Act of 1972
included no general statement of objectives. Subsection 2 (1) of the new Envi-
ronment Act provides that the goals of the department are “to protect the quality
of the environment and environmental health … and to provide the opportunity
for all citizens to exercise influence over the quality of their living environment”
(emphasis added). While undoubtedly a statement such as this is largely an
empty platitude if there are no accompanying rights for citizens and binding
obligations imposed on government, it nevertheless represents heretofore
unheard of statutory recognition of the importance of public involvement in the
pollution control process.” In fact, the ebullient terms of this opening section
in the new Environment Act are an accurate foreshadowing of significant rights
provided to the public and concomitant obligations attaching to government
contained in subsequent sections of the Environment Act.
The Minister is given the power to “cause the preparation and production
of informational material respecting the environment … and make the material
“4S.M. 1987-88, c. 26, C.C.S.M. E125 [hereinafter Environment Act].
I”S.M. 1972, c. 76, C.C.S.M. C130 [hereinafter Clean Environment Act].
116 S.C. 1974-75-76, c. 72.
” 7S.C. 1974-75-76, c. 55.
“‘S.C. 1970-71-72, c. 47.
” 9R.S.C. 1970 (Ist Supp.), c. 5.
120 part II.
121part IV.
122Such statutory statements in favour of public involvement can be alluded to by citizens in
legal suits where members of the public are attempting to compel a government decision, obtain
information concerning a particular environmental situation, or engage in a direct enforcement
action against an alleged polluter.
McGILL LAW JOURNAL
[Vol. 36
available to the public.'””2 As this is not written in imperative language, this is
in itself not particularly significant except to the extent that once more the needs
of the public for information are made explicit. Within three years from the
coming into force of the Act, and at least every two years thereafter, the Min-
ister is obligated to prepare a “State of the Environment Report,” describing
Manitoba’s environmental quality, and activities related to present environmen-
tal issues as well as future issues, projected trends and environmental manage-
ment activities. 2a The requirement to prepare the report is in addition to the
standard duty to prepare an annual report.” The antecedent Clean Envhonment
Act contained no obligation comparable to the “State of the Environment
Report.” While there is still no guarantee that such a report will accurately and
forcefully portray the environmental realities in the province, it seems self-
evident that publication of this type of document will help to inform the public
and keep the government and private sector accountable.
The Environment Act sets out a three-tiered licensing system for polluting
activity. Because the class 1 development licence is intended to govern typical
industrial discharges, it will be the focus of discussion here. Pursuant to s. 10(1)
of the Environment Act, persons wishing a class 1 development licence must
submit a proposal. A summary of this proposal is filed on a central public reg-
istry, and notice of the proposal is made to the public through advertisements
in the local newspaper or radio. 6 These advertisements must notify the public
that an opportunity for comments and objections is provided.
Where objections are received, the director may recommend to the Minis-
ter that public hearings be held.
If the director decides against a recommen-
dation for a public hearing he must provide written reasons to the objector and
advise him that the decision can be appealed to the Minister. 8 Furthermore,
where the director refuses to issue a licence, he must provide written reasons for
the decision to the proponent, the Minister, and the central registry. 9 Where the
Minister has requested a public hearing, and subsequently advice and recom-
mendations are presented to the Minister, and the recommendations are not
adopted in the licence or refusal, the director shall provide written reasons for
the decision to the proponent, the Minister, the commission which held the pub-
lic hearing, and the central registry. 3 There are no comparable explicit public
participation provisions in the antecedent Clean Environment Act.
123Environment Act, s. 2(3)(a).
’24lbid., s. 6(1).
’25Ibid., s. 6(10).
1261bid., s. 10(4).
1271bid., s. 10(7).
1281bid.
‘ 291bid., s. 10(9).
130Ibid., s. 10(10).
1991]
TAKING MATTERS INTO THEIR OWN HANDS
In the absence of a specific procedure for objections such as that set out
for class 1 development licences, any person who is “affected” by the issuance
of a licence or permit, or refusal of same, or any order of the director, can appeal
to the Minister.’ Upon receipt of notice of the appeal, the Minister can require
a public hearing, refer the matter back to the Director for reconsideration, vary,
cancel or stay the decision appealed against, or dismiss the appeal.’32 Regardless
of his decision, he must serve notice of it upon the appellant within seven
days.’33 Where the appellant is dissatisfied with a decision of the Minister which
does not result in public hearings, he may appeal to the Lieutenant Governor in
Council.”3 The Lieutenant Governor in Council may require public hearings,
vary or cancel the licence appealed against, refer the matter back to the director
for reconsideration, or dismiss the appeal.’3 5 Again, there is nothing comparable
to this in the antecedent Clean Environment Act.
Except in emergencies,’36 in the formulation and substantive review of reg-
ulations incorporating environmental standards under the new Act, the Minister
is required to provide opportunity for public consultation and to seek advice and
recommendations regarding the proposed regulations or amendments. 37 The old
Clean Environment Act contained nothing similar to this requirement.
With respect to enforcement, any person may lay an information 3 ‘ in
respect of any offence, providing that it be laid within one year from the time
when the subject matter of the proceedings arose or from the day on which the
evidence came to the knowledge of the environment officer.’39 Clearly, the fact
that the time limitation comes into effect from the day on which the evidence
came to the knowledge of the environment officer would work against most pri-
vate prosecutors, who would presumably not be privy to that evidence unless
they themselves initiated the original complaint concerning the polluter, or the
information was otherwise made available.’
nature.”
1311bid., s. 27(1). The term “affected” is not defined in the Act or regulations.
1321bid., s. 27(2).
133Tbid.
1341bid., s. 28(l).
1351bid., s. 28(2).
136Defined by ibid., s. 41(2) as “circumstances considered by the Minister to be of an emergency
1371bid., s. 41(2).
138Indictable and summary conviction offence proceedings (with the exception of preferred
indictments under ss 574 and 577 of the Criminal Code) are initiated by laying an “information”
pursuant to ss 504 and 788 of the Criminal Code. Informants must have “reasonable grounds”
(s. 504) to believe that a person has committed an offence. However, they need not have witnessed
the events in question (see Bums, supra, note 5 at 274).
139Environment Act, ss 30-39.
140On this point, see discussion of British Columbia’s new quarterly “Non-Compliance Lists,”
infi-a, note 290 and accompanying text.
REVUE DE DROIT DE McGILL
[Vol. 36
The registry must include a summary of proposals for licences, a copy of
the licence, a copy of the assessment report prepared by the Director as part of
his decision regarding a licence, justification for not accepting the advice and
recommendations of the public hearing Commission (where applicable), and
such other information as the Minister or Director may from time to time
direct. “‘ In the absence of such a direction, it would appear that monitoring
reports will not be included in the registry.’42
Finally, it is interesting to note that the Minister has been given the power
to appoint an environmental mediator. 43 Short of the proviso that the “conflict-
ing parties concur'” 44 with the appointment, there is no indication in the legis-
lation as to when the services of a mediator would be called upon. It is sug-
gested that such a conflict resolution technique be used as an alternative
enforcement mechanism and perhaps even one where the initial call for enforce-
ment came from a citizen. However, this would only be possible in the right set
of circumstances and if it were read with the general obligation on the Depart-
ment to provide the opportunity for all citizens to exercise influence over the
quality of the environment.
While the foregoing description is far from comprehensive, it nevertheless
provides an indication of at least the appearance of a considerably more open
attitude toward citizen participation in the regulatory decision making process
than was previously evident. The Environment Act is far from perfect: among
other problems, there are no citizen “request-for-investigation” provisons, the
limitation period for prosecutions works against the private prosecutor, the
Department is not obliged to publish regular non-compliance reports, there is no
provision requiring the use of publicly disseminated Minister approved agree-
ments for intra- and inter-governmental administration and enforcement.
While these shortcomings are undeniable, it is clear that citizens are being
encouraged through legislation to participate in a process of which they have
long been distrustful and from which they have often been effectively excluded.
A right to participate is one thing, while meaningful participation may be quite
another. It is doubtful whether the legislation will amount to anything if it is not
accompanied by a sincere effort on the part of government officials to welcome
the citizen into the process. This entails the creation of publicly vetted compli-
ance and enforcement policies, the regular publication of compliance data, and
a willingness to adjust government actions to meet local concerns. Following
the case descriptions, this article will explore such implementation strategies.
14 1Environment Act, s. 17.
142According to conversations with Manitoba government officials, monitoring information will
generally be provided to citizens upon request unless it would impair the course of an investigation.
As a fallback, there is freedom of information legislation in Manitoba which could be resorted to.
143Environment Act, s. 3(3).
144Ibid.
1991]
TAKING MATTERS INTO THEIR OWN HANDS
D. Summary Observations
This brief examination of the public participation provisions in environ-
mental protection legislation suggests that there has been a significant evolution
in approaches to citizen involvement in the past thirty years. The initial pollu-
tion control legislation was silent as to the role of the public, but the problems
produced by letting the government and private sectors work without citizen
participation soon became apparent. The next step was administrative recogni-
tion (in enlightened jurisdictions) of the role of the public through notice and
comment procedures.
Finally, statutory integration of public participation in pollution control is
now taking place in some leading jurisdictions. If the experience with other pro-
gressive legislation such as freedom of information and human rights statutes is
any indication, once one Canadian jurisdiction has “taken the plunge” by estab-
lishing new, more rigourous standards, other jurisdictions will likely follow suit.
The Manitoba Environment Act and the federal C.E.PA. have taken the lead by
formally recognizing the important role played by citizens in the pollution con-
trol process. Draft legislation for Alberta seems to follow this lead.’45 Unless
there prove to be problems with this approach, it seems inevitable that the other
provinces will soon adopt similar provisions in their own legislation.
The situation facing a private prosecutor in 1991 is not, however, a prom-
ising one. Administration of pollution control regimes is still largely an
on-going technical liason between government and regulatees, enveloped in
informal intra- and inter-governmental agreements. There are few publicly dis-
seminated compliance and enforcement policies, and information concerning
the non-compliance of regulatees is not easily available. Thus, the citizen is still
outside the “inner circle” of decision-making, and still has solid grounds for sus-
picion and distrust of government actions.
Hm. Three Case Studies: The Pollution Control Approach in Practice
Discussion to this point suggests that governments are beginning to appre-
ciate the need for citizen involvement in environmental decision-making. In
some enlightened jurisdictions there seems to be recognition that the legitimacy
of government decisions is enhanced, and the likelihood of these decisions
being challenged is reduced, when there is early and meaningful citizen partic-
ipation. Usually, it is only when government fails to accomodate the concerns
of the public in the early stages that private prosecutions occur. As the following
145Alberta Environment, A Guide to the Proposed Environmental Protection and Enhancement
Legislation, Appendix “A” Discussion Draft of the Proposed Alberta Environmental Protection and
Enhancement Legislation (1990).
