«FaOM SAWDUST TO TOXIC BLOBS AConsideration of Sanctioning Strategies to Combat Pollution in Canada STUDIES IN REGULATION AND COMPLIANCE Canada.~ ...»
The situation revealed by the toxic blob affair focused attention upon the regulatory controls exerted over the powerful chemical industry in Canada. l06 It is an attention that has undoubtedly influenced the attitudes expressed earlier in this paper by both the Canadian public and politicians concerning the need for much more rigorous environmental regulation and enforcement in areas like the management of toxic chemicals.1° 7 In a December 1986 speech announcing the proposed remodelled Environmental Protection Act, the federal Minister of the Environment referred to the government's resolve to give the country "cradle-to-grave" protection from such chemicals. 108 Those who thwarted this resolve would face harsh treatment, the
Sanctions will include million-dollar-a-day fines. But more than fines are needed because they affect the balance sheet but not necessarily the polluters themselves. The new law will also place responsibility squarely where it belongs - on the shoulders of the chief executive officers and company presidents who commit violations or who permit them. They will be subject to jail sentences of one to five years. And the government intends to enforce the law with vigor. 109 The Minister went on to repeat an assertion that he had made in an earlier speech, referred to above, that "the worst white collar crime in Canada today is not embezzlement or tax evasion but, rather, pollution",u° Regrettably, the Minister provided no evidence to support this assertion. It may be correct but the current information available from official sources, as well as from criminological research, regarding this facet Df white collar crime in Canada is minimal. lll No statistics are maintained on a national basis that portray the nature and dimensions of polluting behaviours that may be viewed as criminal, while the data published about the individual prosecutions conducted under the rubric of federal and provincial environmental regulations are extremely sketchy.112
So Who Are the Principal Polluters?
Given these data deficiencies, what general conclusions should now be drawn regarding the identity of the major players performing on the Canadian pollution stage? Based upon the information that is available both from sources in this country and abroad, it would seem safe to assume that these players comprise four reasonably distinct groups who operate across a range of geographic areas, and whose structures are determined by a variety of legal and allied rules. These groups comprise corporations; small businesses run principally by individuals or in partnership;
public agencies; and criminal organizations. Each of these groups requires a brief analysis at this juncture since they present, as will be seen in more detail in succeeding chapters, rather different problems for regulating polluting behaviours.
Corporations. Much of the focus so far of this chapter, and of contemporary (1) concern about pollution, has been directed towards this group. It is a group that represents a heterogeneous range of businesses and industries, whose operations may span continents or be limited to a single town or district. 113 The concentration of corporate power and control in the Canadian economy is well documented. 114 For example, in the late 1970s the 100 largest nonfinancial corporations in the country produced approximately the same volume of sales as 640,000 businesses with less than $2 million in annual sales,115 For criminologists, misconduct by corporations has become an expanding and important area of interest and research,u6 It is a form o~· misconduct that is frequently encompassed within the broader and more popularly understood term of "white collar crime".117 As originally conceived in the late 1930s by the inventor of the term, the American sociologist Sutherland, white collar crime was defined as "a crime committed by a person of respectability and high social status in the course of his occupation."uB This definition possesses problems, in part because of its reference to the respectability and social status of offenders, and much effort has since been devoted to refining this concept towards a narrower focus on organizational or corporate crime.1 19 While legal scholars 120 have tended to devote substantial and much-needed attention to the rationale and methods of attaching specific criminal responsibility to corporations and their officers, criminologists have been involved more with broader questions concerning identification, description and mitigation of the factors that are believed to lead corporations to engage in illegal beha viOUr. 121 In the balance of this paper it is principally the criminological perspective that will be emphasized.
Small Business. The size and strength of the nation's major corporations often (2) make them more visible and ready contenders for publicity and study when they engage in polluting behaviour than the far more numerous but much smaller and often unincorporated businesses that form the backbone of most economies.
The relative contributions made by this group of performers, scattered across the country, to the overall pollution problem in Canada remains unknown. In the United States, one study conducted in Southern California suggested that the small businesses that were the least responsive to regulatory control of polluting behaviours were dry cleaners, service stations and water heater manufacturers. 122 This list may do no more than reflect the types of businesses operating in a particular urban area, but it is obvious that an activity like dry cleaning, which requires the use of toxic chemicals, will also have associated storage and disposal problems. Similar problems will almost certainly arise in rural areas where toxic chemicals are in regular use as part of modern agricul ture.
