We have written numerous blogs over the years on the difference between inspections vs. investigations. This blog is a reminder on the general distinction between an inspection as opposed to an investigation and the authority of Provincial Officers (“PO”) and outlines the aspects of a strict liability offence and the available defences. This blog is by no means a comprehensive review and provides a general overview of these important concepts.
We are often asked what is the difference between the environmental term “inspection” versus “investigation”? These two terms are commonly used by environmental governing, regulating, authorities.
When an environmental “inspection” is conducted by the Ministry of Environment, Conservation and Parks (“MECP”) it is to ensure compliance, or confirm that compliance with the applicable statute, is being maintained. Generally, an inspection report is provided following the inspection that can include numerous action items.
The environmental principle of inspection is an exercise in due diligence by each side, for example, the individual/business and the governing authority, in terms of upholding compliance and seeking opportunities to improve or implement practices that preserve compliance and mitigate risk factors.
In Ontario, section 156 of the Environmental Protection Act, RSO 1990, c. E.19 (“EPA”) sets out the broad powers and authority of Provincial Officers (“PO”) to conduct an inspection without a warrant or court order, at any reasonable time.
It is important to be familiar with sections 156(1) and (2) of the EPA, as it distinguishes the PO entry provisions are under the EPA. These sections also set out what a PO may inspect beyond the examination of records including but not limited to the taking of samples, performing excavations and conducting of tests. Being familiar with the scope of the PO’s authority when entering your premise for inspection is important and also set out in section 156 of the EPA.
However, if an environmental “investigation is requested”, it is generally to investigate an offence that has or may have occurred or to gather evidence to support a future prosecution. Section 184 of the EPA confirms that it is an offence to refuse to comply or interfere with a PO investigation or any employee in or agent of the MECP when acting under the provisions of the EPA.
Section 184 of the EPA however also applies to inspection powers, such as providing and furnishing false, misleading information or data, or the refusal of providing information to the PO.
At the investigation stage, the MECP’s powers are more limited due to the protection of fundamental rights under the Canadian Charter of Rights and Freedoms as environmental offences are strict liability offences and quasi-criminal in nature. Regulatory offences, such as environmental offences, should be taken seriously as investigators can often execute search warrants, obtain business records, interview witnesses and obtain statements, all of which can then be admissible as part of a prosecution.
Strict liability[1] offences provide for the defence of due diligence (also a mitigating factor in terms of penalties), where the person/entity accused has exercised a reasonable standard of care in protecting against the event that occurred. Offences considered to be “public welfare” offences, such as environmental offences, are prima facie presumed to be strict liability offences[2] and include those offences contained in regulatory statues[3].
If charged with a strict liability offence you may raise a due diligence defence by proving on a balance of probabilities that you took all reasonable steps to avoid the particular act or that you reasonably believed in a mistaken set of facts which, if true, would render the act innocent.
As a strict liability offence, the Crown is not required to prove any mens rea (the intent or knowledge of the act), the Crown only needs to prove the actus reus (the act/action that occurred). A defence of due diligence can be raised by establishing that reasonable care was taken to avoid the offence or by raising a defence of a mistake of fact[4]. The conduct of the accused is measured against that of a “reasonable person[5] in similar circumstances.[6]” A defence of due diligence requires that the accused “take all reasonable steps” or “all reasonable care” to avoid the harm that resulted. However, this does not mean that all conceivable steps must be taken just all reasonable steps[7].
We
recommend that you seek legal advice when you have been advised or suspect that
an environmental investigation or inspection is being conducted as it is
important to know your rights and the limits of the regulator. In either
instance, Siskinds LLP is available to answer any of your concerns before the inspection
or investigation occurs.
[1] Strict liability as defined in the case of R v Sault Ste. Marie has been referred to as a “halfway house” between fault-based liability (i.e. criminal) which requires proof of mens rea and absolute liability, where the presence or absence of mens rea or intent is irrelevant and liability arises where the prohibited act has been proved. See R v Sault Ste Marie, [1978] 2 S.C.R. 1299, 85 D.L.R. (3d) 161.
[2] Lévis (City) v Tétreault; Lévis (City) v 2629-4470 Québec inc., 2006 SCC 12 (CanLII), [2006] 1 SCR 420 [Lévis], per LeBel J, at para 16.
[3] Cook v Saskatchewan (Attorney General) (1983), 1983 CanLII 2012 (SK QB), 23 Sask R 236 (QB), per Halvorson J
[4] R v Pontes, 1995 CanLII 61 (SCC), [1995] 3 SCR 44, per Cory J, at para 32
[5] La Souveraine, Compagnie d’assurance générale v Autorité des marchés financiers, 2013 SCC 63 (CanLII), per Wagner J, an accused can “avoid liability by showing that he or she took all reasonable steps to avoid the particular event … The defence of due diligence is based on an objective standard: it requires consideration of what a reasonable person would have done in similar circumstances.”
[6] Supra 3 at para 15 “the accused in fact has both the opportunity to prove due diligence and the burden of doing so. An objective standard is applied under which the conduct of the accused is assessed against that of a reasonable person in similar circumstances.”
[7] R v British Columbia Hydro and Power Authority, 1997 CanLII 4373 (BC SC), [1997] BCJ No. 1744 (S.C.), per Lamperson J, at para 55 (“In other words, an accused must take all reasonable steps to avoid harm. However, that does not mean an accused must take all conceivable steps.”). See also R v Pontes, 1995 CanLII 61 (SCC), [1995] 3 SCR 44, per Cory J, at “para 32