McGILL LAW JOURNAL
[Vol. 36
three case studies demonstrate, private prosecutions are initiated out of fear,
lack of understanding and frustration, in addition to genuine concern about the
environment. Private prosecutions are the cry of the disenfranchised.
The three prosecutions included here all involve proceedings under the
Fisheries Act,’46 and took place during the first half of the 1980s. The Fisheries
Act has become the private prosecutor’s vehicle of choice for a variety of rea-
sons. 47 First, the Act is national in scope, so that its provisions are applicable
in every region. Second, at the present time, it can be used in spite of existing
provincial legislation, 4 s and in spite of compliance with provincial standards.’49
Indeed, as we shall see, it can even be used when federal officials are satisfied
with provincial actions. 5 Third, penalties for breach of the Fisheries Act pol-
lution provisions are significant – higher than in some provincial legislation.’
Fourth, the Fisheries Act is binding on both the federal and provincial Crown,
thus permitting actions against both levels of government. Finally, regulations
passed pursuant to the Act entitle those who initiate or conduct prosecutions to
one half of any penalty imposed.152
These three actions have been chosen for their variety: the proceedings
take place in three different provincial jurisdictions, concern both spill and con-
tinuous pollution incidents and demonstrate both citizen-conducted and citizen-
146Now R.S.C. 1985, c. F-14 [hereinafter Fisheries Act].
4 7
1
In addition to the private prosecutions set out in the case descriptions below, the following
other Fisheries Act prosecutions initiated by citizens have been reported: R. v. Panarctic Oils Ltd.
(1983), 3 FP.R. 429, 12 C.E.L.R. 78 (Terr. Ct); R. v. Greater Vancouver Regional District and
Greater Vancouver Sewage and Drainage District (1981), 3 F.P.R. 134 (B.C. Prov. Ct); F.C. Bellas
v. A.G. British Columbia (sub nom. Re: Riley Creek) (1980), 3 F.P.R. 58 (B.C. Prov. Ct). In 1986,
a private prosecution with respect to Eldorado Mining Ltd. at Baker Lake Saskatchewan was
stayed. In 1988, a private prosecution in relation to a permit to construct under the Alberta Clean
Water Act, R.S.A. 1980, c. C-13 [hereinafter Clean Water Act] was stayed. In that same year, a
Fisheries Act private prosecution in relation to the Old Man Dam was stayed, and another concern-
ing the same Dam project was stayed in early 1990. Another action with respect to the same Dam
activity is currently active. Information concerning these actions obtained from Mr. John MacLat-
chy, federal Department of Environment, and Ms. Jillian Flett, Alberta Ministry of the
Environment.
148This is particularly significant for those jurisdictions where consent of the Attorney General
is required before private prosecutions can be entered: see, e.g., New Brunswick Clean Environ-
ment Act, R.S.N.B. 1973, s. 33.2, and Newfoundland Department of Environment Act, S.N. 1981,
s. 49 (consent of Minister required).
trol follows the case studies below.
149See, e.g., Cyanamid case description below at 803.
150Discussion of this characteristic of the current federal-provincial approach to emissions con-
151For example, penalties under the Fisheries Act, s. 40(2) for first offences are fines not to
exceed $50,000, whereas the comparable penalty under the Alberta Clean Water Act, s. 19 is only
$25,000.
152Penalties and Proceeds Forfeitures Regulations, C.R.C. 1978, c. 827 [hereinafter Forfeitures
Regulations].
1991]
TAKING MATTERS INTO THEIR OWN HANDS
initiated litigation. All three illustrate the range of obstacles which face citizens
wishing to initiate actions against perceived industrial emission polluters and
the range of governmental reactions to such proceedings.
A. R. ex rel. Howe v. Cyanamid Inc. ’53
Over the period of 1976 through 1980, Michael Dickman, an associate pro-
fessor of biology at Brock University, with the assistance of some of his stu-
dents, monitored the effluent deposited into the Welland River by Cyanamid
Canada of Niagara Falls, Ontario. The Cyanamid plant manufactures chemical
fertilizers. The results of Dickman’s monitoring efforts indicated that Cyanamid
was discharging substances which were highly toxic to fish into the Welland
River. Dickman learned that Cyanamid was the subject of a Control Order
issued under the provincial Environmental Protection Act.’54 The terms of the
Control Order permitted Cyanamid to discharge air and water pollution until
1984, as long as specified improvements and additions to the plant’s pollution
control equipment were introduced at various dates in the interim.
In 1979, Dickman contacted officials of the provincial Ministry of Envi-
ronment (M.O.E.) and expressed his concerns with respect to the toxic dis-
charge. In a letter to the Director of Legal Services of the M.O.E. dated Febru-
ary 27, 1979, Dickman concludes: “I feel that I lack the legal experience to
pursue this much further and I’m seeking your advice re a vehicle for
pursuance.”
In reply to this letter, the Director of Legal Services of the M.O.E. pointed
out that Cyanamid was in compliance with the terms of the Control Order, and
that, by what was then ss. 102(2) of the E.P.A., compliance with a Control Order
renders an operation virtually immune from prosecution under that Act. The
Director also noted that prosecution of Cyanamid by the M.O.E. under another
statute, be it provincial (for example, the Ontario Water Resources Act’55) or
federal (for example, the Fisheries Act), in the absence of some new develop-
ment or indication of bad faith on the part of Cyanamid, would detrimentally
affect the credibility of the M.O.E. However, in closing, the Director added “[i]t
may be that these considerations would not be serious obstacles to yourself or
some private prosecutor taking action under the Fisheries Act.”‘ 56
153Information for this case description was obtained from the Canadian Environmental Law
Association and Department of Environment files, newspaper accounts (as noted infra), a tele-
phone conversation with Dr. Brockman, and the case decision, supra, note 4. An earlier version
of this case description appeared in K. Webb, Industrial Water Pollution Control and the Environ-
mental Protection Service, Law Reform Commission of Canada Background Study (1983) [unpub-
lished] [hereinafter Industrial Water Pollution].
’54R.S.O. 1980, c. 141 [hereinafter E.PA.].
155R.S.O. 1980, c. 361.
15 6Letter from Mr. Neil Mulvaney, Director of Legal Services Branch, Ontario Ministry of Envi-
ronment, to Professor M. Dickman, dated April 10, 1979.
REVUE DE DROIT DE McGILL
[Vol. 36
In 1980, Dickman, in conjunction with a local environmental group, Oper-
ation Clean, and the Canadian Environmental Law Association (C.E.L.A.),
began preparations in earnest for a Fisheries Act prosecution. Officials from the
Ontario Ministries of Environment and Natural Resources were contacted. They
confirmed that the Ontario position had not changed from that expressed in the
1979 letter to Dickman from the Director of Legal Services of the M.O.E. 57
The federal Departments of Environment (D.O.E.) and Fisheries and
Oceans were also contacted. Officials from the D.O.E. provided the Dickman
group with technical advice on how to successfully prosecute under s. 33(2) of
the Fisheries Act. However, the D.O.E. itself declined to conduct the actual
prosecution against Cyanamid. The Honourable John Roberts, speaking for the
D.O.E., replied:
I understand that the Cyanamid Company (Welland Plant) has so far been in com-
pliance with the water pollution control requirements outlined in the Ontario Min-
istry of the Environment Control Order. While I recognize the current problem
with fish toxicity at the Cyanamid plant, the Control Order does specify future
requirements for the complete installation of control measures to achieve the
Ministry’s objectives for fish toxicity and other parameters. Therefore, in this par-
ticular instance, we accept the Ministry of the Environment Control Order issued
under provincial legislation as being a satisfactory means of achieving our objec-
tives. My officials and I do not believe that there is anything to be gained through
unilateral legal action against the company or further bioassay tests by the Depart-
ment.
158
Finally, on March 23, 1981, Margherita Howe, head of Operation Clean,
laid an information against Cyanimid, alleging that the company discharged
substances deleterious to fish into Welland River contrary to the terms of the
Fisheries Act ss. 33(2) (as it then was). The case was closely followed by the
press from the time of the laying of the information through to the court’s ver-
dict. 5 9
At trial, Wallace J., noted that “[t]he charge is a private complaint, Federal
Justice and/or Fisheries authorities having declined an invitation to prose-
cute.””
157Letter from the Honourable James Auld, Ontario Minister of Natural Resources, dated
December 19, 1980; Letter from the Honourable Harry Parrot, Ontario Minister of Environment,
to Mr. Robert Timberg, Counsel for C.E.L.A., dated January 5, 1981.
158Letter from the Honourable John Roberts, federal Minister of Environment, to Mr. Robert
Timberg, C.E.L.A., dated January 5, 1981.
159E.g. see “Chemical Producer Charged By Biologist” The [Toronto] Globe and Mail (3 March
1981) A5; “Trout Die in Discharge From Plant, Court told” The [Toronto] Globe and Mail (24 June
1981) A2; “Firm is fined $1 for pollution, given a month to pay by the judge” Tile [Toronto] Globe
and Mail (29 August 1981) A12.
160Supra, note 4 at 152.
1991]
TAKING MATTERS INTO THEIR OWN HANDS
Wallace J. observed that the only fish in the canal are catfish, “a scavenger
fish not prized by sport fishermen… 6 He also noted that the Welland river sys-
tem empties into the Ontario Hydro generating plants and turbines, so that
“[a]ny fish finding their way into the hydro canal system are doomed.”’62
Dickman conducted the toxicity tests for the prosecution and provided
expert testimony regarding the effluent at trial. The prosecutor’s cause was also
furthered by the testimony of an Ontario M.O.E. toxicity scientist. Wallace J.
noted that tests using rainbow trout placed in the effluent revealed that “[w]ithin
51 seconds all fish placed in the aquariums containing effluent were dead. All
of the fish in the aquariums containing Welland River water lived for many
hours.”’63
In his summary of the facts of the case, Wallace J. made the following
observations which foreshadowed his eventual decision:
The effluent in issue was being deposited into the Welland River under the
watchful eyes of Ontario environmental authorities. These authorities … had spent
more than a year in attendance daily at the Cyanamid factory studying the Cyan-
amid production processes and preparing an engineering emission study with
respect to both air pollution and water pollution. These authorities had complete
cooperation and assistance from Cyanamid executives at all times.
The efforts of the Ontario environmental authorities culminated with their
issuing … a Control Order, directing and ordering Cyanamid to install certain pol-
lution control equipment by certain dates set out in the Control Order. Certain of
the equipment was to be installed during the first year of the order, certain of it
to be installed in the second year of the Order and so on until the year 1984, by
which time all equipment would be in place.
