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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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This "value consensus" driven model of the criminal law, as it has been labeI1ed, offered by the LRCC has met with less than universal approval, not least because it fails to deal adequately with the question of how agreement can be reached in a pluralistic society about what "fundamental values" should be reflected in the Criminal Code. 135 In regard to pollution, however, these values now seem to have reached a high level of consensus in Canada, as well as in many other nations. 136 Although as noted earlier in this paper there is a lack of specific data concerning the relative gravity attached by Canadians at large to various types of environmental and other crimes, the majority would probably concur with the fec1aal Minister of the Environment's view that pollution, and not embezzlement or tax evasion, is the "worst white collar crime in Canada today.,,131 In a nation like Canada, which has unified and codified much of its criminal law in a single statute, a symbolic message of some description would undoubtedly be conveyed to citizens were a new crime against the environment now to be added to the Criminal Code. How far-reaching this message would be, and what effect it would have upon the further promotion or re-affirmation of fundamental values about the environment, are moot questions at this point. A mere addition of such an offence to the litany of crimes already contained in the Criminal Code, without a commitment to enforcement, might well do no more than promote public distrust and disquiet about the bona fides of those professing to support an important law reform, The sensitivity and volatility of public attitudes tDwards environmental issues are now well established both in Canada and abroad,13a Outright civil disobedience, or even "environmental terrorism", resulting from dissatisfaction with official environmental protection policies, is becoming an increasingly common international phenomenon in the 1980s. 139 Thus any government that acts in this area of law reform must be forewarned that symbolism, without more, is likely to have social repercussions that could lead to civil unrest and even violence.

Some Comparative Experience: Japan and Germany

When making its proposals for a new crime against the environment in WP44, the LRCC referred "in very summary form" to a number of precedents for such a concept in the United States, Germany, Japan and the CouncU of Europe. 140 In equally summary form it is perhaps instructive to review the experience obtained in several of these countries with new criminal offences dealing with the most serious instances and forms of environmental pollution, if only to see whether they have achieved some recognized symbolic importance. Because of its more obvious comparative relevance to Canada, a consideration of the United States experience with the criminalization of certain facets of its environmental laws is postponed until later chapters of the paper.1 41 Here the brief focus is upon Japan and Germany, two countries that have performed "economic miracles" in recent decades while also experiencing major problems of pollution in the course of their economic growth. 142 (1) Japan. In 1967 the Japanese Diet passed the Basic Law for Environmental Pollution Control, which established the framework for later environmental legislation.1 43 In 1970 an extraordinary Diet session passed fourteen more specific pollution control laws that, among other things, criminalized serious environmental pollution. 144 In 1971 a Japanese Environmental Agency was formed. 145 These legislative efforts were the outcome of a dramatic battle by the victims of a series of major pollution tragedies to gain redress for their injuries. 146 Of these tragedies, perhaps the best known and described is the Minamata case involving the poisoning of communities in the vicinity of Minamata Bay, Kyushu, by methylated mercury.147 For years a plant operated by the Chisso Company had discharged effluent containing mercury into the bay, and gradually this metal worked its way up the food chain into the bodies of local inhabitants. The resulting affliction, now referred to as Minamata's disease, was extremely painful;

caused tremors and paralysis; was transmitted by pregnant mothers to their fetuses; and was often fataI.148 The plight of the victims of this disease, who lived in poor and isolated communities, was ignored for years. 149 Even after the Diet's legislative activity in 1970, no criminal prosecution was brought against the Chisso Company or any of its employees until 1975, when two former corporate officials were charged with negligent homicide. 150 Meanwhile, victims of the disease involved in civil litigation against Chisso became engaged in a series of violent clashes with Chisso Company officials, which led in 1972 to the indictment of one of them on assault charges. 151 This victim had also lost his father to Minamata's disease. 152 In 1977 the Tokyo High Court dismissed this indictment on the grounds that it was an arbitrary exercise of the prosecutors' power. In taking this action the Court contrasted the vigorous pursuit by prosecutors for the government of those harmed by the pollution with their lenient treatment of the Chisso Company executives.1 53 Informed observers of Japanese society and its approach to environmental issues seem agreed that, despite the presence of the 1970 laws, the criminal law plays almost no part in the Japanese approach to pollution problems.1 54 The 1970 laws themselves have been criticized for being too vaguely and narrowly drafted, punishing only acts that endanger human lives and not including acts that are dangerous to the environment itself.1 55 The laws also limit punishable acts to the activities of business enterprises and do not include the activities of private persons. 156 Although ineffective, it has still been said that the 1970 laws are not completely meaningless since they are "an expression of the moral and determined attitude of the people against pollution."157 Prosecutions of any type for environmental offences are still quite rare in Japan, and the favoured official strategy for achieving control over polluting behaviours is that of negotiation and persuasion rather than the threat of punishment. 158 Considerable frustration with this approach has been evident among pollution victim groups, who have on occasions vented their emotions by engaging in acts of civil disobedience. 159 At the same time, it is said that the Japanese courts, in a series of four civil suits arising from major pollution cases, have assisted with the development of new societal values towards polluting behaviour in Japan. 160 The importance of appreciat.ing the cultural context in which these events occurred is illustrated by the following description of the aftermath of

the four civil cases:

