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Successful non-suits of environmental prosecutions are rare.   A non-suit is granted only when the Crown has failed to offer any evidence, no matter how manifestly unreliable, of the essential elements of the offences charged.

I was therefore particularly pleased to achieve three non-suits on October 18. Judge Mackey of  the Ottawa Court of Justice dismissed  three charges against a family-owned waste management company, the president and general manager. All three charges stemmed from Ministry of the Environment  inspections of the Lacombe Waste transfer site, and involved unwarranted allegations of mishandling of hazardous waste.  The ministry officer insisted, for example, that certain wastes were stored in improper locations, even though they were exactly where the certificate of approval directed them to be. In a second count, the officer demanded that  a used container be treated as hazardous waste, despite the specific rule in regulation 347 that a container with less than 2.5 cm of waste in the bottom is legally “empty” and is not hazardous waste. In the third case, the officer insisted that other containers were hazardous waste without checking whether there was anything in them.

The most interesting legal point was the question of onus of proof. Justice Mackey accepted my submissions that the Crown has the onus of proving there is more than 2.5 cm of waste in a container, if it wishes the contents of the container to be considered as hazardous waste.  The trial is continuing on the remaining charges.

In my view, the Crown should never lose a non-suit, because they should not bring  doubtful cases to trial.  When I was a prosecutor, it was a point of pride not to drag defendants to trial unless we had admissible evidence on every key point.  It was our view that bringing prosecutions without clear evidence wasted both public and private resources, and tended to bring the law into disrepute.   The Crown has many other tools for  dealing with lesser matters, including warnings, orders, and environmental penalties.

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