The Ontario authorities therefore, set up a schedule of priorities concerning
pollution control. They gave higher priority to air pollution control than to water
pollution control, presumably on the basis that air pollution affecting thousands of
citizens was of higher priority than water pollution affecting a handful of catfish.
The cost to Cyanamid by the conclusion of the program in 1984 will be about
20 million dollars. Nine million dollars has been spent by Cyanamid up to the end
of 1980. … All equipment has been installed on time and Cyanamid is not in
default under the pollution Control Order.
At all times the Ontario pollution control and authorities [sic] have monitored
the progress of Cyanamid. At all times the cooperation of Cyanamid with these
authorities has been exemplary.
Some difficulty has been encountered with respect to the installation of
equipment … There was a delay to permit the necessary technology to be devel-
oped. Then some processes considered were found unsuitable because they would
not function in cold weather….
Because of the provisions of … The Environmental Protection Act, … and
because Cyanamid Canada Inc. is not in default under the provisons of the Control
1611bid.
162Ibid.
1631bid. at 153.
McGILL LAW JOURNAL
[Vol. 36
64
Order … Cyanamid … cannot be prosecuted under the provisions of the said …
Act.’
Counsel for Cyanamid raised three defences: first, that the prosecution had
failed to prove the actus reus of the offence beyond a reasonable doubt; second,
that the Fisheries Act pollution offence applies only to commercial waters; and
third, that the company had exercised due diligence.’ 65 With respect to the actus
reus contention, although there were some weaknesses in the evidence of the
prosecution,”6 the court held that there was proof beyond a reasonable doubt. 67
On the basis of several cases and dictionary definitions, Wallace J. held that the
Fisheries Act pollution offence applied to the protection of the entire natural
resource of the fishery, not merely commercial fisheries as maintained by the
counsel of the defence. 68
Wallace J. then considered the defence of due diligence. The defence had
a district engineer with the Ontario Ministry of Environment testify that the
company was complying with the provincial Control Order and that the control
program would cost Cyanamid about $20 million when completed in 1984.
Nevertheless, Wallace J. rejected the defence in the following manner:
It appears to this Court to be obvious that the due diligence to be established
must be referable to the specific offence before the court. The test is whether
Cyanamid did all that a reasonable corporation would have done in the circum-
stances and took all reasonable steps to avoid the outflow of ammonia effluent
from its factory into the Welland River on March 23rd, 1981.
The evidence discloses and I find that Cyanamid has done all that a reason-
able corporation would have done in the circumstances and has taken all reason-
able steps to avoid the outflow of ammonia effluent from its factory into the Wel-
land River as of the year 1984 when all processes required by the Control Order
of February 10th, 1978, have been installed and are operational.
I find, however, that due diligence to prevent an offence in 1984 is not an
answer to an offence to have occurred on March 23rd, 1981 (emphasis added). 69
Wallace J. found Cyanamid guilty as charged. He added the following
comment:
I appreciate the fact that it would have created a tremendous financial burden upon
the accused corporation to have closed and sealed the pipe on or before March
23rd, 1981, and it may have required that the Cyanamid factory be shut down and
that many jobs be lost. These factors, however, do not relate to the issue of guilt
or innocence with respect to the charge before this Court. They are mitigating fac-
tors which will be weighed by this Court in the imposition of sentence. 70
164Ibid. at 153-54.
165Ibid. at 154.
166Most notably a lack of chemical analysis, so that there was no conclusive evidence of ammo-
nia in the effluent other than a notable odour detected at the time. Ibid.
’67Ibid. at 157.
‘6sIbid. at 158.
1691bid. at 159.
170 bid.
1991)
TAKING MATTERS INTO THEIR OWN HANDS
He then considered sentencing, and began by enumerating eleven “mitiga-
ting circumstances which are to the benefit of Cyanamid..’ 7′ These included the
poor quality of fish in the Welland River, the fact that there was no evidence of
a fish kill in the Welland River because of the Cyanamid effluent and no evi-
dence of deterioration of the water because of the ammonia effluent, the com-
pliance of Cyanamid with the Ontario Control Order, the approval of Ontario
officials of Cyanamid’s activities, the excellent cooperation with Ontario offi-
cials, the substantial financial commitment of Cyanamid to abatement, and the
fact that shutting off the pipe would cause a loss of jobs and severe financial
consequences to Cyanamid. 7 ‘
Wallace J. concluded by saying “I trust that the penalty that I am about to
impose will reflect where I consider this case rests on any scale of severity,” he
then levied a penalty of one dollar with one month to pay.’73 Subsequently,
Cyanamid installed a $23 million ammonia waste treatment plant. 174
B. R. v. Crown Zellerbach Properties Ltd. 75
From March 1977 through January 1980, Crown Zellerbach Properties
Ltd. of British Columbia and its associates (Crown Zellerbach) were engaged in
a landfill operation on a site which had two creeks flowing through it. The
creeks eventually emptied into the Fraser River. On February 11, 1977, Crown
Zellerbach applied for what was then called a pollution discharge permit from
what was then known as the British Columbia Pollution Control Board (P.C.B.).
The P.C.B. referred the application to federal D.O.E. officials for comment, as
was the agreed upon practice, and on October 17, 1977 the P.C.B. permit was
granted. The interactions between P.C.B. and D.O.E. officials with respect to the
landfill operations from 1977 to 1980 indicate continuous friction between the
two authorities, with the D.O.E. desirous of stricter terms and stricter enforce-
ment by P.C.B. (the lead agency).
While it is quite evident that the D.O.E. was not satisfied with the enforce-
ment efforts of the P.C.B., there is no available information suggesting that the
D.O.E. intended to prosecute on its own. In 1980, a federal official privately
assisted a citizen, David Aldcroft, with the gathering of samples for a prosecu-
17’Ibid. at 160.
1721bid. at 160-61.
171bid. at 161.
174Telephone conversation with Prof. Dickman, October 9, 1990.
175Supra, note 4. Information concerning Crown Zellerbach derived from federal Department of
Environment files, L. Kolankiewicz, Implementation of B.C.’s Pollution Control Act in the Lower
Fraser River (M.Sc. Thesis, Faculty of Graduate Studies, School of Community and Regional
Planning, University of British Columbia, 1981) [unpublished], and telephone conversations with
federal officials. An earlier version of this case description was included in Industrial Water Pol-
lution, supra, note 153.
REVUE DE DROIT DE McGILL
[Vol. 36
tion. Aldcroft was a member of the environmental group the Fraser River Coa-
lition. He laid an information against Crown Zellerbach, alleging breach of s.
33(2) of the Fisheries Act (as it then was).
As in the Cyanamid situation, the local media took a strong interest in the
action: Aldcroft told a reporter that he laid the charges “to shame the federal
government into acting.”’76 In fact, agents of the federal Department of Justice
actually conducted the prosecution. At trial, Groberman J. took full cognizance
of the P.C.B.-D.O.E. referral system, and noted that D.O.E. concerns were not
being fully met by the P.C.B. enforcement actions.’
Expert testimony from D.O.E. personnel played an integral role in the
eventual findings of the Court. Crown Zellerbach raised a defence of due dili-
gence, claiming that it was conforming with the terms of a provincial discharge
permit, which had itself received federal input. Groberman J. rejected the due
diligence defence:
Vendev [an associate of Crown Zellerbach] did respond to problems raised by
the Pollution Control Branch but did not carry out a sufficient site inspection
which, in my opinion, is a serious flaw in the system.
I am also mindful of the differing opinions expressed between the Provincial
Pollution Control Branch and the Federal Environmental Protection Services.
However, they both agreed, “No leachates”. 178
Two of the four corporate members of the Crown Zellerbach landfill oper-
ation were found guilty as charged, and fined a total of $28,000. Pursuant to the
Fisheries Act Foifeitures Regulations, Aldcroft received one half of this penalty
($14,000). At the conclusion of the trial, Aldcroft announced his intention to
“sink the money into further prosecutions against polluting industry, individuals
or municipalities.”’79
The problems with Crown Zellerbach did not end with the private prose-
cutions. In 1981, the federal Department of Fisheries and Oceans brought sev-
eral more charges against the company. 8 ‘ The Provincial Court held that Crown
Zellerbach had acted with due diligence by cooperating with authorities, setting
up a regular inspection process, and attempting to contain the leachate.1” The
Court held that there were no leachate solutions available prior to the spring of
1982, at which time the company installed power aeration units costing
$250,000 which solved the problem.’82
176S. Fournier, “River Crusader wins $14,000” The Province (30 April 1981) 1.
177Crown Zellerbach, supra, note 4 at 105.
178bid.
179Foumier, supra, note 176.
180R. v. Crown Zellerbach Properties Ltd. (1984), 4 F.P.R. 117.
8’Ibid. at 127.
’82Ibid. at 125.
1991]
TAKING MATTERS INTO THEIR OWN HANDS
C. R. v. Suncor Inc. 8 3
In 1964, the Great Canadian Oil Sands Company (G.C.O.S.) began con-
struction of a plant for the extraction and commercial recovery of oil from the
Athabasca tar sands. Located at Tar Island, some thirty five miles north of Fort
McMurray in northern Alberta, the facility commenced operation in 1967, the
first of its kind. Later, G.C.O.S. amalgamated with Sun Oil to form Suncor.&4
As part of plant operations leading to the extraction of oil, the facility uses
large volumes of water from the Athabasca river, and eventually, through a
wastewater system, liquid effluent is deposited back into the river. The plant
itself is massive, occupying 7500 acres, designed to produce 58,000 barrels of
oil a day. It employed over 1700 persons at the time of the prosecutions under
study here.’ The wastewater pond alone is 45 acres.’86 Because oil sands them-
selves are unique, in turn the methods and technology used to extract oil have
been distinctive, and defy comparison with traditional extraction and refinery
techniques. One judge who viewed the plant facilities said the following:
After completing this [tour of the plant] I could not help but be struck by the mag-
nitude and complexity of this facility which consists of a mining operation and
extraction plant, a refinery and a power generator and steam generator plant, and
one becomes totally aware of the tremendous amount of materials that are required
to be handled under high temperature and high pressures in all kinds of weather
conditions and it was thereafter much easier to conceptualize the difficulties faced
by Suncor in pioneering these methods and in applying this new technology to oil
sands extraction. 1
7
The only other major oil sands recovery operation, Syncrude, came on
stream in the 1970s, years after the original G.C.O.S. facility had been con-
structed, and uses what is known as a “closed water system” which apparently
avoids many of the effluent problems associated with the G.C.O.S./Suncor facil-
ity.’ While the federal government has developed regulations under the Fish-
1
83Infornation for Suncor case study was derived from federal Department of Environment files,
three reported decisions (R. v. Suncor Inc. (1982), 3 RR. 264 (Alta. Prov. Ct) [hereinafter Suncor
1982], R. v. Suncor Inc. (1983), 3 F.P.R. 270 (Alta. Prov. Ct) [hereinafter Suncor 1983] and R. v.