Public Agencies. Little is known about the polluting behaviours of the numerous (3) Crown corporations and other public agencies, both large and small, that perform a wide range of services and functions in Canada. 123 The most extensive public debate about such behaviours has occurred in regard to the nuclear industry.124 But other public agencies have from time to time reported polluting activities. For example, a recent OMOE study revealed that in 1985 one quarter of Ontario's municipal sewage treatment plants broke three basic pollution guidelines, while almost two thirds failed to meet international treaty obligations to reduce the discharge of phosphorus. 125 In addit.ion, 99 of the province's 403 sewage treatment plants failed to meet their annual pollution targets, including 58 operated by OMOE, the regulatory agency responsible for setting the targets in the first place. 126 Criminal Organizations. Law enforcement officials in the United States have (4) expressed concern about evidence that various organized criminal groups have begun to be involved in the illicit disposal of toxic wastes. 127 A contemporary study of these claims by an investigative journalist, assisted by a criminologist, concluded that there is little doubt that part of the waste industry has been penetrated, dominated, and controlled by organised crime.... [But] org~nised crime is not the only cUlprit involved in this extraordinarily dangerous development. Responsibility for the situation also rests with many generators of toxic and hazardous waste. Some of the largest and most prestigious companies in the petrochemical industry knowingly deal with organised crime disposal firms because they provide a cheap way of getting rid of their most harmful wastes.
Government too, has failed in its protection of the public welfare.
The laws passed to regulate the toxic and hazardous waste disposal industry have enough loopholes in them to allow the biggest tankers through. And if that isn't enough encouragement for organised crime and its industrial partners, the almost total lack of meaningful enforcement is. 128 It is not known if any similar trend has been observed by Canadian law enforcement officials, or whether midnight dumping of toxic waste by unscrupulous individual entrepreneurs is a common practice in Canada. Yet it is this group of polluters, assuming they exist, who fit most readHy and immediately into the "true" or "real" crime profiles suggested by the LRCC, and those contained in the current draft of the federal Environmental Protection Act.
It is to the arguments for and against the use of sanctioning strategies like these to combat polluting behaviour among all four groups of players, and others that may emerge, that this analysis now proceeds.
,Justifying a New "Real Cl'ime" An appropriate starting point for a discussion of the use of sanctioning strategies in environmental regulation is the LRCC and its proposal for the inclusion in the Criminal Code of a new "real crime" against the environment. The LRCC's justification for this proposal is perhaps best expressed in the following and quite lengthy passages taken from WP44. 129 What is not being claimed is that this proposal represents the whole legal response to environmental pollution, or that it would always be the best response. On the contrary, in our view, resort to the Criminal Code should always be a last resort. In most cases, other avenues will be more appropriate, whether civil remedies, regulatory statutes and controls, or various administrative law incentives and sanctions.... However, in our view there is a serious gap in that one important goal, one not a major focus of either civil remedies or regulatory/administration approaches, is not really provided for. Put simply, it is the important one of value underlining, by means of repudiating and deterring instances of gross environmental pollution.1 3o
The LRCC went on t3 explain in more detail what it meant by "valueunderlining."
One of the strongest ways available to us as a society to say in effect "we repudiate and abhor this behaviour" is to say it clearly and unambiguously in the Criminal Code. Not to do so about instances of gross pollution with no overriding social justification could be taken to imply that we as a society do not, in fact, consider it seriously wrongful. A related goal and standard by which to measure effectiveness is that of deterrence.
Repudiation and deterrence are inevitably related. Whereas the motivating mechanism associated with repudiation is the reinforcement of moral inhibitions, the motivating mechanism in deterrence is the fear created by the threat of detection and conviction. If the deterrence is effective, fear should have negative and positive effects: negatively individuals, groups, agents and employees would be cautioned to refrain from gross environmental pollution likely to lead to charges against them; positively, they would thereby be further motivated to take steps to put in place better policies, training, supervision, education, and pollution prevention mechanisms and controls, in order to guard against future environmental offences. 131 With the important and notable exception, to be discussed in a moment, of the symbolic message conveyed by the placement of a new crime against the environment in the Criminal Code, these words of the LRCC seem to express in an ek.'juent and succinct way the principal rationale for the use of all forms of sanctioning strategies in the protection of the environment. At the very core of these strategies is a belief that they will influence polluting behaviours in a favourable way through the mechanism of deterrence. A similar rationale, of course, drives much of what is done in the criminal justice system and a very extensive literature now exists regarding the supposed and proven effects of deterrence. 132 Selected portions of this literature will be considered shody. But first more needs to be said about the symbolic function of the criminal law.
Svmbolism and the Criminal Code
Throughout more than a decade of review of various facets of the criminal law in Canada, the LRCC has been guided by the principle that this law must reaffirm fundamental values, and concern itself with "real crimes" only. The Criminal Code should, according to this view, contain only such acts as are wrong and deserving of punishment. All other offences should remain outside the Code. I33 This classification
is not a mere formality in the mind of the LRCC:
It is not just calling some offences 'crimes' and putting them in the Code and calling others 'violations' or some other name and putting them somewhere else. Rather, it means dealing with the two under two distinct regimes. Real crimes need a criminal regime, violations a non-criminal regime.... Stigma, the possibility of solemn trial, imprisonment - these are the hallmarks of the criminal regime. They have to be reserved for real crimes. 134.