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«FaOM SAWDUST TO TOXIC BLOBS AConsideration of Sanctioning Strategies to Combat Pollution in Canada STUDIES IN REGULATION AND COMPLIANCE Canada.~ ...»

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~"~ I':.'...."~,~,;~,. Ministere de la Justice

Department of Justice

1+1 Canada

Canada

FaOM SAWDUST TO

TOXIC BLOBS

AConsideration of Sanctioning Strategies to Combat Pollution in Canada

STUDIES IN REGULATION

AND COMPLIANCE

Canada..~

fROfy1 SAWDUST TO TOXIC BLOBS:

A CONSIDERATION OF SANCTIONING STRATEGIES

TO COMBAT POllUTI~ IN CANADA

Duncan Chappell U.S. Department of Justi~e National Institute of Justice

This document has bee~ !ep~od~ced ~xactly.as rerC~i~~~~~O:a::~

I!.

pers~n or organization originating ~~;~~r~faV~~wd~ n~t necessarily ~~d~~~e~~~~~~~iCf~~ d~~i~i~no~:hpolicies of the National Institute of Justice.

Permission to reproduce this copyrighted material has been d granted by • Department of JUstlce Cana a \0 the National Criminal Justice Reference Service (NCJRS).

Further reproduction outside of the NCJRS system requires permission of the copyright owner.

Canadian Cataloguing in Publication Data Chappell, Duncan From sawdust to toxic blobs: a consideration of sanctioning strategies to combat pollution in Canada (Studies in regulation and compliance) Text in English and French with French text on inverted pages.

Title on added t.p.: De la sciure aux pates toxiques.

ISBN 0-662-55687-9 DSS cat. no. 123-6/1-1988

1. Environmental law -- Canada.

2. Pollution -- Law and legislation -- Canada.

3. Liability for environmental damages -- Canada.

Pollution -- Canada.

4.

1. Canada. Department of Justice.

II. Title.

III. Series.

KE3619.C43 1988 C88-097017-0E 344.71 0463 The views expressed in this report are solely those of the author and do not necessarily represent the views or policies of the Department of Justice Canada.

Published by authority of the Minister of Justice and Attorney General of Canada

For additional copies, please contact:

Communications and Public Affairs Department of Justice Canada Ottawa, Ontario KIA OR8 (613) 957-4222 Cat. No. 123-6/1-1988 ISBN 0-662-55687-9 © Minister of Supply and Services Canada 1989 Printed in Canada

–  –  –

*This report does not contain a bibliography. The accompanying report entitled The Use of Criminal Penalties for Pollution of the Environment: A Selective and Annotated Bibliography of the Literature represents a full annotated bibliography of reference material used in the production of this report.

ii NOTE ABOUT THE AUTHOR

Dr. Duncan Chappell is a lawyer and criminologist with more than two decades of research experience in A ustralia, Canada and the United States. Born in Australia, he attended the University of Tasmania, where he received his B.A. and LL.B. in 1962.

In 1965 he attended the University of Cambridge and received his Ph. D. Dr. Chappell has held many professional positions, including Director of the Law and Justice Study Centre of Battelle Memorial Institute in Seattle, Washington, and was member of the Australian Law Reform Commission, Sydney, Australia. Since moving to Canada in 1980, Dr. Chappell has acted as a consultant to the Department of Justice Canada and the Sen fencing Commision on matters associated with the imposition of punishment.

From 1982 to 1984, he served as Chairman of the School of Criminology at Simon Fraser University, and is currently a tenured professor here.

iii PREFACE

I live now in British Columbia where environmental concerns are very much part of contemporary life. But several years ago on the smalI and sparsely populated island of Tasmania, a very distant part of the world where I grew up, the state government sought to construct a dam for the production of hydro electric power.

The dam was to be located in and flood much of au unspoiled wilderness in Southwest Tasmania, a region designated as a World Heritage Site under international agreement.