Suncor Inc. (1985), 4 F.P.R. 409 (Alta. Prov. Ct [hereinafter Suncor 1985]) and Environmental
Law Centre, Enforcement of Environmental Law in Alberta: A Critical Examination of Alberta
Government Law, Policy and Practice with Illustration from the Case R. v. Suncor Inc. (Edmonton:
Environmental Law Centre, Alberta Law Foundation, 1983) [hereinafter E.L.C.].
184Suucor 1985, ibid. at 411.
’85Suncor 1983, supra, note 183 at 274.
186Suncor 1985, supra, note 183 at 413.
1871bid. at 415.
188Suncor 1983, supra, note 183 at 295. Horricks, Prov. Ct. J., stated:
It [Suncor] was the first one of its type, and clearly it suffers from defects of design
with respect to the treatment of wastewater that would not be permitted now in the light
of experience and indeed as we are aware, because it appeared in the evidence, the only
McGILL LAW JOURNAL
[Vol. 36
eries Act for the discharge of effluent from conventional refineries,” 9 none have
been forthcoming for oil sands recovery plants. 90
The Fort McKay Indian Band is located downstream from the Suncor
plant, ‘9 as is a fish plant.’92 Lake Athabasca, also downstream, supports com-
mercial fishing.’93 The Chief of the Fort McKay Indians, Dorothy Mary McDon-
ald, is reported to have said, “Our problems began in 1967 when Suncor opened.
We’ve had to stop using river water that we have used for generations. Our
babies especially started getting sick.”’94 In 1978, permission was granted by the
Alberta government for a major expansion of the plant, scheduled for comple-
tion in 1981. While there have been many water pollution problems at the
G.C.O.S./Suncor plant since its inception,’95 the focus of discussion here will be
on the period beginning immediately prior to the laying of charges in February
and March, 1982.
Although both federal and provincial governments have jurisdiction (and
legislation) to control water pollution, in Alberta and across the country it is
provincial officials who play the lead role.’96 During the time period under con-
sideration here, the main regulatory tool pertaining to Suncor’s wastewater
effluent was the provincial Clean Water Act,’97 and more specifically, a licence
to operate issued pursuant to that legislation. The Alberta Ministry of Environ-
ment had (and continues to have) the lead responsibility with respect to pollu-
tion matters, although, as we shall see, provincial Ministry of Public Lands and
Wildlife’ officials in the Fish and Wildlife division and Energy Resources Con-
servation Board officials in the Ministry of Energy also participate in
environment-related decisions. Provincial Fish and Wildlife officials have been
appointed fisheries officers under the federal Fisheries Act. 9 ‘
other oil sands recovery Plant, being Syncrude works on a closed water system, but
then everybody by then perhaps had smartened up about what was necessary.
189Petroleum Refinery Liquid Effluent Regulations, C.R.C. 1978, c. 828.
190Horricks, Prov. Ct. J. in Suncor 1983, supra, note 183 at 295: “[I]n fifteen years the people
responsible for producing regulations for Plants have not seen fit to produce regulations for Plants
of this nature and it’s a factor I take into account.”
191See M. Dent, “Will Prosecutor Be Ready at Suncor Trial?” Fort McMurray Today (21 January
1983) 5.
‘ 92Suncor 1985, supra, note 183 at 420.
193Dent, supra, note 191.
194Ibid.
195E.g., apparently, a similar wastewater problem to the 1982 discharges under consideration in
this case study occurred as early as the winter of 1967-1968 (see Suncor 1985, supra, note 183
at 472), and there were proceedings under the Fisheries Act in 1977 and 1978 concerning a deposit
unlike the 1982 situation (supra at 431).
196In place at the time was the Canada-Alberta Accord for the Protection and Enhancement of
Environmental Quality, Alta. Reg. 87/75.
197Supra, note 151.
198E.L.C., supra, note 183 at 57.
1991]
TAKING MATTERS INTO THEIR OWN HANDS
Expansion of the plant was authorized in 1978 by a Clean Water Act
licence, which was subsequently amended in November, 1980 to include further
reporting requirements. 99 For the whole of 1981, Suncor experienced many
serious operational problems which the plant associated with the completion of
the expansion in that year.2’9 Records submitted by Suncor pursuant to its
licence of operation indicate that in all but one month in 1981, oil and grease
emissions were above permitted levels. 2 ‘ According to one report, Alberta
Environment officals were aware of problems with the release of water contam-
inants since June 1981, but apparently had not required any specific studies or
followup action by Suncor at that time.2′ 2
In November 1981, Alberta Environment officals met with Suncor repre-
sentatives and requested that the company investigate certain matters and report
back to the department.2″3 In December, 1981 and again in January, 1982, the
plant was hit by a series of fires and explosions, which caused significant dam-
It was evident following a
age and forced shutdowns of some processes.’
major fire on the wastewater pond on January 21, 1981, that a large amount of
oil had escaped from the plant into the water pond.2 5 Suncor attempted to clean
up this oil using vacuum trucks for several weeks after the fire.2’9
One report indicates that a meeting took place between Suncor and Alberta
Environment on January 26, 1982, but that prior to that time “the company
showed no concern for the safety of downstream users of the Athabasca
River.’ 20 7 As a result of that meeting, Suncor was ordered to warn the Fort
McKay Indian Band.20 ‘ Nevertheless, as we shall see, the Fort McKay Indian
Band was not notified until late February.
While records kept by Suncor indicated substantial increases in effluent
starting on February 9,209 company employees showed no “particular con-
cern. ”2′ 0 An external habitat biologist flying over the site between February 12
and 15 observed “orange substances” on the ice beside the Suncor plant, and on
February 15 notified a Fish and Wildlife officer who attended the site on Feb-
ruary 16, and contacted the water quality manager from Suncor. The two men
observed excessive oil in the wastewater pond and a sheen of oil in the river.2″
’99Suncor 1985, supra, note 183 at 414.
200Suncor 1983, supra, note 183 at 278.
20’Jbid.
202E.L.C., supra, note 183 at 45; see also Suncor 1985, supra, note 183 at 419.
203E.L.C., ibid. at 19-20.
24Suncor 1985, supra, note 183 at 415.
2051bid.
2061bid. at 416.
2E.L.C., supra, note 183 at 53.
208Dent, supra, note 191.
209Suncor 1985, supra, note 183 at 416.
2101bid. at 418.
2111bid.
REVUE DE DROIT DE McGILL
[Vol.-36
On February 17 and March 9 samples were taken by the Fish and Wildlife offi-
cer.212
On February 18, an official from the Energy Resources Conservation
Board inspected the site and suggested remedial measures to Suncor or contract
employees of Suncor. 1 3 Members of the Fort McKay Indian Band were not
informed of the situation until February 24.’ On February 25, Alberta Environ-
ment officials issued a Water Quality Control Order with respect to Suncor’s
problems.1 5 On February 26, Chief McDonald laid five separate informations,
alleging breaches of s. 33(2) of the Fisheries Act between February 21 and 25,
1982.216 Chief McDonald testified that band members began complaining of
mouth sores, diarrhea and headaches while drinking melted river ice during Jan-
uary and February.2″7 Following this, the Alberta Attorney General’s office laid
an additional fifteen charges under the Fisheries Act and two others under the
Clean Water Act.21
The first actions to reach the court were with respect to the Clean Water
Act, for exceeding licence effluent limits for the period February 20 through 24,
1982, and failing to report the incident to Alberta Environment on or about Feb-
ruary 21, 1982. With respect to the charge of exceeding the licence limits, Sun-
cor raised a due diligence defence, maintaining that the fires and explosions of
December 1981 and January 1982 were disasters not caused by their negligence,
that the disasters occurred during the worst winter in twenty-five years, and that
they had acted reasonably in the circumstances. 219 Because there was no sugges-
tion by the Crown that the disasters were caused by negligence (i.e., the due dil-
igence defence was not challenged by the Crown), the Court accepted the due
diligence defence.’ The company was, however, found guilty of failing to
report, and a fine of $500.00 was levied.22′
The lack of challenge to the due diligence defence, and failure on the part
of the Attorney General to appeal the verdict was to haunt the Crown in subse-
quent proceedings. The next set of informations to be decided upon by the Court
were those Fisheries Act charges initiated by Chief McDonald. The Attorney
General of Alberta assumed responsibility for conducting the case. Shortly after
2 121bid”
2 13Suncor 1983, supra, note 183 at 294.
214E.L.C., supra, note 183 at 53.
2 15Suncor 1985, supra, note 183 at 420.
2 16Suncor 1983, supra, note 183 at 271.
2 1T7Dent, supra, note 191. But, the same article goes on to note that under cross-examination,
McDonald admitted she had no proof that it was Suncor effluent which made members of the band
sick.2 18″Suncor trial moved” Fort McMurray Today (14 July 1983) 9.
2 19Suncor 1982, supra, note 183 at 267.
2 20Suncor 1983, supra, note 183 at 271.
2 2 Suncor 1982, supra, note 183 at 268.
1991]
TAKING MATTERS INTO THEIR OWN HANDS
proceedings began, the original Crown prosecutor became “emotionally and
mentally prostrated and was unable to continue with the Trial.” ‘222 A long delay
followed (the defence unsucessfully made an application for relief on the
grounds of s. 11(b) of the Charter), after which the Court dismissed four out of
five charges on grounds of issue estoppel. The Court ruled that since the Fish-
eries Act deleterious deposit and Clean Water Act licence contravention charges
overlapped for all but one day, and since the Court had already found that due
diligence had been exercised with respect to the Clean Water Act contraven-
tions, it would lead to inconsistent verdicts for the court to find Suncor guilty
under the Fisheries Act for those overlapping days.2″
However, as there was no overlap between the Clean Water Act verdicts
and the February 25 Fisheries Act charge, the Court proceeded to consider this
charge. After considering extremely technical arguments concerning, (1) the
inaccuracy of measuring techniques used by the accused Suncor in its effluent
reports which were relied upon by the Crown in its case (it was held that the
inaccuracies were not significant 224); (2) whether the emissions were deleterious
(the oil and grease concentrations were held to be “capable of giving rise to sub-
lethal effects in fish” and therefore deleterious2″); and (3) a due diligence
defence (hiring of an inexperienced official to clean up oil spills, failure on the
part of the company to properly react to inspector’s warnings 226), Suncor was
found guilty. In sentencing, the Court made several strong criticisms concerning
the response of govenment to Suncor’s situation. First, that “the people respon-
sible for producing regulations for Plants have not seen fit to produce regula-
tions for Plants of this nature and it’s a factor I take into account. ‘227 Second,
the Court took into account the fact that Suncor had been exceeding permitted
limits on numerous occasions and that
this seems to have taken place without causing any excitement in the authorities
who were supposed to look after this and, you know, if the watchdogs aren’t going
to get worried, it is a little difficult to see why the company should get excessively
worried in those circumstances.m
A fine of $8,000 was imposed.2 Proceedings had begun on October 21,
1982, but, because of problems with the prosecutor and the “complicated and
222Suncor 1983, supra, note 183 at 271.
