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Is a piece of flying rock really a discharge that must be reported under the Environmental Protection Act to the Spills Action Centre? In R. v. Castonguay, a blasting contractor was fined $25,000 plus the victim fine surcharge for failing to report fly rock to the MOE. Now, Chief Justice Winkler has given Castonguay leave to appeal its conviction to the Ontario Court of Appeal.

Justice Winkler stated that it was essential in the public interest for this decision to be reviewed. The prosecutor argued that
the legal issues were not of public importance, as they are limited to blasting companies, and asked the Court to trust the ministry not to prosecute in absurd and inappropriate circumstances. (Is Castonguay itself a counter-example?)  They also argued that environmental significance is irrelevant to the obligation to report, relying on their interpretation of R. v. Dow.

Justice Winkler noted that the public needs to know, in advance, when it is obliged to report.  Ex post facto discretion on the part of the Crown won’t work –if a member of the public were to decide not to report an event, assuming that the Ministry would not require it, and the Crown subjectively decided otherwise, that individual would only become aware of the duty when they
were charged. It is not enough to rely on ministry discretion about who it chooses to prosecute:

“Moreover, the duty to report is a proactive duty imposed on members of the public requiring direction from the statute as interpreted by the court, as to when this duty will be triggered. The respondent’s suggestion of an after-the-fact prosecutorial discretion would not provide adequate guidance to members of the public on how they can meet the regulatory requirements of the EPA. In other words, if a member of the public makes a conscious decision not to report on the assumption that the ministry would view the incident as inconsequential and that decision differed ultimately from the subjective assessment of the crown, that person would only learn of this when they were charged. This approach is unacceptable. The public must be able to make a more informed decision as to their obligation to report. I cannot accede to the respondent’s contention that prosecutorial discretion alone is a sufficient answer to any uncertainty in the scope of the duty to report. The interpretation of the duty to report is thus an issue with great importance to the public.

[22] The respondent further states that the applicable law raised in the instant case has already been decided by this court in R. v. Dow Chemical Canada Inc. (2000), 47 O.R. (3d) 577 (C.A.). It is the contention of the respondent that in Dow the court considered, but was not persuaded by, an argument that it was necessary to interpret the statute as requiring that the discharge of the contaminant into the natural environment itself had to be more than minimal or trivial.

[23] In Dow Chemical, an employee was exposed to a release of chlorine gas, but there was no offsite impact, nor any onsite impact except on the employee. Dow argued that it could not be found guilty of an offence for discharge of a contaminant causing an adverse effect if the discharge posed only a trivial or minimal threat to the environment.

MacPherson J.A. was not persuaded by this argument. However, it was ultimately unnecessary for him to decide whether a more than minimal impact on the environment was necessary because he found that the discharge of chlorine gas was not trivial. Recalling two notorious incidents of chlorine discharge, he wrote at para. 36 that “it would be a rare case in which any discharge of chlorine into the open air from an industrial plant would warrant the adjectives ‘trivial or minimal’, provided the discharge caused one of the ‘adverse effects’ set out in the statute.” Dow Chemical did not, therefore, decide the issue of whether there could be a duty to report where there was an adverse effect but negligible or no effect on the environment, because those were not the facts in that case. Thus, I am not persuaded that the issues raised in this case have been definitively determined by this court.”

by Dianne Saxe and Jackie Campbell

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