The controversy that this dam proposal created in Tasmania, and in Australia at large, is stiII not forgotten. It was a controversy that produced rifts in families, including my own, about the relative merits of economic development and environmental protection. It was also a controversy that deeply influenced the views " of many people, including me, about the need to find some way of saving environments like Tasmania's, already ravaged by a century or more of relatively unfettered exploitation, from further despoliation.

I mention alI of this only because it seems to me that no concerned individual, whatever their professional or disciplinary affiliations, can remain completely detar,hed from issues like those explored in this paper. My own affiliations are largely legal and criminologicl;l.l. Neither in the capacity of lawyer nor criminologist have I previously been exposed in any depth to the vast literature which exists already in this area. Reading this literature has been a most stimulating personal learning experience, as has the opportunity to meet and discuss many questions with people who are steeped in knowledge about the environment and its protection. To these people, and to those who are acknowledged below, I wish to express my warm thanks for the assistance they have provided.





A special mention must be made of four people without whose help this paper could not have been completed. First, and foremost, lowe a deep debt of gratitude to my friends Gilbert Geis and John Braithwaite, who so generously provided me with guidance and advice. Second, to Albert Currie, the Department of Justice project monitor, I express my appreciation for his encouragment and optimism about a study which seemed forever delayed by funding. Thirdly, I am very grateful to Nola Jones who showed such patience and perseverance in word processing this document. My final thanks go to my wife, Rhonda, who participated in every aspect of this study and whose constant encouragement and support has been appreciated enormously.

Responsibility for everything in this paper is, of course, mine alone.

Jean-Fran90is Belanger Environment Canada Library, Ottawa Sylvia BelI Simon Fraser University Library Anthony Boydell Environment Canada, Pacific and Yukon Division

–  –  –

Constance Carter Ubrary of Congress Ron Clarke Ministry of the Environment, Ontario Albert Currie Department of Justice Canada Judy Deavy Department of Justice Library, Vancouver Don Dewees University of Toronto Herb Edelhertz Consultant, Seattle David Estrin Environmental Lawyer, Toronto Andrew F;:,bro Environmental Protection Service Ubrary, Vancouver Brent Fisse University of Sydney Law School Robert Franson University of British Columbia Gilbert Geis University of California, Irvine Peter Grabosky Australian Institute of Criminology Arthur Graham Department of Justice Canada David Heeney Ontario Waste Management Corporation Joan Honeywell Vancouver Courthouse Library Barbara Huber

–  –  –

Lynne Huestis Environmental Consultant, Vancouver Terrell Hunt United States Environmental Protection Agency Masami Ishida Japan Energy Research Institute, Tokyo Herbert Johnson United States Environmental Protection Agency John Kramer Pennsylvania Sentencing Commission Douglas Macdonald Canadian Environmental Law Research Foundation Mark McKenney Ministry of the Environment, Ontario Dale Miller Princeton University Mary Mitchell University of British Columbia Law Library Barbara Morrison United States Environmental Protection Agency Lav.. Library Peter Nemetz University of British Columbia Elissa Parker Environmental Law Institute, Washington, D.C.

Brian Phillips Simon Fraser University Library Harry Poch Metro Toronto Legal Department Charles Reasons University of Calgary James Rochow University of Pennsylvania

–  –  –

Kristina Rose National Criminal Justice Reference Service, U.S. Department of Justice Frank Scarpitti University of Delaware Hank Schilling United States Environmental Protection Agency Clifford Shearing liniversity of Toronto Malcolm Smi th University of British Columbia Judson Starr United States Department of Justice Phillip Stenning University of Toronto John Swaigen Ontario Ministry of the Environment Andrew Thompson University of British Columbia Toby Vigod Canadian Environmental Law Association Aidan Vining Simon Fraser University Cheryl Wasserman United States Environmental Protection Agency Paul Wilson Australian Institute of Criminology

–  –  –

The Work of the Law Reform Commission The genesis of the present studyl is to be found in the work of the Law Reform Commission of Canada (hereinafter LRCC) and in particular in the Commission's recently published Working Paper (hereinafter WP44) on the subject of Crimes Against the Environment. 2 This paper, which reports upon one of' a continuing set of studies being conducted by the LRCC in its Protection of Life Series, contains a "novel, urgent and in some respects controversial proposal"3 to add a new offence of a crime against the environment to the Criminal Code of Canada.

