«FaOM SAWDUST TO TOXIC BLOBS AConsideration of Sanctioning Strategies to Combat Pollution in Canada STUDIES IN REGULATION AND COMPLIANCE Canada.~ ...»
Some Concerns and Limitations As noted at the outset of this paper, one of the stated objectives of the present study is 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."283 If a narrow interpretation were to be adopted of this contractual mandate it would probably be quite reasonable to advise that no further empirical work is required at this stage on this issue. The research conducted already by the LRCC, although most of it has not been "empirical" in the sense that a social scientist would normally use that term, has been of impressive dimensions. In addition, a comprehensive consultation process regarding WP44 is almost complete and the results will no doubt show that, with some "fine tuning" of legal language, a new offence could be added to the Criminal Code that would meet with widespread if not universal approval. 284 From the review made in this paper of the experience obtained with similar law reforms in Japan, Germany and to a lesser degree the United States,285 it is likely that at best a symbolic message of some type would be conveyed to the Canadian public and polluters by such a Criminal Code amendment, but not much more. Polluters almost certainly would soon discover that the new offence would rarely be applicable, and would even more rarely be applied to their typical behaviours.
But throughout this paper a narrow interpretation has not been taken of the various tasks prescribed, and a similar approach will therefore guide tl-te response given regarding research needs. The research that is required, it is suggested, is of a type that will assist policy makers to implement a more effective mix of sanctioning and compliance enforcement strategies or, as Braithwaite has termed it, "an optimal mix of punishment and persuasion."286 It must also be research of a type that should neither be seen nor used as a device to nullify or delay the introduction of environmental protection measures. Research can be used as an effective tool by governments to achieve such effects as contemporary experience with the "acid rain pollution problem" illustrates. 287 Calls for more research, more committees to study the problem, more consultation with "relevant groups", and for more information about the cost- benefit equations of proposed reforms are familiar and obvious methods of achieving compliance with the status quo. The methods also have some credible historical roots in Canada, as has been seen earlier in regard to the almost-30years-long battle to end sawdust pollution. 288
The Broad Agenda
So what specific research projects are required? From a policy-making perspective, three broad and interrelated questions seem to require analysis. First, what is the nature and scope of the public mandate to pursue sanctioning strategies against polluters? Second, who are the principal polluting groups and what types of enforcement strategies and styles work best with each of them? Third, what resources are required to implement an effective enforcement program to deal with polluters? A brief explanation of each of these questions is needed before considering possible methods of answering them by means of research.
The Puulic Mandate. It is very clear from evidence referred to in a number of (1) places in this paper 289 that the public is now supportive, in general terms, of the adoption of sanctioning strategies against polluters. It is not clear, however, where '![1r\ous types of polluting behaviours are placed by Canadians on a scale of crime seriousness, or how this allotment of gravity may vary according to variables such as geographic location, economic status, age and education. The gathering of information about these issues would seem to be important for a number of reasons. For instance, in the setting of penalties for different types of polluting offences, whether in statutes or in sentencing by the courts, there is a need to consider community values and concerns. Similarly, both the acceptance and knowledge of specific enforcement strategies and styles that give emphasis to punishment rather than persuasion may not be uniform across the country. It is known that certain provinces, like Ontario, have already adopted a more punitive approach to polluters, and this is presumably a policy that is desired and understood by the community. The same situation may not prevail, however, in those provinces that have relied traditionally on persuasion to obtain compliance with environmental regulations. Public education programs may be required to convey information about alternative enforcement approaches to certain parts of the nation.
(2) Polluting Groups. In Chapter 3 substantial attention was devoted to a review of the information currently available in Canada about the groups who are responsible for most of the polluting behaviours. It seems clear from this review that this information is deficient in many ways - a fact that makes it virtually impossible to design targeted enforcement strategies on a national, regional or local basis. There would therefore seem to be a quite pressing need for research that would close this particular data gap, and would link with other studies required in the area of enforcement.
(3) Enforcement Resources. In Chapter 6 it was suggested that the information currently available is sparse about the resources that either exist or are required to implement more "aggressive" approaches to the prevention of pollution. It is in this arena, in particular, that the nullification of announced policies of "getting tough" with polluters can so readily occur. For any government which is less than sincere about change, and views statements of concern about the environment expressed through legislation as mere political placebos designed to appease public opinion on this issue, a failure to allocate adequate resources to enforce new or existing laws can be an effective means of emasculating their effect. A national assessment of enforcement needs and priorities, based upon independent and objective research, which includes an incorporation of the findings from the proposed examination of public attitudes and polluting group identities and behaviours, would therefore seem to be a matter of high priority. Such an assessment should provide a blueprint against which to measure the extent of any subsequent political and regulatory commitments to environmental enforcement activities.
