In late 1998 the Ontario government introduced Bill 82 which contains amendments to the provincial Environmental Protection Act, the Ontario Water Resources Act and the Pesticides Act. The amendments that received the most fanfare were administrative monetary penalties (AMPs). AMPs allow environmental offenses to be treated more like traffic infractions than as quasi-criminal environmental offenses. AMPs are imposed by the director and, unlike traditional charges, may not be challenged in court.
AMP supporters note that their ease of use is an appropriate response to dwindling government resources. Critics, however, point out that the traditional criminal burden of proof and other procedural safeguards are not available to ensure that the rights of the accused are protected.
While AMPs have received the most attention, a number of other amendments were included in Bill 82 that are equally important and that shouldn’t be overlooked. The most important effect of these other changes is that they increase the discretionary powers of field officers.
Increased police powers
Bill 82 has significantly enhanced the powers of inspection — powers similar to those enjoyed by police officers under the Criminal Code. New provisions will allow provincial officers to prohibit entry to any land or place and to prohibit the use of or interference with evidence of an offense. Action may be taken to secure a scene for a maximum of two days after which time the order of a judge will be required.
The amendments clarify the authority of officers to stop and inspect vehicles and vessels. Provincial officers may stop vehicles and make “reasonable inquiries” of the operator, including the examination of required documents. A vehicle carrying anything regulated will be subject to inspection. This will significantly increase the ability of authorities to “spot audit” and gather evidence.
Inspection powers have been broadened to include any place that an officer reasonably believes may contain any thing regulated under any of the three amended Acts. In addition, the existing field-order process has been replaced and streamlined and is subject to very short appeal and review times. As a result, failure to treat actions or statements of provincial officers seriously could prove costly and extremely inconvenient.
Other amendments of note include the permitted use of tracking devices and other investigative aids (with a court order) and provisions regarding the treatment of “seized” materials.
Devices that may be used for “tracking” include those that are installed to show the origin, identity or location of anything that could be used in an investigation. This will allow the use of sophisticated tracking technology such as the network of global positioning satellites.
The provisions that relate to vehicle permits and plates should be of particular concern to the waste management industry. The provisions have been expanded to include seizure of permits and plates where necessary to prevent the continuation of any environmental offense. Waste management system operators will want to be particularly diligent to ensure that their vehicles are not taken off the road for what could be considered minor offenses.
Ontario’s newly appointed Minister of the Environment Tony Clement will oversee the further implementation of the amendments. While he doesn’t have an extensive environmental background, he has acted as minister of transportation and so brings with him an understanding of hauling issues and some knowledge of the transportation of dangerous or hazardous goods which should prove helpful as he “digs in” to his new portfolio.
However, business in Ontario is not likely to change dramatically as a result of Bill 82. While the power of investigators has been enhanced, the resources required for a significant increase in the number of investigations have not been committed to the environment ministry.
Bandit operators will continue to flout the law, but they now may have their plates removed and their activities more easily traced. Sloppy operators will feel the effects of this process most as it will be simpler for the government to target poor hauling and disposal practices. This will benefit legitimate operators who have little to fear in the world of AMPs and satellite surveillance.
In the end, however, the critical determinant of the success of the amendments will be whether or not the new powers are applied fairly and appropriately across the province.