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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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Hawkins's description and analysis of the strategies and style of preferred enforcement of English water pollution laws bear a close relationship to those provided on a more general basis by other observers of British regulatory practice. 249 Bugler,250 for instance, has characterized this as operating strictly within the canons of Good Form; of gradual reform rather than rapid change. It constantly displays a distaste for confrontation or any unpleasantness; it likes persuasion; it dislikes compulsion; it detests prosecution. It also believes its own methods are enormously superior to those practiced by foreigners. 251 With the probable exception of the last statement, Bugler's description does not sound so unlike suggested characterizations of the traditional Canadian approach to pollution control. Nor do Hawkins's observations of the attitudes of field staff towards sanctioning strategies seem at odds with the only "field-based" appraisal made in Canada of the environmental enforcement process. Huestis,252 as part of the research performed for the LRCC when preparing WP44, conducted interviews across Canada with regulatory agency staff. She discovered that the enforcement strategies adopted reflected the professional capabilities and biases of individual agencies, and the political climate in which they had to work.

Operational groups were composed largely of field staff with technical

qualifications in biology and engineering:

In the professional sense, agency staff view their jobs in scientific and technical terms; in this context the solution to identified environmental problems lies in an economic engineering solution to the problem. Operational staff commonly view litigation as a profound failure on their part to reach this solution. More importantly, these staff members normally do not view litigation as part of their professional role as engineers and biologists. 253 Professional role models such as these are unlikely to change in Canada merely because a new enforcement policy is set by political and legal fiat. Thus, governments who desire "real" change in environmental regulatory activity will need to provide the substantial resources required to establish, equip and maintain units that are equivalent to Ontario's SIU, if their new policy is not to be nullified.

(4) Prosecutorial Discretion. Nullification can occur in other ways as well, such as through the exercise of wide prosecutorial discretion. In Canada it appears that the formal exercise of prosecutorial discretion, in the few environmental cases brought to the courts, is exercised at the executive level of individual regulatory agencies. 254 In most jurisdictions the final decision to prosecute rests with the deputy minister of the relevant department, although advice on the legal merits

is normally sought first from the Attorney General. As Huestis has observed:

No prosecution can proceed without the formal consent of the executive. This of course raises the possibility of political considerations in the final decision to prosecute. 255 If a prosecution does proceed it will, with the probable exceptions of Ontario and Quebec, usually be conducted by lawyers from outside the regulatory agency involved. 256 This also can create problems because these lawyers may lack the experience and expertise required to handle environmental cases. This experience and expertise will be of even more vital concern should the proposals for the establishment of "real" environmental crimes proceed in Canada in either or both the Criminal Code and the Environmental Protection Act. The burden and complexity of proof required of the Crown in criminal trials is clearly more onerous than is the case with offences of absolute or strict liability. This burden and complexity will, of course, also be felt at the investigative level and mandate that scrupulous attention be given to the protection of the rights of accused corporations and individuals in any criminal proceedings arising from polluting behaviours.

(5) Judicial Officers and Sentencing. Even if a sanctioning enforcement strategy overcomes the obstacles mentioned so far, there remains the barrier of sentencing. Swaigen and Bunt 257 have already provided a comprehensive review of the sentencing practices of Canadian courts when dealing with environmental offenders. It shows that with very few exceptions Canadian judicial officers have shown themselves to be extremely reluctant to impose substantial or innovative penalties in these types of cases. Reflecting broader attitudes towards white collar crimes at large, the judiciary seems to be out of step in this area with societal views about the gravity of many polluting behaviours.

Producing a change in these judicial views is a difficult and delicate task, and one that may well require that greater guidance be given concerning the exercise of sentencing discretion by the legislature, and perhaps by a sentencing commission. 258

Some American Experience

Changing generally the way in which Canadians have sought to protect the environment from a situation based upon regulatory agency behaviour that has been classed 259 as "cautious" to "captured" (in the sense that the regulatee's interests predominate), to one that can be described as "aggressive", is going to be an extremely challenging exercise for all concerned. And the question that must be asked is whether such aggressive behaviour will, in itself, produce real change as well in the quality of environmental protection enjoyed by Canadians. The tentative answer given in the preceding chapter to a similar question about the likely impact of deterrent sanctions on the four groups of players believed responsible for most polluting behaviour suggested some cautious optimism, based on findings from recent and continuing research. But it is also obvious that the administrative structure required to provide the "enforcement punch" for a new approach is not easily constructed.





In the United States, elements of such a structure are now in place and operating in ways that may provide some assistance in understanding how a greater use of sanctioning strategies and a penal style of enforcement could work in Canada.

Describing any development in this area in the United States is always a hazardous enterprise because of the huge diversity of jurisdictions, laws, law enforcement and regulatory agencies, and pollution problems involved. 26o But at federal and state levels an increasing use has been and is being made of criminal sanctions to combat pollution.

