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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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Secondly, a brief description is provided of the methods used to identify and obtain relevant literature to be incorporated in the study.

Chapter 2, as already indicated, is concerned with a more detailed review of the philosophies which guide environmental regulation in Canada. It is also a chapter that is intended to place proposals like that of the LRCC for a new "crime against the environment" in a broader and contemporary social and political perspective.

In Chapter 3 a general review is made of the principal players who are believed to occupy the pollution stage in Canada, and of their behaviour. Chapter 4 is concerned with a discussion of the justification offered for subjecting certain of these players to criminal sanctions. The experience gained with the implementation of criminal laws, similar to those proposed in Canada, in Japan and Germany is also considered. In Chapter 5 the central issue of deterrence is discussed in regard to the application of sanctioning strategies against the four principal groups thought to be responsible for the majority of polluting behaviours in Canada - corporations, small businesses, public agencies and criminal organizations. Chapter 6 is concerned with an exploration of the enforcement dilemmas associated with the use of sanctioning strategies in the regulation of the environment. In all of these chapters, the applicability of the arguments and research findings for the Canadian context is discussed.

Chapter 7 concludes the paper with a series of suggestions for further empirical work that should be undertaken in Canada to close data gaps and assist policy makers in reaching decisions about law reform.

"Criminal Penalties" and "Criminal Law" The contractual mandate for the present study refers consistently to the use of "criminal penalties" and "criminal law" in dealing with pollution of the environment. 16 To a lawyer this terminology has a specific and technical meaning that is far too narrow and constraining for current purposes. 17 For example, in Canada a strict interpretation of these terms might restrict analysis to federal criminal laws and penalties, since only the federal government has the authority under Section 91 of the Constitution Act to enact such laws in this country.18 It might even be asserted that the terms apply only to offences and sanctions contained in the nation's Criminal Code, because "true crimes" are to be found in this source alone. 19 In reality environmental control in Canada is governed by an extremely complex maze of federal, provincial and municipal dictates ranging from the Criminal Code, and an offence like common nuisance,2o to bylaws concerned with discharges into municipal sewersY These dictates may involve three categories of liability

- criminal, where the onus is on the Crown to prove mens rea;22 absolute liability, where it is not open to the accused to argue that he or she was free of fault and thus escape responsibility;23 and strict liability, where an accused may avoid culpability by proving that he or she took all reasonable care. 24 The sanctions provided for thoseoconvicted of offences under these dictates can also vary widely.

Until very recent times, by far the most common maximum penalty available has been a fine. 25 Despite the presence of penalties like fines and the possibility of prosecution for numerous breaches of environmental regulations, lawyers have traditionally viewed the vast majority of these dictates as administrative rather than criminal in quality.26 This attitude has been reinforced by the fact that responsibility for both the

--~----------administration and enforcement of these dictates has rested with agencies other than the public police. 27 As will be seen in later chapters, such an attitude has proven to be a stumbling block in providing effective enforcement of many environmental regulations.

Amidst these many legal complexities, what approach should be taken in this study to the definitional issues that so vitally affect its potential scope? A review of the socio-Iegal and criminological literature dealing with environmental regulation suggests that the most appropriate definitional course to steer is one that concentrates upon the style of social control involved rather than the technical categorization of laws. 28 Black's classic formulation of dominant styles of law distinguishes between conciliatory and penal t~'pes of control. 29 A conciliatory style is a method of "social repair and maintenance, assistance for people in trouble," while a penal style is concerned with the prohibition of "certain conduct and it enforces its prohibitions with punishment.,,3o As will be seen shortly in Chapter 2, Black's dichotomy of control has been advantageously applied by Hawkins 31 to the development of a classification of environmental enforcement strategies and styles. It is Hawkins' classification that guides the present study, and consequently the search for arguments and research regarding the use of "criminal penalties" and "criminal laws" for dealing with pollution of the environment encompasses a much broader range of material and views than that typically referred to by lawyers. The search is, in essence, for arguments and research regarding the use of sanctioning strategies and a penal style in enforcing environmental regulations in contrast to those involving compliance strategies and a conciliatory style.

Gathering Information for the Study

This paper is based, as the original Department of Justice commission required, almost exclusively on a review of the international literature relating to the object of the study.32 The search for relevant literature has been comprehensive, timeconsuming and frequently frustrating. 33 An immense and multidisciplinary general body of published knowledge has been generated over the past two decades about environmental issues. 34 The majority of this literature has originated from North American sources, but increasingly, contributions to this knowledge base have come from abroad, including Europe,35 the Far East,36 and the South Pacific. 37 The process of cuII.ing from this general body of knowledge specific items appearing in the jurisprudential and social sciences literature that deal directly with "the use of criminal penalties for pollution of the environment" (as defined above) has been greatly assisted by consultations with a number of acknowledged experts in the area of environmental law and white collar crime. 38 As w.iII become apparent from the citations provided in succeeding chapters, it is principally in the socio-Iegal and criminological literature that the most relevant and helpful information is to be gleaned concerning environmental enforcement strategies and styles.

