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When is an individual liable to conviction for a corporate environmental offence? The Ontario Ministry of the Environment has insisted that management personnel are automatically liable for corporate environmental offences, and has laid numerous charges on this basis. The Summary Conviction Appeal Court disagrees. For personal liability, individual defendants must either participate in committing the offence, or fail to prevent something they know is happening within their area of control.

In R. v. Lacombe, numerous charges were laid under the Environmental Protection Act, relating to alleged waste offences. 55 of the 60 charges were ultimately dismissed or withdrawn, including all charges against the individuals. In its appeal to the Summary Conviction Appeal Court, the MOE argued that  individual managers should be convicted, despite no findings of fact that they participated in the offences or knew about them when they happened:

“102. In order to secure a conviction against a corporate officer or director, the Crown must demonstrate any one of the following to provide evidence of the actus reus:

a. The defendant was actively involved in the commission of the offence,

b. The defendant was in a position of influence and control over an activity and failed prevent the occurrence of the offence; or

c. The defendant knew of the circumstances of the offence.”

According to the MOE, an officer or director automatically commits, personally, every offence in his/her organization, without proof that the defendant knew about or participated in the offence. In addition, the MOE urged the court to apply this rule to management personnel who were not, according to corporate records, either officers or directors.

In other words, according to the MOE, management personnel automatically commit any offence that the people they manage commit. They say the onus should then move to the manager to prove due diligence.

The summary conviction appeal court (Ontario Court of Justice) rejected this. In her decision dated June 10, 2013, as corrected June 26, Judge Ann Alder ruled:

The Crown needed to prove beyond a reasonable doubt the actus reus of the offence either by proving the individual defendant was actively involved in the commission of the offence, or was in a position of influence and control over an activity and failed prevent the occurrence of the offence; and knew of the circumstances of the offence.

Thus, the onus is on the prosecutor to prove, beyond a reasonable doubt, that individual defendants have either participated in committing the offence, or failed to prevent an offence that they knew was happening within their area of control.

Note: there is a slightly different test under s. 194 of the the Environmental Protection Act. Under that section, officers and directors have a personal duty to use reasonable care to prevent their corporations from committing certain types of offences. In such cases, the prosecutor must prove that the defendant failed to use such reasonable care.

We will comment on another aspect of the case later, the implications for what counts as hazardous waste. View the decision here.

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