In the federal arena, after a number of reversals in policy and direction,261 the Environmental Protection Agency (hereinafter EPA) and the United States Department of Justice (hereinafter USDJ) have both become involved in an active criminal enforcement program. 262 At the EPA the first criminal investigators were not hired until 1982, when the agency formed a National Enforcement Investigations Center (hereinafter NEIC). The NEIC is now staffed by a substantial cadre of experienced investigators who devote their attention to the administration of a number of major federal environmental statutes. 263 A complementary specialized Environmental Crimes Unit (hereinafter ECU) has been formed at USDJ to handle the prosecution of cases developed by the NEIC investigators. 264 The purpose of the ECU, as described by its leader, is to prosecute cases and seek substantial penalties, including incarceration in certain cases: (1) to afford an adequate deterrence against other potential misconduct and environmental abuse; (2) to promote respect for the nation's environmental laws;,(3) to seek a just punishment of the offenders and (4) to remove competitive advantage and economic incentive realised when a defendant disregards the requirements of the environmental statutes. 265 The specific environmental laws utilized to fulfil this purpose do not in general create "pure environmental crimes" like those proposed in Canada. Instead, violation of these laws usually leads to evidence of more widespread breaches of general criminal laws, including offences like mail and wire fraud, false statements, false claims and conspiracy.266 The majority of cases dealt with by both the NEIC and ECU focus on the illegal transportation, storage or disposal of hazardous waste. 267 Some measure of the level of enforcement activity engaged in by these federal units can be obtained from prosecution statistics. 268 They show that from October 1983 until March 1986, nearly 180 indictments were returned and approximately 130 convictions or guilty pleas obtained. Fifty separate entities were charged in their corporate capacity and the remaining charges were brought principally against managerial officials. Fines totalling more than $1.5 million were imposed and "over ten accumulated years of actually served jaB time has been meted OUt."269 In addition to these federal enforcement activities, an increasing number of states have also pursued polluters using criminal laws. 27o A similar focus on cases involving hazardous waste seems evident among these state- based enforcement programs, a number of which have also formed specialized units to investigate and prosecute this type of offence. 271 There have been some equivalent developments at the county level. For instance, the Los Angeles District Attorney's Office has created a much publicized Toxic Waste Strike Force within its Environmental Crimes Division. 272 The emphasis of the Strike Force is upon cases that are likely to produce jail terms for corporate officials, and in approximately 30 months of activity 12 senior company executives received jail sentences of up to 17 months duration, and fines up to $250,000. In addition, corporations have been required to pay for fullpage advertisements in local or national newspapers proclaiming their guilt, while company executives have also been ordered to speak in public about their wrongdoing. 273 It is impossible to measure the overall impact of all of this sanctioning activity in the United States in an objective way from the information currently available.

Obviously, those involved intimately in the enforcement process are convinced of the deterrent reach of these "aggressive" enforcement policies, and quoted confessions of convicted polluters suggest that a measure of rehabilitation may be secured through the infliction of sentences like those that require a public acknowledgment of sinning. 274 The symbolic quality of these activities cannot be ignored in a society that has always viewed punishment with favour and now clearly regards various forms of polluting behaviour as serious criminal acts. The "moral educative" effect of deterrent penalties suggested by some writers 275 could well be at work, while public confidence in the administration of justice is bolstered by the knowledge that polluters are ultimately paying for their misdeeds.

But the economic cost of all of this activity is high for society as well. The evidence is compelling that investigating and prosecuting environmental offences under criminal statutes, especially when the defendant is a major corporation, can be extremely expensive 276 - a fact which, as seen earlier, has led some commentators to favour the use of civil remedies and fines in preference to criminal measures. 277 The detection of pollution offences can also be very difficult. Indeed many, if not most, offences seem to come to the attention of enforcement agencies from external sources, rather than as a result of pro-active investigative efforts. 278 This reactive model of enforcement, particularly if enforcement resources are limited, can lead to the "easy cases" being selected for follow-up in order to maintain an impressive activity profile. 279 Case-processing statistics, like those referred to earlier of the ECU, are commonly used to evaluate the performance of enforcement units. Numbers like these, however, reveal little about the real difficulties encountered in bringing to trial and prosecuting major' pollution cases.

An Open Verdict and a Case for Diversity

The verdict appears to remain very much an open one about the relative merits and effects of this United States approach to controlling pollution. The visible manifestations of a sanctioning strategy and penal style that are said to guide American approaches to environmental regulation are clearly seen in the emphasis given to the use of the criminal law. Other manifestations of this approach exist ill the form of civil penalties and injunctive remedies, and in the adversarial and litigious dimension of much of the environmental regulatory activity conducted in the United States. At the same time, however, compliance strategies and conciliatory styles are also used, although their presence is less obvious or acknowledged than it is north of the 49th parallel.

Perhaps the lesson to be learned is that a diversity of approaches is required, with emphasis changing in enforcement strategies and styles according to actual social and cultural need. 28o Some support for the success of such a diversity of approach is to be found from a recent study made by Braithwaite of the enforcement of coal mine safety in a number of countries. 281 The study concluded that enforcement of mine safety laws has been a major factor in producing the dramatic improvements in coal mine safety of the past century, and that tougher enforcement in future can produce further improvement. This is not to say, the tougher the enforcement the better. There are ways in which a prosecutorial approach can hinder rather than help coal mine safety. Sometimes, as in all areas of law enforcement, the inspector will better serve the people he seeks to protect by persuasive or educative appeals to the better nature of offenders than by prosecution. The mission... is to begin to define an optimal mix of punishment and persuasion. 282 Defining such an optimal mix is really the contemporary challenge facing Canadian society as it begins what is clearly a distinct shift away from persuasion towards punishment in the regulation of pollution. Certain research needs to be conducted to assist in identifying what that mix should be. A proposed agenda for this research follows in Chapter 7.

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