Socio-Iegal scholars and criminologists, in particular, have become increasingly interested in the effectiveness of different forms of sanctions in controlling deviant behaviour. 39 This interest has extended to white collar, or corporate crimes, many of which appear to be similar to or even overlap with environmental offences. 40 A particularly strong empirical research focus in this area has emerged at a number of institutions, including the Australian Institute of Criminology in Canberra, the Centre for Socio-Legal Studies in Oxford, the Max Planck Institute in Freiburg and the Program in Social Ecology at the University of California in Irvine. 41 In Canada, in contrast, empirical research in this area has to date been very limited in scope,42 and there is, as suggested in Chapter 7, a need and demand for a range of research studies to be conducted on a variety of topics. One of these topics is the provision of a national assessment of the predominant enforcement strategies and styles that currently govern the regulation of the environment in Canada. An introduction to this topic is to be found in the next chapter.

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Making Canadian Legal History: Imprisoning Polluters - Or Almost!

In May 1986, Keith Alexander, the president of a company operating an electroplating plant in Ontario, entered the annals of Canadian legal and criminological history by becoming the first person to be sentenced to jail and almost the first to serve such a sentence, after persisteJ1tly polluting the environment. 43 Although the sentence was subsequently upset on appeal, Alexander's dubious fame came after he and his company, Jetco Manufacturing Ltd. (Jetco), were found to have been in contempt of a magistrate's order to stop discharging waste water containing excess amounts of nickel, cadmium and cyanide into Metropolitan Toronto's sewers.44 Since 1974, Jetco had been convicted of 69 water pollution violations of this type and fined $97,950. 45 Mr. Alexander's stated attitude to these fines was that they were "licensing fees for doing business.,,46 In sentencing Mr. Alexander to one year's imprisonment for flagrant and consistent flouting of a court order, and fining Jetco $200,000 for the same contempt, Mr. Justice Montgomery of the Supreme Court of Ontario said that the message was clear to these and all other polluters - "clean up or close Up.,,47

Compliance vs. Sanctioning Strategies

The fate almost suffered by Mr. Alexander may well be symbolic of a still emerging and most significant change in the emphasis given to different enforcement strategies to regulate the environment in Canada. It is a change that is perhaps best categorized in colloquial terms as "getting tough with polluters." Evidence to support the existence of this shift in enforcement emphasis is presented below. First, however} it is important to describe and explain a number of conceptual issues that help to provide a broad framework for this chapter and the paper at large.

In general, socio-legal scholars have suggested that two major systems or strategies can be identified in the enforcement of regulations. 48 The first of these has been termed a compliance strategy, characterized by a conciliatory style of enforcement, while the second has been called a sanctioning strategy, characterized by a penal enforcement style. 49 The nature of these strategies and styles is succinctly captured and described in the following passage taken from Hawkins, one of the leading scholars involved in researching and writing on the subject of environmental regulation.

Central to a sanctioning strategy is a concern for the application of punishment for breaking a rule and doing harm. Conformity with the law may be the consequence of this, but that is not the main issue. The formal machinery of law is crucial to this concern, and exacting a legal sanction by means of the legal process is a relatively routine matter. Enforcement agents who adopt a compliance strategy, however, are preoccupied with securing conformity to a rule or standard when confronted with a problem.

Compliance strategy se~ks to prevent a harm rather than punish an evil.

Recourse to the legal process here is rare, a matter of last resort, since compliance strategy is concerned with repair and results, not retribution.....

These differences are reflected in enforcement style. A penal style is accusatory and adversarial.... In a compliance strategy, on the other hand, the style is conciliatory and relies upon bargaining to attain conformity. 50 Hawkins is careful to explain that these strategies and styles should not be viewed as polar opposites, but rather as "shifting points on a continuum.,,5! It is important to keep this explanation in mind when considering contemporary developments in the regulation of the environment in Canada.

Categorizing National Enforcement Strategies

The traditional philosophy and practice of environmental regulation in this country was recently characterized as a "relatively closed, consensual and consultative approach with a small number of prosecutions.,,52 This characterization, which is clearly very similar to the compliance strategy and conciliatory style described above, was made in the course of a comprehensive comparison of Canadian and United States approaches to the regulation of the environment. In the United States, it was suggested, this approach was more adversarial and litigious, with greater reliance placed "on formal rule making, review procedures, and broadly mandated pollution control standards. I053 One feature of this approach has been the increasing imposition of substantial penalties upon convicted polluters, including prison terms of up to five years 54 and fines amounting to many millions of dollars.55 It is an approach that has an obvious resemblance to the sanctioning strategy and penal style identified earlier.

The use of harsh penal sanctions to deal with polluters in the United States is still a relatively recent phenomenon, and much of the regulatory activity in this area remains conciliatory in nature. 56 However, even with a U.S. federal administration in office throughout the 1980s that has been antithetic to environmental regulation, public attitudes supportive of strong measures to protect the environment have had a political impact. 57 These attitudes have been fostered by a growing awareness of the gravity of many pollution offences, as shown by a recent American survey.58

Public Attitudes and Political Action

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