Among the numerous changes to environmental laws across Canada over the past several years is a trend among jurisdictions to adopt a prescriptive approach similar to that of the U.S. EPA. However, following a ramp-up of environmental enforcement in the late 1980s and the early 1990s, a recession and ongoing government cuts led to significant reductions in enforcement in recent times.
In the wake of Walkerton, however, environmental regulators and governments across the country have re-evaluated the resources they direct to environmental enforcement. One notable example is the environmental SWAT Team in Ontario. The SWAT Team operates parallel to the regular Investigations and Enforcement Branch (IEB) of Ontario’s Ministry of Environment. Its officers have all the powers of IEB officers but are usually dispatched in groups to focus on particular sectors of the economy or particular potential polluters. Complete with a near-military SWAT uniform, these officers are trained to not only investigate environmental matters but also to create the impression of a substantial “police” presence during investigations.
Training & resources
Where enforcement is concerned, a significant amount of training is required of both technical and non-technical officers. Training is made more critical by the fact that investigations often undergo the scrutiny of the judicial process and all of the evidentiary burdens associated with it. Despite financial pressures, funds for the creation, maintenance and training of these environmental enforcement organizations has increased in the case of the Ontario environmental SWAT team. Recently there have been reports of a planned increase to complement the number of investigators employed by SWAT. This additional staff would reinforce the view that the provincial government is treating environmental enforcement seriously in the post-Walkerton world.
Skeptics, however, complain that the types of matters that are the focus of the SWAT team do not represent the most serious environmental offences. Many of the contraventions that are brought forward by the SWAT team for charges or other regulatory action are “paper” offences involving actions that arguably are not environmental in their impact. Examples of these include: expired Certificate of Approval (C of A) in a vehicle, failing to properly display the C of A number on the side of a vehicle, and not keeping all facility manuals up to date.
There is little dispute that attention must be paid to these matters. However, many argue that teams of investigators dressed in fatigues are not necessary to investigate them. Moreover, resources could be used to investigate more serious environmental offences around the province.
The human side
All the money and good intentions in world don’t, on their own, result in additional convictions. When charges are laid inappropriately by SWAT or other officers or when an investigation is not carried out properly, conviction won’t follow. There are several reasons that are not always obvious.
It’s not unusual for investigators and prosecutors to view those whom they’re investigating as environmental criminals even before conviction. Similarly, those involved in the waste industry or other enterprises with environmentally sensitive operations may be viewed with suspicion. As a result of this approach, officials may be a little more sanctimonious than is appropriate. This can be very frustrating for the “good corporate citizen” making all reasonable efforts to comply with the law.
It can also work to the advantage of such a good citizen since it sometimes lulls the official into a sort of carelessness. If they’re focusing on an alleged contravention, the attention to detail in the conduct of an investigation or in the preparation of a prosecution may be left wanting. In order to take advantage of this situation, a company or individual must carefully review the facts and technical evidence with the assistance of technical and legal advisors.
Orders or charges against an alleged environmental offender may be deficient in many ways. Details required to prove the crown’s case may be missed by officers or prosecutors while substantive elements of an offence may not be properly assessed in order to meet the relevant legal tests. In such cases, those facing such orders or charges should insist that a court or the Environmental Review Tribunal be satisfied that all legal relevant legal requirements be met by the SWAT officer or the crown prosecutor.
The only way to ensure that improper orders or charges do not have an inappropriate impact on industry is to put environmental officials to the strict proof of any allegations they make. The only way this can happen is if orders and charges are carefully reviewed with an eye to ensure that the regulator does not overstep its bounds.
Written by Adam Chamberlain, LL.B. of Power Budd, the Canadian affiliate of Cameron McKenna, an international law and consulting firm. Adam sits on the board of directors of the Ontario Waste Management Association. E-mail Adam at email@example.com