2231bid. at 273. This finding is questionable, because the nature of the offence in the case of the
is potentially broader than that of exceeding
depositing deleterious substances –
Fisheries Act –
specific licence terms under the Alberta licence.
m’4Ibid at 287.
2251bid. at 292.
2261bid. at 294.
2271bid. at 295. This presumably alludes to the fact that there are federal regulations for conven-
tional petroleum refineries, but not oil sands extraction and recovery facilities.
228lbid.
2291bid. at 296.
McGILL LAW JOURNAL
[Vol. 36
technical nature of the proceedings,”‘
3, 1983.
the verdict was not delivered until June
On October 17, 1983, the Provincial Court commenced hearings concern-
ing two other alleged deposits of substances deleterious to fish contrary to s.
33(2) of the Fisheries Act, occurring February 17, 1982 (i.e., before the other
already decided upon charges) and March 9, 1982. The informations had been
laid by officials from the Ministry of Fish and Wildlife, not private citizens;
however, they were initiated after charges had been brought by the Fort McKay
Indian Band concerning the same situation. As with the previous proceedings,
the trial was extremely lengthy and convoluted. There were some 49 witnesses
called, many of whom were expert. The trial lasted 76 court days, with final
supplementary written argument from the Crown being submitted on March 26,
1985, and the decision being rendered May 25, 1985. The court waded through
evidence and arguments concerning the legal definition of “deleterious to fish,”
the actual deleteriousness of the deposits, the correct testing procedures and
constitutional arguments.”‘ Eventually, Suncor was found guilty on both counts,
and a total fine of $30,000 was levied.
Total prosecution costs for the February and March, 1982 incidents at Sun-
cor have been estimated to be several million dollars.232 In March, 1982, the
wastewater system was altered and upgraded with considerable success. 33 The
real impact of the Suncor trials, however, appears to have been on the Alberta
Ministry of Environment. Following the trials, in 1987, Alberta Environment
established a Review Panel on Environmental Law Enforcement which reported
in January, 1988. Among other things, the Panel recommended promulgation of
a government approved, publicly reviewed enforcement policy outlining
detailed criteria for enforcement responses, and the creation of an environmen-
tal enforcement unit. The Review Panel also recommended changes in the leg-
islation which would improve administrative and court powers to respond to
pollution incidents, and place new responsibilities on polluters.’
In 1988, the Pollution Control Division was reorganized, with two
branches, one responsible for investigating complaints and responding to emer-
230lbid. at 270.
231The Court relied on the Supreme Court of Canada decision Northwest Falling Contractors
Ltd. v. R., [1980] 2 S.C.R. 292,53 C.C.C. (2d) 353 upholding the validity ofs. 33(2) (Suncor 1985,
supra, note 183 at 432). The Court also upheld the reliability of the measurements made by Suncor,
and rejected the due diligence defence (supra at 474).
232See comments of E. Kupchanko, Assistant Deputy Minister of the Alberta Environment
Department, as reported in “Prosecuting Polluters is Effective Strategy, Ministry Lawyer Says” The
[Toronto] Globe and Mail (24 May 1984) A13.
233Suncor 1985, supra, note 183 at 471.
234Review Panel on Environmental Law Enforcement, An Action Plan for Environmental Law
Enforcement in Alberta (1988).
1991]
TAKING MATTERS INTO THEIR OWN HANDS
gencies (the Investigation Branch), the other responsible for reviewing draft
licences and making decisions on correct compliance responses (the Compli-
ance Branch). 5 Negotiation no longer takes place at the enforcement stage
regarding, for example, the type of enforcement or whether there should be an
enforcement response. 6 In 1990, new draft legislation was announced which
followed many of the Review Panel’s recommendations,237 and a formal
enforcement policy is currently being drafted;”8 in the meantime, officials
maintain that they are following the general approach contained in the Action
Plan. 9 Several private prosecutions have been attempted since the Suncor inci-
dent, but have been stayed or are still under consideration at the time of writ-
ing.
240
D. Analysis
It would be impossible to assert that these three case studies of private
prosecutions are in some way typical or indicative of the range of outcomes and
issues which arise when citizens take matters into their own hands. Neverthe-
less, they do illustrate many of the problems which face private prosecutors: the
attitudes of courts in such cases, the technical nature of many pollution inci-
dents, and the extent of inter- and intra-govemmental, as well as government-
regulatee, interactions. For this reason, these cases. provide a factual backdrop
for the analysis which will follow.
A first and self-evident observation that emerges from the case studies is
that private prosecutions can be successful. Obviously, however, “success” is a
relative term. There are a host of possible criteria for determination of a success-
ful prosecution. These include convictions, penalties and the effect on the rep-
utation of the private prosecutor. Measured in terms of convictions, all three
prosecutions were a success. If some modicum of penalty were to be imported
into the equation, arguably the Cyanamid case was a failure. Those who main-
tain that citizen prosecutors are mere “busybodies” and meddlers might point to
Cyanamid and the thinly veiled irritation of Wallace J. for support of their posi-
tion. On the other hand, the Cyanamid company did install a major ammonia
recycling plant after the prosecution.
235J. Flett (Ministry of Environment), “New Directions in Environmental Law Enforcement in
Alberta” (Insight paper, September 19, 1990) at 4-5.
2361Ibid.
237Proposed Alberta Environmental Protection and Enhancement Legislation.
238 Flett, supra, note 235 at 3-4.
239September 26, 1990 phone call with Mr. Tom Dixon, Pollution Control Division.
240According to Ms. Jillian Flett, Branch Head, Compliance Branch, Pollution Control Division,
in a phone call of Oct. 26, 1990, private prosecutions were attempted in 1988, in relation to the
Daishowa pulp and paper mill permit to construct (stayed), and subsequently three prosecutions
concerning the Old Man Dam have been attempted, of which two have been stayed and the third
is still active.
REVUE DE DRO1T DE McGILL
[Vol. 36
In fact, in all three cases, significant pollution abatement actions took place
following the prosecutions. While one cannot state with certainty that the abate-
ment action itself, or the speed of that action, was due to the prosecutions, the
alternative theory available –
seems
considerably less plausible.
that clean up was merely a coincidence –
All three actions forcefully illustrate the inadequacies of informal and ad
hoc inter-governmental agreements. These agreements are strung like tripwires
across the hazy enforcement landscape, ready to fell the unwary. Their status is
unclear: the public may or may not be aware of them, governments may or may
not follow them, and judges may or may not choose to recognize them. An alter-
native system is necessary, and is discussed in part IV below.
Equally problematic are the on-going relationships between government
and regulatees. As can be seen from all three of the case studies, the fact that
regular communication between government and regulatees takes place as tech-
nical solutions are worked out appears to be a necessary evil. But there is a
heavy price to pay for this necessity. There is the increased likelihood that
on-going relationships will compromise government’s ability to make decisions
to prosecute when the time is right. To a certain extent, the dangers of on-going
govemment-regulatee relationships can be avoided: each of the milestones
toward an abatement solution can be formally set out in a licence or Control
Order (as in the Cyanamid case, at the Ontario M.O.E. level, but formal federal
approval of the Ontario actions was missing), special enforcement squads can
be created, separate from the negotiators,24 and other actions discussed below
can be taken.242 Private prosecutions can act as an important check on relations
becoming too cosy. The difficulty is, how can an outsider to the process deter-
mine when a prosecution is appropriate? The technical and non-public nature of
these relations raise suspicions and present major obstacles to private prosecu-
tions.243
Evident in all three of the case studies were the tremendous informational,
technical and financial resources necessary to secure convictions for pollution
offence violations. The fact that in all three cases the accused raised due dili-
gence defences is indicative of a particularly difficult obstacle facing the private
prosecutor. In all three cases, the actions of government officials seemed to be
on trial as much as those of the accused. Usually, only government officials will
be in a position to refute arguments by the accused that government acquiesed
with company plans. Yet if government does not intervene and conduct the pros-
241Such separate enforcement staff exist in several jurisdictions, including Ontario, Quebec, B.C.
and Alberta.
242Most notably, the creation of enforcement and compliance policies.
2430n move toward technical environmentalism, see R. Paehlke, “Democracy and Environmen-
talism: Opening a Door to the Adminstrative State” in Paehlke & Torgerson, eds, supra, note 92,
35 at 45.
1991]
TAKING MATTERS INTO THEIR OWN HANDS
ecution, there is the possibility that the due diligence defence will succeed, thus
potentially estopping other actions.2′
The impression left by all three of the case studies is that the citizen has
been left “out in the cold” –
outside of the pollution control process. But the
private prosecutions succeeded in pointing a very powerful spotlight on the
actions of government, and in many cases found them wanting: they exposed
unstructured enforcement discretion as well as lose and informal arrangements
between government agencies. Taken together, it is no wonder that citizens have
become suspicious and have engaged in such actions. Some might contend that
the situation has changed since these prosecutions took place. This is undoubt-
edly true. As we have seen, new legislation has been put into place in some
jurisdictions, and is contemplated in others. Enforcement units have been estab-
lished in many provinces. 45 Approaches toward enforcement have changed in
some jurisdictions. But the type of reforms discussed in the following pages
have not been put into place. Until such reforms are made, private prosecutions
are likely to continue to be viewed by government and industry as a problem,
rather than a useful adjunct to government enforcement.
IV. Making it Work
A. Wanted: A Structured Approach to Enforcement
All three case studies squarely raise the issue of prosecutorial discretion:
most particularly its ambit, effect and what can be done about it. Some might
argue that private prosecutions affect the certainty, predictability and evenhand-
edness of enforcement. The cases show, so the argument would go, that where
on-going relations between government and regulatee are common, where tech-
nological solutions to problems must be invoked, and where inter-governmental
arrangements are in place, a private prosecution is a “wild card” that simply gets
in the way of the “experts.” To address this contention, it is necessary to exam-
ine the nature of the discretion and the possibilities for its effective structuring.
Unlike some other Western legal systems,246 Canada follows the English
lead in not subjecting government enforcement authorities (i.e., the police, or a
244As was discussed in part Ill. C. above.
