Environmental prosecution Lawyers in Canada

Section 272(1) lists offences that carry the Act's heaviest penalties. They include failing to comply with an obligation set out in listed sections, contravening a prohibition or a condition of a permission, contravening an order, direction or decision of a court made under the Act, and, knowingly, providing any person with false or misleading information, results or samples on a matter related to the Act or the regulations.

Section 272.1(1) covers the rest. Everyone commits an offence who contravenes any provision of the Act, other than a provision whose contravention is an offence under section 272(1). It also covers negligently providing false or misleading information on a matter related to the Act. The words knowingly in one section and negligently in the other are different words, and a lawyer can explain what each means for a charge.

Three prohibitions carry most of the Fisheries Act's charges. Section 34.4(1) says no person shall carry on any work, undertaking or activity, other than fishing, that results in the death of fish. Section 35(1) says no person shall carry on any work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat. Section 36(3) says no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish.

Each prohibition has exceptions, such as an activity the Minister authorizes. Section 40(1) makes a contravention of section 34.4(1) or 35(1) an offence, and section 40(2) does the same for section 36(3).

Section 11(d) of the Canadian Charter of Rights and Freedoms gives a person charged with an offence the right to be presumed innocent until proven guilty, so the prosecutor is the side that has to prove the charge. The elements come from the words of the section charged.

For the Fisheries Act offences, section 40(5) says that the death of fish takes place whether or not any act or omission resulting in the death is intentional. It says the same of a harmful alteration, disruption or destruction of fish habitat. Whether the facts of a particular case meet the words of the section is a question for the court, and a lawyer can explain it.

Under the Canadian Environmental Protection Act, an individual who commits an offence under section 272(1) and is convicted on indictment faces, for a first offence, a fine of not less than $15,000 and not more than $1,000,000, or imprisonment for a term of not more than three years, or both. For a second or subsequent offence the fine is not less than $30,000 and not more than $2,000,000, or the same term of imprisonment, or both. On summary conviction a first offence carries a fine of not less than $5,000 and not more than $300,000, or imprisonment for not more than six months, or both, and a later one a fine of not less than $10,000 and not more than $600,000, or the same six months, or both.

A person other than an individual or a small revenue corporation faces separate ranges under section 272(3). For a first offence on indictment, the fine is not less than $500,000 and not more than $6,000,000. Section 273 lets the court impose a fine below a minimum if it is satisfied, on the evidence, that the minimum would cause undue financial hardship, and it must give reasons.

Under the Fisheries Act, an individual convicted on indictment of an offence under section 40(1) faces, for a first offence, a fine of not less than $15,000 and not more than $1,000,000. For a second or subsequent offence the range is $30,000 to $2,000,000, or imprisonment for a term not exceeding three years, or both. On summary conviction the first-offence range is $5,000 to $300,000, and for a later offence $10,000 to $600,000, or imprisonment for a term not exceeding six months, or both. Section 40 also lets the court impose a fine below the minimum on the same hardship ground. These are limits set by the Acts. They are not a prediction of any result.

Both Acts contain a due diligence defence. Under section 283 of the Canadian Environmental Protection Act, no person shall be found guilty of an offence under the Act if the person establishes that they exercised all due diligence to prevent its commission. Section 78.6 of the Fisheries Act says no person shall be convicted of an offence under that Act if the person establishes that they exercised all due diligence to prevent the commission of the offence, or reasonably and honestly believed in the existence of facts that, if true, would render their conduct innocent.

Charter rights also apply. Section 10 gives everyone on arrest or detention the right to be informed promptly of the reasons and the right to retain and instruct counsel without delay and to be informed of that right. Under section 24(2), evidence obtained in a manner that infringed Charter rights is excluded if admitting it would bring the administration of justice into disrepute.

A charge against a company can also reach the people who run it. Section 280(1) of the Canadian Environmental Protection Act says that if a corporation commits an offence, any director, officer, agent or mandatary who directed, authorized, assented to, acquiesced in or participated in it is a party to and guilty of the offence, whether or not the corporation has been prosecuted or convicted. Section 78.2 of the Fisheries Act uses much the same words for an officer, director or agent of a corporation.

In Ontario, every charge under the Criminal Code, the Controlled Drugs and Substances Act, the Youth Criminal Justice Act and most other federal statutes starts in the Ontario Court of Justice, and about 95% are completed there. A lawyer can say how that applies to a particular charge.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. Duty counsel can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, where a lawyer's licence can be looked up. The Ontario lawyers on this site are listed by city. Nothing on this page ranks or recommends any of them.