After each of the court decisions the victims demanded that the presidents of the offending companies make a public expression of guilt and tender an apology. The victims sought the ultimate expression of penitence - that the president kneel before them and bow his head to the floor. The victims' demands were not idle vindictiveness. The act of supplication in a traditional sense symbolised ultimate acceptance of what was done. This was necessary for the beginning of any forgiveness. The Courts' judgments that the polluters were legally responsible served as weapons for the victims to compel the companies to accept their social responsibility. In this way the victims translated the courts' decisions into traditional terms.1 61 Germany. In the Federal Republic of Germany (hereinafter FRG), as in Japan, it (2) would seem that the criminal law and sanctioning strategies generally playa

most minor role in environmental regulation.1 62 As one commentator has stated:

Germany is often pictured as a country in which law enforcement is characterised by a system of strict regulations, clear and binding orders, and obedient compliance in the Prussian tradition executed by a well organised and efficient administration.... Drawing on data gathered in connection with a study of air and water pollution control in the Federal Republic of Germany we argue that even here, beneath the surface of seemingly clear and authoritive regulatory standards the actual practice of implementation involves a substantial amount of bargaining over the terms of regulatory actions between enforcement agencies and their "clientele" rather than the command and compliance usually assumed. 163 A number of new sections were added to the FRG's Criminal Code in the late 1970s dealing with offences against the environment.1 64 These reforms were intended to symbolize the gravity of such offences while also providing more adequate legal provisions to deal with polluting behaviours that were "particularly hazardous to the public weal.,,165 The extent to which these objectives have been achieved is not apparent from the available literature, but recent commentators on general developments in environmental law in the FRG place emphasis on the introduction of innovations like effluent charges 166 rather than upon any sanctioning activities.

Perhaps more than in most other democratic states, environmental issues in the FRG have been played out directly in the political arena with the presence in the German Bundestag of the Green Party.167 This party, which campaigns on a broad-based environmental protection platform, won their first parliamentary seats in the early 1980s, capturing 5.6 per cent of the national vote. 168 With the "benefits" of a series of environmental disasters occurring in 1986, this vote increased substantially in recent national elections. 169 In the run up to the election, moderate members of the Green Party were careful to distance themselves from a more radical wing of the political movement committed to using violence in the course of protecting the environment. 170

What Lessons Are to be Learned?

It would be unwise to draw firm conclusions about the likely impact of new criminal laws to protect the environment in Canada based upon the limited appraisal provided here of recent comparative experience in Japan and the FRG. The available evidence does suggest, however, that in neither Japan nor Germany have sanctioning strategies been favoured despite the changes made to national criminal laws. Both countries have experienced major political upheavals produced by environmental concerns, and both have had to respond to substantial civil unrest resulting from public anger and disquiet about polluting behaviours. Yet in their responses to these troubling problems, compliance strategies based upon a mix of negotiation and economic incentives seem to have been utilized in preference to the rigors of the criminal law or related measures. These preferences likely reflect deeply rooted values and traditions that have little to do with the passage of formal laws and regulations. But it would be trite to try and categorize these values and traditions without the benefit of sustained study and knowledge of the language and culture of Japan and Germany.

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A Belief in Deterrence It has already been suggested in Chapter 4 that a belief in the effectiveness of cleterrence lies at the very core of sanctioning strategies applied to polluting t'ehaviour. This belief is to be found in environmental statutes;l71 in judicial statements when sentencing polluters;172 in political speeches about the environment;l73 in comments by those involved in regulating pollution;174 in the outpouring of environmental scholars;175 in the utterances of individual citizens about pollution;176 and even in the confessions of polluters themselves.1 77 What evidence is there to support this widespread confidence in the utility of detem:-nce in combatting pollution? More specifically, what do we know about the likely inl.oact deterrence has upon the four groups of players mentioned earlier who are believed responsible for the bulk of polluting behaviour in society? Some extremely.,~entative answers will be suggested in this chapter, but it must be admitted at the outset that the literature that touches upon the issue of deterrence is so richly divelse and complex that full justice cannot possibly be done to it in the space of this paper. 178 Instead, a series of selected vignettes that seem most directly relevant to the area of environmental regulation will be drawn from the deterrence literature.

Deterrence Language and Resea:'L!l

Classic theories of deterrence are based largely upon a utilitarian philosophy that views the actual or threatened punishment of criminals as justified because this reduces or prevents a greater evil, crime. 179 Deterrence is often described as having two components - general and special - with the former being concerned with preventing criminal behaviour in advance and the latter with dealing with an individual who has already offended. 180 The two components are quite different, although often confused in the literature.

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