April 16, 2002
Shyrin Hirji, Project Manager Investigations and Enforcement Branch 5775 Yonge St. 8th Floor Toronto, Ontario, M2M 4J1
Submitted by fax: (416) 326-5256
Re: Notice of proposal for policy, registry no. RA02E0001 Administrative Monetary Penalties Implementation Policy
Dear Shyrin Hirji,
This submission is made with respect to the above-noted request for public comments on the Administrative Monetary Penalties Implementation Policy on behalf of Lake Ontario Keeper.
Lake Ontario Keeper is a charitable organization representing individuals in communities throughout southern Ontario, and a project of the Environmental Bureau of Investigation. Lake Ontario Keeper works to protect Lake Ontario and the interests of the communities in its watershed through the enforcement of environmental laws.
Our organization opposes the draft policy proposed by the Ministry of Environment on the grounds that it would further impair the ability of provincial environmental enforcement officers (the ?Investigative Enforcement Branch?) to carry out investigations, charge polluters and prosecute them in open court with the assistance of the Attorney General . We would go so far as to say that the proposed policy ?decriminalizes? much of Ontario?s environmental law process and reduces the role of general deterrence in preventing future offences.
For years, Lake Ontario Keeper and its sister organization, the Environmental Bureau of Investigation (EBI), have been concerned by government policies that limit the ability of provincial and federal environmental enforcement officers to carry out their functions. In September 2000, EBI wrote to the government of Ontario to express these concerns and to support an initiative by Brad Clark, MPP for Stoney Creek that would see the creation of an independent enforcement branch. Such a branch would have increased powers, including that ability to make objective decisions regarding when to investigate and prosecute offenders. (Appendix A)
The proposed Administrative Monetary Penalties Implementation Policy, clearly demonstrates a shift away from consistent enforcement of environmental laws and independence for environmental enforcement officers. This shift is surprising, as we are unaware of any public calls to reducing the current strict liability offences to less serious absolute liability offences, such as those included in the AMPs formula. We are also unaware of requests from the public to further limit the role of the MOE Investigative Enforcement Branch and to increase the government regulators? (Abatement Branch) discretionary powers as to when to investigate and enforce Ontario environmental laws.
The scheme to fundamentally change the way environmental laws are enforced in Ontario appears to have stemmed directly from the government regulators themselves, without support from the public or the environmental community. This lack of public support is particularly troubling in light of the fact that Administrative Monetary Penalties actually increase opportunities for the government to excuse illegal environmental conduct, avoid official investigations, and limit the discretion of the Attorney General regarding the laying of charges and/or the penalties at sentencing.
Issues such as past criminal conduct and environmental/health consequences ? which are currently sentencing issues, i.e., mitigating factors in sentencing convicted violators of Provincial Offence Act Part I or Part III charges ? would become factors in determining whether or not POA Part I or III charges should be laid at all. The proposed penalties policy provides new and weaker alternatives for what is accepted criminal conduct: an Administrative Monetary Penalty, a Control Document, an Amended Authorizing Document, or Voluntary Abatement Order, for example.
The assessment of the seriousness of the environmental violation will also be made behind closed doors in government offices instead of in open courts with accountable judges and prosecutors.
This is light-handed regulation of environmental crime. If the proposed policy is implemented, the government will effectively create a two-tier approach to enforcing criminal laws. Crimes such as theft, tax evasion, welfare fraud and impaired driving will be held to the highest standards of enforcement, while environmental crimes will be held to the lowest standard of enforcement. This certainly is not proper in light of the high priority the public places on the enforcement of environmental laws.
The nature of the proposed policy is also a direct contradiction of the present government?s formal position on crime, stated in its April 22, 1999 Speech from the Throne:
[Citizens] expect their governments and leaders to be clearly and unequivocally on the side of victims - not willing and eager to defend and make excuses for the criminals who prey on too many.
The Ontario government hears the concerns people have voiced about the prevalence of crime.