The LRCC, in an introductit;t1 to WP44, notes that the paper has already been extensively reviewed by "a wide range of interests and expertise.,,4 It is also apparent from a reading of WP44, as well as the body of relevant literature previously produced by the LRCC on this topic, 5 that a prodigious amount of legal and allied research effort has already been devoted in Canada to an analysis of the many complex and difficult issues associated with the protection of the environment. 6

The Issues

Of these issues, perhaps none is more complex, difficult and controversial than that of deciding upon an appropriate philosophy or approach to such protection. Put in its most simple and direct form, the choice to be made is between a philosophy or approach that emphasizes ilpersuasion", and one that stresses "punishment". In Chapter 2 of this report, this choice is explored in more depth, and socio-legal theory and language are used to distinguish the enforcement strategies and styles that flow from these differing approaches. Although very few involved in what is an ongoing debate about the relative merits of these approaches would argue solely for one or other philosophy,1 their influence can be identified clearly in existing environmental protection policies and practices in Canada and abroad. 8 For instance, it has been stated recently by a senior official of Alberta Environment that that agency's basic approach to protection is, the concept of negotiating compliance. Negotiating compliance is not a high profile endeavour. The fact that it does not attract a great deal of attention may leave the false impression that it is not effective.

Negotiating compliance stems from the basic premise that the legal system is simply not an efficient way of achieving compliance. 9 In contrast, a senior official of the Ontario Ministry of the Environment has

argued strongly for greater use of prosecution rather than persuasion or negotiation:

Prosecution is only one of many potential enforcement tools, and each tool has its place. Prosecution is not the appropriate response to all situations, but I do think prosecution is under-utilized. This failure to prosecute in appropriate circumstances, in my opinion, leads to extensive delays in pollution abatement and erodes the credibility of law enforcement agencies.

...1 have seen numerous examples of prosecution working as an inexpensive, fast way of accomplishing pollution abatement measures. I have seen cases where requests by the Ministry of the Environment have fallen upon deaf ears for years, but the steps requested were taken within a short time after laying charges. IO These statements not only illustrate what seem to be quite different approaches being taken to the protection of the environment in two of Canada's provinces - they also point to competing views concerning the most effective methods of securing compliance with various protection measures. Thus, in Alberta, it would seem the legal system is not seen as an "efficient way of achieving compliance," while in Ontario it is. Further, as will be discussed in some detail in Chapter 2, there is quite compelling evidence in the Canadian political arena of a contemporary shift in approach towards achieving compliance with environmental regulations by the use of prosecution in preference to other less threatening procedures.

The Object of the Present Study

Given this background, the present study has been commissioned by the Department of Justice to conduct a comprehensive review of the jurisprudential and social sciences literature relating to "the use of criminal penalties for pollution of the environment." n Two essential components of this review are to be the identification of the principal arguments for and against the use of such penalties, and the identification of any empirical evidence that direc'i.iy or indirectly bears upon this issue. 12 The study is also required to "assess the applicability of the theoretical arguments and research findings for the Canadian context,,,13 and to "identify further empirical work which should be undertaken before the general issue of instituting a Criminal Code offence against environmental pollution can be decided." 14 The study represents a formidable challenge, which has been made no easier by the short time frame in which it has had to be conducted. 15 In particular, the pressures of gathering and analyzing the enormous volume of literature encompassed by the study has precluded interactive sharing of what follows with knowledgeable persons in the field. As such, this document has been labelled a discussion paper, which will undoubtedly benefit substantially from peer review and criticism.

An Outline of the Discussion Paper

In the balance of this chapter, two principal issues are discussed. First, some further clarification is offered of the perceived scope of the study and especially of the interpretation given to the terms "crimina) penalties" and. "criminal law".



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