2451n Ontario, Quebec, Newfoundland, Nova Scotia, Manitoba, British Columbia and Alberta.
246GIanville Williams, in his article “Discretion in Prosecuting” (1956) Crim. L. Rev. 222 at 222
states:
It is completely wrong to suppose (as is sometimes done) that the institution of pros-
ecutions is an automatic or mechanical matter. This is, indeed, the theory in some Con-
tinental countries, such as Germany, where the rule is that the public prosecutor must
take proceedings for all crimes that come to his notice for which there is sufficient evi-
dence, unless they fall within an exception for petty offences, in respect of which he
is given a discretion.
McGILL LAW JOURNAL
[Vol. 36
department charged with the administration of a statute) to a general duty to
prosecute for all cases which come to their attention.247 Instead, these officials
or departments characteristically exercise a broad discretion as to when a pros-
ecution is warranted. Parker J., in the English Queen’s Bench decision of James
and Son Ltd. v. Smee24s describes prosecutorial discretion in the following
language:
Where legislation … throws a wide net it is important that only those should be
charged who either deserve punishment or in whose case it can be said that pun-
ishment would tend to induce them to keep themselves and their organization up
to the mark …249
Canadian courts have tended to adopt a similar approach. Thus, for exam-
ple, in the 1977 decision of R. v. Catagas,50 the Manitoba Court of Appeal held
that an alleged policy to not enforce the Migratory Birds Convention Act”
against native Indians was illegal; the Crown could not by Executive action dis-
pense with laws. The Court then confirmed the existence of prosecutorial dis-
cretion in the following language:
Not every infraction of the law, as everybody knows, results in the institution of
criminal proceedings. A wise discretion may be exercised against the setting in
motion of the criminal process. A policeman, confronting a motorist who had been
driving slightly in excess of the speed limit, may elect to give him a warning rather
than a ticket. An Attorney-General, faced with circumstances indicating only tech-
nical guilt of a serious offence but actual guilt of a less serious offence, may decide
to prosecute on the latter and not on the former. … But in all these instances the
prosecutorial discretion is exercised in relation to a specific case. It is the partic-
ular facts of a given case that call that discretion into play.252
That there are many possible justifications for a pollution prosecution not being
undertaken by the Crown is beyond question; for example, there are a host of
other viable enforcement options which could be more appropriate to the situ-
ation (for example, inspector orders, Ministerial orders, ticketing), or there
might be insufficient evidence to support a legal action, or a different govern-
ment agency might be in the process of conducting an investigation concerning
the same incident, with a view to prosecution. Each of these may very well have
merit.
24 71bid. Williams’ statement of the extent of prosecutorial discretion in England appears to be
equally applicable to the Canadian situation. See, e.g., Bums, supra, note 5 at 293, and cases dis-
cussed in part III, above.
248(1954), [1955] 1 Q.B. 78, [1954] 3 All E.R. 273 [hereinafter cited to Q.B.] .
2491bid. at 93.
250(1977) 38 C.C.C. (2d) 296, 81 D.L.R. (3d) 396 (Man. C.A.) [hereinafter Catagas cited to
C.C.C.].
251R.S.C. 1970, c. M-12.
252Supra, note 250 at 301.
1991]
TAKING MATTERS INTO THEIR OWN HANDS
The point is, however, that at the present time there is rarely a formal, coor-
dinated and systematic approach to the treatment of detected pollution incidents,
and no regularized communication of that approach to interested parties. Con-
trary to the claim that private prosecutions interfere with the proper exercise of
enforcement discretion, the reality is that private prosecutions clearly illuminate
the incoherence and unfairness of current enforcement activities. In fact, private
prosecutions, such as those set out in the case studies above, are symptomatic
of the problem, but are not the problem themselves.
Feasibility of a structured approach can perhaps most clearly be demon-
strated through an examination of first, some key provisions in C.E.P.A., and
second, its accompanying Enforcement and Compliance Policy?53 C.E.P.A. does
not contemplate the type of on-going industry-specific emissions control
response which is associated with the Fisheries Act or provincial emissions con-
trol legislation. However, the techniques used in C.E.PA. to address the ques-
tion of effective public input in enforcement, and inter-governmental overlap of
responsibilities are directly relevant to discussion here. Apart from general obli-
gations in C.E.P.A. requiring the Minister to fully inform the public and encour-
age its participation, 4 several other specific provisions directly address aspects
of the “structuring discretion” question.
According to ss 108 through 110 of C.E.PA., any two persons resident in
Canada who are of the opinion that an offence has been committed may apply
to the Minister for an investigation of the alleged offence. The Minister is obli-
gated to conduct an investigation and report back in writing and/or end evi-
dence to the Attorney General for such action as the Attorney General may wish
to take. These provisions have the effect of providing an option short of private
prosecutions to concerned citizens. They do not bar private prosecutions, but,
arguably, they may either deviate the need to undertake such actions, or supply
further evidence in support of private actions. At the same time, they may be
an effective accountability method allowing citizens both to ascertain whether
government is “doing its job,” and to goad officials to do so. Reports on the
operation of these provisions to date suggest that they have been useful in bring-
ing problems to the attention of government,” and have not become a major
and unworkable diversion of administrative resources. 6
2 3 Supra, note 20.
254E.g., C.E.PA., ss 2(d), (e) & (g).
255According to Mr. Brian Neville, of Conservation and Protection Branch, Environment Can-
ada, there were ten applications under s. 108 received during the period June 30, 1988 to June 30,
1990. Of that number, “several” were found to be matters related to the enforcement of provincial
statutes and not covered by C.E.PA.; these files were all referred to the applicable province. One
was related to employee harassment after a report of an alleged release of a regulated substance.
The individual’s union dealt with the matter. One led to substantiation of an offence. A warning
was issued for violation of the Storage of P.C.B. Wastes Interim Order.
25 6Some provincial officials have expressed concern about the extent of resources which could
be spent reacting to such citizen requests for investigations were similar provisions to be included
in provincial legislation. They contend that provincial environmental legislation covers a consid-
REVUE DE DROIT DE McGILL
[Vol. 36
Second, with respect to the federal-provincial overlap problem, the Act
allows for non-application of certain C.E.P.A. regulations in a province where
the federal Minister and the government of the province agree in writing that
there are provincial laws in force which are equivalent to the federal regulations
in question and the provincial laws include provisions similar to the citizen
investigation sections discussed above. z 7 The agreement is made by order of the
Governor in Council, on the recommendation of the Minister, and must be made
public.” s As such, unlike the old federal-provincial “Accord” approach, 9 these
agreements appear to be legally binding. The agreements can be terminated on
six months notice.2″ The Minister is required to include in the annual report a
report on the administration of such agreements. 26′ Criteria in the Enforcement
Policy elaborate more fully on the factors pursuant to which the standard of
equivalency will be measured. One such factor is that there be “comparable
enforcement policies and procedures that are consistent with this Enforcement
and Compliance Policy.”‘262
To be sure, there are weaknesses with this system:
the legal foundation of C.E.P.A.’s equivalency provisions has been questioned
–
by some; 263
– such federal-provincial arrangements are not expressly subject to public
notice, comment and consultation (and should be);
erably broader scope of activities. Three responses to these concerns are possible: first, while it is
true that C.E.PA. has not been fully “operationalized” through, e.g., extensive toxic substances reg-
ulations, there are other offence contraventions possible under the Act (most notably for Ocean
Dumping (Part VI) and nutrients (Part in)). The fact that these provisions did not provoke signif-
icant use of the investigation provisions is indicative of moderation in their use. Second, arguably,
such investigations are good value for money in the sense that they may lead to early detection
and enforcement actions by government, and avoid the necessity of private prosecutions. Third,
should the provisions prove unworkable, they can be changed. They should be given a fair test first.
257C.E.PA. ss 34(5)-(10); ss 63(3)-(7). Hereinafter, only the s. 34 provisions will be cited, but
s. 63 is for all intents and purposes identical. See also s. 98, a general provision authorizing the
Minister, with the approval of the Governor in Council, to enter into agreements with the provinces
with respect to the administration of the Act, and requiring that the agreements be made public,
and reported on in the Annual Report.
258C.E.PA., ss 34(6)-(7).
259Courts have held the federal-provincial Accords to be non-binding in nature and lacking any
legal foundation: see, R. v. Canadian Industries Ltd. (1980), 2 F.P.R. 304 (N.B.C.A.). For discus-
sion of the accord approach, see Industrial Water Pollution, supra, note 153 at 173-99.
260C.E.PA., s. 34(8).
2611bid., s. 34(10).
262Supra, note 20 at 15.
2630n problems with “equivalency” and anticipated difficulties in use of such provisions, see
A.R. Lucas, “Jurisdictional Disputes: Is “Equivalency” A Workable Solution?” in D. Tingley, ed.,
Into the Future: Environmental Law and Policy for the 1990’s (Edmonton: Environmental Law
Centre, 1990) 25.
1991)
TAKING MATTERS INTO THEIR OWN HANDS
the Enforcement Policy is not a law and therefore is not legally binding2’ so
–
its equivalency criteria merely provide guidance;
there is no definition of “equivalent” or “similar” in the Act, and no definition
–
of “comparable” in the Policy; and
the factors listed in the Policy stop short of requiring that there be comparable
–
enforcement.
Still, the statute and Policy offer the most practical approach to resolving
the federal-provincial jurisdictional overlap problem that this author has seen.
Indeed, such an approach, if applied to address federal-provincial emissions
control, would be a vast improvement over the current informal and ad hoc
practices currently in place.
In its own right, the Enforcement Policy is an important step toward cre-
ation of a fair and effectively structured enforcement discretion. The policy was
subject to extensive public consultation prior to its promulgation. It specifically
obliges the government to apply the Act throughout Canada in a “fair, predict-
able and consistent” manner.26 It starts from the express premise that compli-
ance with the Act is mandatory. 266
The Policy sets out detailed criteria which enforcement officials are to
apply when deciding between enforcement options.267 Explanations are pro-
vided concerning each of the enforcement options, outlining when they may be
used, upon what criteria, and consequences of their use. The response options
are integrated and arranged in order of severity.26
The final and most serious responses listed in the Policy are prosecutions
and civil actions. Mandatory language is employed to describe when these
options will be invoked. They are tempered by several qualifications, but not in
such a manner as to render the policy completely devoid of force and effect.
Thus, for example, with respect to prosecutions, two sets of mandatory stipula-
tions are set out. First, it is stated that charges will be laid for every violation
except where a warning, a ticket, or a Ministerial order is the most appropriate
enforcement action.2″ This is followed by a more assertive position: prosecu-
tions “will always be pursued when … there is death of or bodily harm to a per-
son; … there is serious harm or risk to the environment, human life or health;”
264It may, however, have legal implications. See below at 823-24.