It understands that these concerns are real and legitimate - not fabricated or overstated.
For decades, governments across the country have tried to explain away criminal behaviour. This approach has failed.
Governments need to explain less and to deter more.
Your government is fighting crime - not turning its back and dismissing people's concerns.1
This approach to law enforcement, however, was not applied to environmental laws in 1999. Nor was it applied one year later, when the Ministry of Environment directed its staff to adopt a mandatory abatement approach, stating that the MOE needed ?a stronger/tougher enforcement policy.?2
The failure to implement this directive to follow mandatory abatement policies is singled out in the recent Report of the Walkerton Inquiry ? where The Honourable Dennis R. O?Connor reiterates the ineffectiveness of voluntary compliance several times in Section 9.4:
One of the serious consequences of continually using a voluntary approach to correcting the operating deficiencies at Walkerton was to reinforce Stan Koebel?s belief that the MOE requirements ? found in guidelines, not in legally binding regulations ? were not essential to the safety of drinking water.3
. . .
The MOE clearly told Mr. Koebel on many occasions that it considered his deficient operating practices to be matters of concern and emphasized the importance of conforming to its guidelines. However, its failure to use mandatory measures to ensure compliance likely undermined the seriousness of the message.4
In his conclusion to this section on Voluntary and Mandatory Abatement, Justice O?Connor underscores the ineffectiveness of relying too heavily on voluntary abatement:
The problem is not so much with the way in which the environmental officers responded to the samples, but rather with the MOE?s general failure to take mandatory measures.5 (emphasis added)
The concerns expressed by Justice O?Connor echo those expressed by Lake Ontario Keeper and EBI. Experience has clearly demonstrated that a visible respect for environmental laws, consistent enforcement, and the legal process are key elements of an effective deterrence program.
In addition to recommending that the proposed Administrative Monetary Penalties Implementation Policy be rejected, Lake Ontario Keeper and EBI further recommend:
1. The government develop a policy on compliance and enforcement that reflects the public?s desire to see environmental laws administered and enforced in a public forum that is fair, predictable, and consistent;
2. The government ensure that enforcement officials are given sufficient resources and mandate to investigate and prosecute polluters; and,
3. A new agency be set up as a means to improve the independence and authority of Ontario's environmental police while enhancing public confidence in law enforcement.
Lake Ontario Keeper and EBI also note that the new Environment Minister, Chris Stockwell, is well-known for his comments about the need to be tough on crime. We hope that he will see the hypocrisy in taking this stand if it applies to young offenders, welfare mothers, street kids, or drug possession and not to corporate, government or individuals engaging in illegal conduct which pollutes our environment.
As Justice O?Connor reminds us in his report, failure by the Ministry of Environment to reiterate to polluters the purpose of Ontario?s environmental laws and failure to ensure these laws are consistently enforced will undermine any other pleas for voluntary compliance.
Lakekeeper & Counsel
Lake Ontario Keeper
Cc: Chris Stockwell, MPP, Minister of Environment
Environment Commissioner of Ontario
1. April 22, 1999. Speech from the Throne. Delivered by Her Honour the Lieutenant Governor, Hon Hilary M. Weston. http://www.ontla.on.ca/french/hansard/house_debates/36_parl/session3/L001.htm (return)
2. O?Connor, Dennis R. (2002) Part One: Report of the Walkerton Inquiry. Queen?s Printer for Ontario. Page 327. (return)
3. O?Connor. Page 324. (return)
4. O?Connor. Page 332. (return)
5. O?Connor. Page 335. (return)
September 12, 2000
Michael Harris, MPP
Government of Ontario
Dear Mr. Harris:
Your government should adopt the initiative of Brad Clark, MPP for Stoney Creek and Parliamentary Assistant to the Minister of Health and Long Term Care, to establish an independent environmental police agency, which he has coined as the "Ontario Environmental Protection Agency" (OEPA). In a letter to Dan Newman, Minister of the Environment, dated June 19th, Mr. Clark proposed the new agency as a means to improve the independence and authority of Ontario's environmental police while enhancing public confidence in law enforcement.