Research Resources and Methods
As in the case of environmental enforcement measures at large, nullification of the impact of a research program in this area can also be secured by failing to allocate adequate resources to carry out any proposed agenda. The research agenda broadly sketched below will require the allocation of quite extensive personnel and allied resources on an intensive basis if it is to provide any useful results within a reasonable time frame. But some mitigation of cost, as well as a strengthening of comparative information, can be achieved by adopting in part or in whole research methodologies and strategies that have been developed and successfully used elsewhere. For example, the quite extensive survey research conducted in places like the United States and Australia relating to the seriousness of crime should be quite readily adaptable to Canadian conditions. 29o So too should the interviewing techniques adopted by Fisse and Braithwaite in their study of the effects of adverse publicity on major corporations. 291 With these general points in mind, attention can now be directed to some suggestions for research that could provide answers to the three questions raised earlier.
The Public: What Mandate Exists in the Sanctioning Area?
Obtaining information on a national basis about the nature and scope of the public mandate to pursue sanctioning strategies against polluters can best be achieved by using survey techniques. Thus it is suggested that a carefully designed survey, utilizing wherever possible research methodologies and questions incorporated in recent and similar studies by Wolfgang et a1.,292 and other researchers, should be undertaken. The survey would seek specific data regarding such issues as the relative seriousness of different types of polluting behaviours; the relative seriousness of these behaviours in comparison with other categories of established crimes; the penalties that should be applied to different types of polluting behaviours; the experience, if any, that respondents have had as victims of pollution; the types of compensation that should be available for polluting behaviours; the role that private prosecution should play in dealing with polluters; the responsibility that different levels of government should have regarding enforcement of environmental regulation;
and views in general about alternative strategies and styles of enforcement of environmental regulations.
In addition to this national survey, it would be desirable to conduct several more intensive and localized surveys of similar design in selected towns or regions with special pollution problems. For example, surveys might be conducted in a single-industry town like Sudbury, Ontario, which has had a long and contentious experience with pollution; in the Northwest Territories, where pollution problems are of a different kind and dimension; and in a heavily populated region like the Fraser River Valley, where pollution problems have been identified and discussed for many years.
Pr-ofiling Polluters The development of a more comprehensive data base about the major groups responsible for polluting behaviours in Canada will require an extensive search of existing environmental regulatory agency files, together with the undertaking of structured interviews with a range of enforcement personnel and other knowledgeable groups. As has been suggested in Chapter 3, most of the current information about polluters would seem to be limited to large companies and to highly publicized incidents of pollution. Little is known about the polluting activities of small businesses and public agencies, or about the involvement of criminal organizations in polluting behaviours.
As part of the national data gathering under this heading, it is suggested that interviews with regulatory agency personnel should extend to a discussion of their preferred and actual strategies and styles of enforcement. Such interviews would enable a national profile to be developed of approaches to enforcement, and assist in the possible identification of particularly successful enforcement programs as well as the cataloguing of dilemmas experienced in regulating the environment. An ethnographic approach to the gathering of information about regulatory agency practices would also be valuable. Hawkins,293 as has been indicated, adopted this approach in a study of certain British regulatory bodies concerned with water pollution. An equivalent study might be sponsored in Canada.
The research conducted by Fisse and Braithwaite,294 based on case studies of grave pollution incidents involving large corporations, might also be replicated in Canada. For example, an analysis of the toxic blob incident would likely provide very valuable insights into corporate responses in this country to unwelcome adverse publicity.
A number of complementary projects seem appropriate under this heading. First, as part of the proposed interviews with regulatory agencies across the country about their enforcement strategies and styles, questions should also be asked about enforcement resource needs, and about the setting of priorities regarding investigative targets. Statistical data should be gathered wherever possible that document the number, type and outcome of prosecutions brought against polluters.
Second, a detailed study should be made of the structure and operations of the special investigation unit attached to OMOE. As the only unit of its type in the country it offers a model that might be adopted by other provinces, and the federal government, to enhance the investigative capabilities of those concerned with environmental regulation. Details of recruitment, training, case assignment and related practices adopted by the SIU could be incorporated in a manual similar to that sponsored recently in the United States by the Department of Justice. 295 Third, the role of traditional public police agencies in dealing with environmental regulation requires review. At present this role is believed to be minimal. However, in the United States law enforcement agencies like the Federal Bureau of Investigation have become involved in investigating environmental crimes, and particularly those in the area of hazardous waste disposal by organized criminal groups.296 In Canada the Royal Canadian Mounted Police has a well-established role in the investigation of many white collar crimes, as do provincial forces and many of the larger municipal departments. The possible extension of these enforcement activities to environmental offences needs to be explored.
Fourth, the special but very important area of enforcement involving transborder polluting behaviour deserves study. The illegal shipment of hazardous wastes across the border is one obvious example of such behaviour. More complex is the enforcement machinery, or lack thereof, involved in policing pollution in the Great Lakes, or in other international waterways.
Towards Finalizing a Research Agenda
The constraints of time have not allowed the development of these research ideas beyond the stage of broad proposals. To advance them beyond this point one strategy that might be adopted would be to convene a small workshop for those involved in related environmental research, and in associated studies of white collar crime, both to review what has been outlined in this paper, and to discuss the more detailed design of a comprehensive and focused research program. 297 That research of the type described is urgently needed, seems undeniable. That the public views the protection of the environment as one of the most important priorities facing contemporary Canadian society is equally obvious. The challenge now is to move forward rapidly from discussion to action.
NOTES I~ The study, originally titled "Environmental Offences as True Crimes: Literature 1.