Most of the “Open for Business Act” changes to Ontario environmental laws won’t take effect till next year or so. But one important change has already happened: they may be able to make you talk.
For more than 20 years, there has been an uneasy tug of war between the Ministry of the Environment’s desire to obtain evidence of environmental offences, and the reluctance of those facing the ministry’s enforcement muscle to give them that evidence. The courts have upheld the rights of individuals and businesses to decline to answer such questions, except where there is a current emergency. That is, where the ministry requires information right now to deal with a spill or other environmental crisis that is underway, the businesses and individuals have had to comply. But where the ministry is simply seeking to force people to confess details of problems that have occurred in the past, people have had a right to remain silent. This was upheld by the Ontario Divisional Court most recently in Branch v Ministry of the Environment.
The Open for Business Act has therefore added a new section to the Environmental Protection Act and the Ontario Water Resources Act. The new section allows any provincial officer “for the purposes of determining compliance of a person with the Act or the regulations” to require the person to respond to reasonable inquiries.
No one knows yet what this means. The Canadian Charter of Rights and Freedom protection against self-incrimination will undoubtedly be raised to limit scope of the new power. Courts have already ruled that the normal powers of inspectors under, for example, Section 156 of the EPA, don’t apply to investigators once they have reasonable and probable grounds to believe that an offence has been committed. Presumably, the same limit will apply to the new section. But that charter protection will be of little comfort to individuals, municipalities, and businesses if they can be forced to confess, in detail, by an inspector, who then hands the resulting statement over to an investigator for use in a prosecution, or for environmental penalties.
Other obvious questions about the new provision include:
- What inquiries are “reasonable”?
- How quickly must they be answered?
- How detailed must the answer be?
- Must the questions or answers be provided in writing?
- Are there any circumstances in which an investigator can use the new power?
- Can the provincial officer demand details of all potential defences to a future charge?
- Should the person state that the answers are not voluntary, and object to the potential use of these responses against them for enforcement purposes?
- Should the person state that the provincial officer is forcing them to answer the question before they have been able to complete their investigation, that the answers provided are provisional and may not be correct?
- Should the person include a claim for confidentiality for the purpose of subsequent freedom of information requests?
The one thing that is clear about the new power is that individuals, municipalities and businesses faced with a demand for information need to consult their lawyer before answering the questions. Once an answer has been given, it may never be possible to take it back.