The Environmental Bureau of Investigation -- a citizen-based group active in investigating and prosecuting pollution crimes -- supports Mr. Clark's initiative and urges you will move forward with this significant environmental protection proposal.
Today, your government's environmental investigators are frequently impaired and often paralyzed in carrying out their duties to enforce provincial and federal environmental legislation. The worst problem now afflicting Ontario's environmental enforcement program is the lack of an independent environmental police group. The group currently charged with this police function is the MOE's Investigation Enforcement Branch (IEB), a second tier agency within the Ministry of Environment. The actions or inactions of the Ministry of Environment Abatement staff?a first tier agency within the Ministry?often act to thwart the IEB. In our experience, Abatement staff often see polluters as "clients" and primarily rely on cordial, sometimes cozy, relationships to accomplish objectives. All too often these relationships compromise IEB investigations.
An independent environmental police agency, as proposed by Mr. Clark, would solve existing law enforcement problems. If the IEB was re-created as an independent police agency, as other policing agencies in Ontario are currently structured, the Province would be ensuring that environmental laws are enforced with the same commitment and independence we rely on for serving and protecting other important public law enforcement interests. Currently, Abatement staff of the Ministry of Environment receive thousands of "Occurrence Reports" each year. Abatement staff alone determine which reports will be investigated by IEB. Accordingly, thousands of occurrences each year are not forwarded to IEB to determine the grounds for investigation. An independent environmental police agency like OEPA would receive all occurrence reports and decide on the need for proceeding with an investigation.
Our ongoing investigation work and contact with the Ministry has shown us that even when the IEB gets an opportunity to investigate, there are many times when IEB investigations are in direct conflict with regional office Abatement staff and subsequently investigations are impeded or ended. Often the information that becomes most important to an investigation is not the nature or extent of pollution violations but whether or not Abatement staff have approved or been informed of but failed to control particular polluting activities. In these cases, the defences of "officially induced error" or "an abuse of process" are so readily available to the potential accused that the investigation is ended without charges being laid. Even charges that are pursued have been successfully challenged in court by the accused based on these defences.
If an independent Ontario Environmental Protection Agency is empowered with the responsibility for reviewing occurrence reports and determining the grounds for an official investigation, it will increase the arm's length between the police and the regulator and accordingly reduce the likelihood of arguments about "officially induced error" or "abuse of process" from thwarting efforts to protect public resources, particularly water and air. The merits of an investigation should be left to the determination of the investigative wing of government and the Crown Attorney's office and out of the hands of Abatement staff.
A police agency of any kind must be structured in a manner that ensures its independence and limits the defences of "officially induced error" and "abuse of process" from shielding those who would otherwise be found guilty. Measured against this test, the current IEB structure is inadequate. An independent environmental police agency, responsible for investigating occurrences and deciding on the appropriateness of charges will reduce the likelihood of conflicts and improve the abilities of the environmental police to do their job well.
Many other environmental groups not specialized in environmental law enforcement, have focussed their attention narrowly on the question of resources available to the entire Ministry of Environment. This concern has also been expressed by the official opposition. Mr. Clark's proposed restructuring goes well beyond this analysis. In our opinion, hiring more investigators without strengthening the underlying foundation of the investigative apparatus would be unlikely to meaningfully enhance Ontario's natural environment. Although our organization is concerned that legitimate environmental protection activities are adequately resourced, we are concerned that even the current level of resources available to environmental law enforcement are not being used effectively.
Mr. Clark's proposal to strengthen environmental policing in Ontario would treat pollution crimes in the way our environmental laws intend and would help restore public confidence in environmental law enforcement.
Mark O. Mattson Executive Director, Environmental Bureau of Investigation c: Dan Newman, Minister of Environment