265Enforcement Policy, supra, note 20 at 9.
2661bid.
2671bid. at 43-44. The three main criteria heads are “Nature of the violation,” “Effectiveness in
achieving the desired result with the violator,” and “Consistency in enforcement” (supra).
26 8For illustration, see discussion of Enforcement Policy provisions regarding prosecutions
below.
269Enforcement Policy, supra, note 20 at 50.
McGILL LAW JOURNAL
[Vol. 36
the alleged violator intentionally supplied false or misleading information; there
is obstruction, interference, concealment; or when “all reasonable measures to
comply with” other enforcement measures were not taken.270
The Enforcement Policy is not without its problems, some of which were
discussed already.2 The failure of the Policy to specifically discuss the role of
private prosecutions, and to articulate an official position toward such actions
is a serious flaw. Another problem may be that policies written in mandatory
language will be considered an improper fetter of discretion.2 2 However, the
Policy, plus the investigation and equivalency provisions in the Act itself, rep-
resent the most advanced effort of a Canadian government to effectively and
openly structure its environmental protection discretion. A similar Enforcement
and Compliance Policy for the environmental provisions of the federal Fisheries
Act is currently being drafted. 3 The Ontario Ministry of Environment has had
in place a “Development, Compliance and Enforcement” policy for its major
environmental legislation since 1981,274 although it lacks many of the features
of the Enforcement Policy?5 The Enforcement Policy is ample demonstration
that it is possible to structure discretion without sacrificing flexibility.
On several levels, the C.E.P.A. approach should help to placate those who
fear that private prosecutions will interfere with government prosecutorial dis-
cretion. First, as discussed above, the citizen investigation prosecutions would
appear to provide a useful alternative or supplement to private prosecutions,
2701bid. at 51.
271Others include the Policy’s lack of recognition of judicial accountability for government
actions in addition to Parliamentary accountability (ibid. at 19), lack of clarity concerning who ini-
tiates government actions (e.g., does inspector lay charges upon detection of incident? (supra at
50), or does inspector recommend charges to the Attorney General (hinted at supra at 21) and com-
pare with s. 110 of C.E.P.A.), lack of discussion of private prosecutions, and no obligation to pub-
lish quarterly compliance reports.
272In Catagas, supra, note 250, the Court considered illegal a policy which suspended the
enforcement of a statute, because this was an improper fettering of discretion by the “Executive.”
But quaere whether a policy stipulating mandatory prosecution upon detection might not also
amount to an improper fetter, in that there is no room to examine the case on its own merits. The
key point would be whether the Attorney General has fettered his or her ultimate discretion over
prosecutions, or whether it is only the Department of Environment (not the ultimate authority)
which has done so. Note that in the Enforcement Policy, there is the express statement that the pol-
icy was developed “in cooperation with the Department of Justice” (supra, note 20 at 1), but there
is also the statement that “the ultimate decision on whether to proceed with prosecution of the char-
ges rests with the Attorney General” (supra at 21).
273Telephone conversation with John MacLatchy, Chief, Enforcement, Conservation and Protec-
tion, Environment Canada, September, 1990.
274Ontario, Ministry of Environment, Pollution Abatement Program: Development, Compliance
and Enforcement (Policy manual no. 05-02-01) (February 9, 1981).
275For example, it does not address federal-provincial overlap, was not subject to public notice
and comment in draft form, is available only in Ministry offices and other government outlets, and
does not set out criteria for enforcement to the extent of the C.E.P.A. policy examined here.
1991]
TAKING MATFERS INTO THEIR OWN HANDS
while still acting as an accountability mechanism. Second, the equivalency pro-
visions authorize a considerably more open, formal, and accountable federal-
provincial administrative sharing arrangement than is currently available. Their
public and binding nature increase the likelihood that they will be followed, thus
avoiding the necessity for private prosecutions to take place.Third, because
input from environmental groups concerning C.E.P.A. enforcement was solic-
ited prior to the Policy being put into place, there is a considerably greater like-
lihood that the public will agree with the subsequent enforcement actions or
inaction. At the very least, the public knows what that policy is, and thus what
to expect. This may help to reduce some of the well-founded distrust and sus-
distrust which flows at least in part from past
picion which currently exists –
ise of unwritten or at least unpublished policies. If the federal Department of
Environment keeps its word as set out in the Policy, there will then be a
decreased need for private prosecutions. In addition, such policies also provide
regulatees with greater certainty and predictability with repect to enforcement
so that they can plan their affairs. Such policies give them greater confidence
in predicting Departmental actions, and those of the public.
Apart from these purely practical benefits flowing from use of enforcement
and compliance policies, some commentators have suggested that policies of
this nature may also be legally required in order for Departments to withstand
Charter challenges of unfair or unequal enforcement under ss 7 and 15.276 The
basic position taken by these commentators is that courts will only assume
enforcement actions are compatible with Charter values of fairness and equality
in enforcement where enforcement policies exist; where they have been drafted
with full public input; where the policy has been approved by the Minister; and
where the individual enforcement action in question is in consonance with the
terms of the policy.277
This position necessitates that judges take a considerably more aggressive
stance toward reviewing prosecutorial discretion than they have demonstated to
date.27 Certainly, the existence of such policies should assist the courts in
assessing the propriety of government enforcement actions.21 9
276Finkle & Cameron, supra, note 50.
2771bid., especially at 55-57.
27 8Cases such as Campbell and Osiwoy, discussed above, suggest that courts would only inter-
fere where there was evidence of “flagrant impropriety” or it could be shown that the Attorney
General acted with bias or had abused the law. An argument could be made that failure to establish
such compliance and enforcement policies amounts to a “flagrant impropriety.” The notion of ine-
quality of treatment, per s. 15(1) of the Charter, has also received a comparatively narrow inter-
pretation to date: see, e.g., R. v. Turpin, [1989] 1 S.C.R. 1296, 96 N.R. 115. For a more pessimistic
assessment of the potential for the Charter to address the question of lack of uniform national
standards of enforcement, see Lucas, supra, note 263 at 31-32.
279For an optimistic assessment of its possibilities, see Finkle & Cameron, supra, note 50 at 57.
REVUE DE DROIT DE McGILL
[Vol. 36
A more proactive approach, and one which is in keeping with the values
set out in the Charter and the general movement toward open and public admin-
istration in environmental protection, would be for government to take the inti-
tative by statutorily requiring that Ministers establish Enforcement and Compli-
ance Policies that are subject to notice and comment and reviewed every two
years. The existence of such policies should assist governments in their own
actions, aid regulatees in organizing their affairs and inform the public and the
courts.
The foregoing analysis suggests that viewing private prosecutions as inter-
ferences with the proper working of government is a classic example of shoot-
ing the messenger. The problem lies not with private prosecutions, but with the
legislation and practices of government which permit an unstructured approach
toward emissions control administration and enforcement.
B.
Improving Private Prosecutions
In light of this discussion, what future lies ahead for private prosecutions?
What can be done to improve their functioning? Obviously, bringing citizens
into the pollution-control decision-making process as early as possible, making
inter- and intra-governmental administrative arrangements formal and public,
providing citizen request-for-investigation provisions such as in C.E.P.A., and
creating public, effective enforcement policies, are all improvements likely to
reduce the need for private prosecutions.
But there are many other factors which all tend to prevent private prose-
cutions from assuming a vigourous role as a check on government enforcement
or lack thereof. Generally, the prohibitively expensive nature of environmental
prosecutions –
from lab costs, to expert fees, lawyer fees, and court processing
charges –
represents a major barrier to most citizen prosecutors. The limited
ability of the courts to award costs to private prosecutors and the fact that cer-
tain costs can be awarded against them represent major impediments to such
actions, and should be amended.28
A series of informational obstacles lie in the path of any person planning
to initiate a private prosecution. Citizen actions are dependent on three different
information-related tasks:
(1) collection of raw evidence upon which a charge can be based –
of the existence of a violation is in itself often extremely difficult;
detection
2See generally, Bums, supra, note 5 at 287 and Law Reform Commission of Canada, Criminal
Procedure: Control of the Process (Working Paper 15) (1975) at 50. There is also the somewhat
remote likelihood that a private prosecutor could be sued in a civil action for malicious prosecu-
tion. Even though likely to be unsuccessful, the possibility of such actions, while acting as a check
on improperly motivated prosecutions, could also have a chilling effect on some citizens.
1991]
TAKING MATTERS INTO THEIR OWN HANDS
(2) evidence analysis –
exceeds standards;
laboratory confirmation that a substance is harmful, or
(3) court presentation of the evidence –
the credibility of the prosecutor’s case
can normally be greatly enhanced through the use of expert witnesses, often
from government. Also, an effective rebuttal of a due diligence defence usually
requires that the prosecutor possess a complete understandifig of the technical
and financial aspects of the accused’s operations.
While it is possible for a private citizen to complete all three of these tasks
without government assistance, it is usually less expensive and more practical
to make use of available government services. Indeed, from the private prose-
cutor’s standpoint, the assistance of government officials in virtually every stage
of a prosecution is all but essential: government has the information, expertise,
and facilities in which to analyze raw data.
The natural reliance which private prosecutors have on government raises
a number of tricky questions for enforcement agencies. One key issue is impar-
tiality. While environment departments are usually cooperative and try to assist
members of the public, in the context of private prosecutions, the question must
be asked, why, if the citizen has a good case, shouldn’t government conduct the
prosecution itself, and if Environment officials do not wish to prosecute, should
they nevertheless support the private action through technical assistance? While
the author would take an affirmative position, on the basis of the need to encour-
age citizen participation, the point is that environment agencies must address
this question directly and explicitly so that citizens are made aware of the gen-
eral policy before embarking upon any particular action.
The Crown Zellerbach and Suncor cases are examples of citizen-initiated
actions where the federal government assumed responsibility for conduct of the
actual prosecution. This relieved the private citizens from the heavy burden of
securing expert witnessess, and gaining access to pollution-related information
concerning the accused (not to mention the expense of conducting the trial). In
Cyanamid, no Crown intervention took place. On what basis are Crown deci-
sions to intervene and conduct prosecutions based? Could this not be stated in
advance in a publicly disseminated document?
In the Cyanamid case, the private prosecutor conducted the trial without
the intervention of the Attorney General, but employees of the provincial Min-
istry of Environment appeared as expert witnesses for both the private prosecu-
tor and the accused, while the federal Department of Environment provided the
private prosecutor with advice. The problems associated with any government
department attempting to straddle both sides of the fence need no further elab-
oration. An express, publicly disseminated department position on such situa-
tions would be sensible.
McGILL LAW JOURNAL
[Vol. 36
A related issue is citizen use of government testing facilities (if any exist).
Arguably, it is in the government’s best interest to encourage citizens to bring
in samples for testing, since the results supplement the government’s own mon-
itoring efforts. On the other hand, testing can be expensive, and facilities lim-
ited: who should get priority? A final problem is information disclosure –
from
govemment-regulatee correspondence to monitoring reports supplied by the
regulatee and inspector reports.28″ ‘ Are these readily available? Where do envi-
ronment agencies stand on this issue?
Quite apart from technical and informational assistance, governments can
and do provide financial aid to private litigators. That they should do so flows
naturally from their statutory commitments to “encourage the participation of
the people of Canada in the making of decisions that affect the environment 28
and the thrust of the Charter. Arrangements such as the Penalties and Foifeit-
ures Regulations 3 under the federal Fisheries Act represent recognition of the
contribution made by private parties who initiate or conduct prosecutions, but
the actual amounts provided are dependent upon conviction and the size of the
fine. Furthermore, these regulations only apply to the federal Fisheries Act.
Consistent, agency-wide funding arrangements would make more sense. These
could be adjusted if and when court rules regarding awarding of costs are
changed.
It seems readily apparent that governments should develop a policy con-
cerning private prosecutions. Such a policy should address such issues as the
following:
(1) In what circumstances will a government decision not to prosecute be dis-
closed? In the recently completed British Columbia Discretion to Prosecute
Inquir 2″4 it was recommended that where a decision not to prosecute has been
made, and the public is not aware of the investigation, there should be no public
disclosure (in the interests of the formerly suspected accused). But where the
public, a victim or other signficantly interested person is aware of the investi-
gation, that party should be given adequate reasons for the non-prosecution.285
A statement to this effect in a private prosecution policy would be useful.
(2) What information will be supplied concerning a government decision not to
prosecute? Since the early 1980s, the Ontario M.O.E. has had in place a policy
which requires that, where the M.O.E. decides against a prosecution, informa-
2’For a more comprehensive treatment of information availability in the environmental context,
see M. Rankin, “Information and the Environment: the Struggle for Access” in J. Swaigen, ed.,
Environmental Rights in Canada (Toronto: Butterworths, 1981) 285.
282C.E.P.A., s. 2(d).
283Supra, note 152.
2840wen, supra, note 28.
2851bid. at 118.
1991]
TAKING MATrERS INTO THEIR OWN HANDS
tion regarding the incident will be available upon request, subject to informa-
tional constraints imposed by legislation.286 This policy has always seemed sus-
pect, because it was never clear how a non-prosecution decision would become
known. However, if coupled with the policies contained in point one, plus point
four below, there is some reasonable opportunity to make the M.O.E. policy
meaningful. Certainly, the thrust of the M.O.E. policy –
that information will
be supplied –
is one which should be included in a private prosecution policy.
The “constraints” imposed by legislation should be spelled out in the policy.
(3) How will the Attorney General treat private prosecutions? In some jurisdic-
tions, it is the policy of the Attorney General to intervene and conduct all pros-
ecutions.’ What is not clear, however, is on what basis decisions to stay or to
intervene are made. Some general criteria would be highly useful, although of
course the discretion of the Attorney General must not be improperly fettered.
Additionally, although historically courts have stated that the Attorney General
is not under an obligation to supply reasons for a decision to stay,”‘ in the inter-
ests of fairness and openness, such reasons should be provided. The policies of
the Attorney General on these matters should be explicitly stated in a private
prosecution policy.
(4) What on-going compliance or non-compliance reports should be regularly
published? In British Columbia, the Ministry of Environment has recently
begun publication of a quarterly “Non-compliance Pollution List.”2 9 The list
includes a description of how the Ministry measures the environmental impact
of waste management permits, the names and locations of permit-holders con-
sidered to be in “significant non-compliance,” the nature of waste discharge,
and further comments. A second part lists sites that are a “pollution concern”
to the Ministry. In each case where there is non-compliance, the Ministry is
requiring the permit holder to undertake remedial action to comply with the
conditions of their permit.29 It seems self-evident that such lists can become the
basis for citizen requests for further information, and possibly citizen actions.
In addition, the publication of such lists make limitation periods on prosecutions
which commence from the time of government detection considerably fairer.29″ ‘
(5) What further information will be made available to citizens? Requests pur-
suant to freedom of information are useful measures of last resort, but an expli-
cit and upfront position on the disclosure of monitoring information, corre-
n 6Stpra, note 275, s. 3.2.3.
287E.g., this is the case in Alberta and British Columbia.
2 88See, e.g. Controlling Criminal Prosecutions, supra, note 32 at 4.
289E.g., British Columbia, Ministry of Environment Release, “Reynolds Releases Non-
2901bid. at 2.
291An example of such provision is contained in the Manitoba Environment Act, discussed supra,
Compliance/Pollution List” (13 July 1990).
note 114 and accompanying text.
REVUE DE DROIT DE McGILL
[Vol. 36
spondence and inspector reports would be considerably more straightforward
and sensible.
(6) Will government officials conduct tests on samples supplied by citizens? The
value of government positions on this matter should be obvious, both to govern-
ment and to the public.
(7) What technical assistance will be provided to private prosecutors? Govern-
ment officials need to know whether or not the advice they are providing to
potential private prosecutors should be considered “off the record,” as some-
thing wrong, or whether it is part of serving the public. The public needs to
know this as well. In addition, the availability of government experts as court
witnesses could be discussed.
(8) What financial assistance will be provided to private prosecutors? The
financial costs of engaging in such actions are potentially enormous. A rational
approach would be to establish an agency-wide program which would contrib-
ute assistance in relation to expenses incurred.
Such private prosecution policies should be circulated in draft form to all
interested parties for comment, appropriate changes made, and then published
as part of Enforcement and Compliance Policies. They should be reviewed at
least every two years to ensure their accuracy and appropriateness.
Conclusions
At the beginning of this article, the tension between two competing posi-
tions, one viewing private prosecutions as meddling, and the other as indicative
of government ineptitude, was noted. In the pages which followed, an attempt
has been made to demonstrate why this tension exists, and how it could be alle-
viated. It has been shown that while public participation is generally encouraged
in democratic countries, the representative democratic systems elevate certain
individuals to the position of elected representatives, and leave the rest of the
public outside of effective decision-making except by indirect methods. The
need for supplemental administrative and procedural mechanisms to ensure cit-
izen input in the processes of governing is self-evident if the representativeness
of the governors is to be ensured. Where such avenues of citizen input are not
provided, the public support needed to implement laws may be missing, leading
to suspicion and distrust surrounding government enforcement actions or
inaction.
The current approach to political accountability for prosecutorial decisions
was also examined, and it was found to exacerbate the inherent tension between
the governors and the governed. Because of party solidarity, the uncertain nature
of relief provided through question period, and the inherent conflict of interest
of the Attorney General, the extent of effective political accountability is lim-
1991]
TAKING MATTERS INTO THEIR OWN HANDS
ited. There are also systemic problems with political accountability: while
Crown decisions to prosecute are visible, and thus there is some possibility of
political accountability, decisions not to prosecute are not visible unless the
event in question has somehow become public knowledge. Private prosecutions
are a method of forcing Crown decisions not to prosecute to the surface: one
way or the other, the Attorney General must react to a private prosecution.
Historical examination revealed that private prosecutions for public
wrongs were extremely common until the nineteenth century, when the indus-
trial revolution sparked increased regulation and the need for permanent full
time administrators. The necessity of on-going relations between government
and regulatees, and the increasingly technical nature of government-regulatee
negotiations decreased the ability of citizens to view and thus effectively partic-
ipate in decisions concerning them. With the growth of governments, adminis-
tration of emission regimes became spread over several agencies at several lev-
els of government, usually inter-connected by informal agreements. This
shadowy web of administrative arrangements presents another impediment to
the concerned citizens attempting to understand how laws are being
implemented.
The technical nature of the proof process in environmental matters, and the
development of the strict liability offence, with its defence of due diligence, fur-
ther removed the possibility of private prosecutions from the hands of most cit-
izens. To succeed in obtaining a conviction now requires that the prosecutor not
only know all of the actions or inactions of the accused, but also those of
government.
Gradually, in recognition of the tremendous potential for the bureaucrat to
be compromised in his ability to administer such laws fairly, there have been
increasing attempts by governments to open up the process, through policies
and recently through statutory commitments to inform the public, and encour-
age participation. These reforms are definite improvements, but they are only a
first step.
As the case studies demonstrate, what is needed is a structured approach
to environment agency administration and enforcement. First, citizen request-
for-investigation provisions similar to those contained in C.E.P.A. should be
included in all emission control legislation. These request-for-investigation pro-
visions offer a quicker and more practical way for citizens to find out the status
of enforcement action concerning a particular incident, and yet also perform the
needed “check” function on government action. Once in place, it is doubtful that
most citizens will feel the need to attempt private prosecutions unless requests
for investigation fail to produce results.
Second, federal-provincial administrative arrangements should be formal-
ized through legally binding agreements, subject to notice and comment in draft
McGILL LAW JOURNAL
[Vol. 36
form, and ultimately approved by orders in council. To be effective, these agree-
ments must directly address the issue of enforcement. To do so, there should be
requirements that the agreements include citizen request-for-investigation pro-
visions as in C.E.P.A., and that Ministers promulgate Enforcement and Compli-
ance Policies for their jurisdiction which have been subject to public review and
comment and the approval of the sharing jurisdiction.
Enforcement and Compliance Policies are essential to the effective struc-
turing of government adminstration and enforcement. These must set out how
the legislation will be implemented in imperative language so as to ensure cer-
tainty, consistency and predictability in enforcement, while still allowing for
administrative flexibility to address individual situations. The C.E.P.A. policy,
though flawed, is a good start. It must be supplemented by commitments to pub-
lish regular non-compliance reports, position statements concerning information
availability in the event of decisions not to prosecute (including reasons why
government action has not taken place), a statement of the criteria upon which
Attorney General decisions to stay or conduct privately initiated prosecutions
are made, and finally a description of government’s position regarding access to
lab testing for citizen supplied samples as well as availability of government
officials to assist with private prosecutions.
Private prosecutions today are symptoms of a lack of trust in government.
Historically, they were useful adjuncts to enforcement by public officials. For
private prosecutions to regain their historical role, governments must win back
the confidence of the public. This means abandoning unstructured administra-
tion and enforcement in favour of a formal and open approach to governing. In
keeping with the Charter focus on fundamental justice and equality, govern-
ment action should be certain, consistent, and predictable, and the participation
of the public should be welcomed. Until this happens, citizens taking matters
into their own hands will continue to be viewed by some as part of the problem
rather than part of the solution to today’s environmental crises.
