Pollution – Criminal Sanctions and Overlapping – A brief of the relevant statutes, including overlapping issue
- November 12, 2009
- Brisset Bishop
In Canada there has been an apparent overlapping of federal legislation relating to penal sanctions for ship-source pollution. This has been due to interdepartmental rivalry, as there are three federal government departments involved: the Department of Transport (Transport Canada), the Department of Fisheries and Oceans (DFO) and the Department of the Environment (Environment Canada). Unfortunately, the problem is compounded by recent amendments to general environmental legislation, which gives greater powers and increased fines and will be under the administration of Environment Canada. This legislation only awaits to be proclaimed in force, which as at mid-November 2009 is expected to be in the spring of 2010 for all amendments except for new Administrative Monetary Penalty (AMP) aspects, and in the spring of 2011 for the AMP aspects.
Transport Canada administers the Canada Shipping Act (2001). Parts 8 and 9 of the Act, constitute a ship-specific regulatory regime for pollution prevention and response and criminalizing overboard discharges of pollutants. Sections 183 and 184 create a variety of offences with respect to failures to have an arrangement, equipment and resources available for immediate use, to have an oil pollution prevention plan and a response plan and / or to properly implement any one of these, to comply with directions of an oil pollution prevention officer and exposes offenders to fines up to $1 million dollars and in the case of misconduct of lesser gravity to fines of up to $100,000. Section 191 creates offences with respect to discharge of a “pollutant”, failure to activate the emergency response plan, failure to comply with a direction to unload the “pollutant” at a specified place or contravention of the Prevention of Pollution from Ships and for Dangerous Chemicals Regulations.
These offence provisions make offenders subject to fines of up to $1 million per day the offence(s) are committed.
“Pollutant” for the purpose of these offences is broadly defined as meaning:
(a) a substance that, if added to any waters, would degrade or alter or form part of a process of degradation or alteration of the quality of the waters to an extent that is detrimental to their use by humans or by an animal or a plant that is useful to humans; and
(b) any water that contains a substance in such a quantity or concentration, or that has been so treated, processed or changed, by heat or other means, from a natural state, that it would, if added to any waters, degrade or alter or form part of a process of degradation or alteration of the quality of the waters to an extent that is detrimental to their use by humans or by an animal or a plant that is useful to humans.
The definition includes oil and any substance or class of substances that is prescribed for the purpose of Part 8 (Pollution Prevention and Response — Department of Transport and Department of Fisheries and Oceans) to be a pollutant.
The scope of the definition is in reality limited since both Parts 8 and 9 prohibit a discharge “in contravention of any regulation” and the Regulations circumscribe the kinds of pollutants against which the prohibition operates. Thus, and without being exhaustive, the Regulations target oil and oily mixtures, garbage pollution prevention and target solid galley waste, food waste, paper, rags, plastics, glass, metal, bottles, crockery, junk or similar refuse, and specified chemical substances.
DFO administers the Fisheries Act and has not infrequently taken the position that prohibitions set out in the Fisheries Act also apply to ship-source pollution. Sections 35 and 36 of the Fisheries Act set out general prohibitions as follows:
35. (1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.
36. (1) No one shall
(a) throw overboard ballast, coal ashes, stones or other prejudicial or deleterious substances in any river, harbour or roadstead, or in any water where fishing is carried on;
(b) leave or deposit or cause to be thrown, left or deposited, on the shore, beach or bank of any water or on the beach between high and low water mark, remains or offal of fish or of marine animals; or
(c) leave decayed or decaying fish in any net or other fishing apparatus.
(3) Subject to subsection (4), no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water.
The Fisheries Act’s definition, at section 34(1), of “deleterious substance” is broad:
(a) any substance that, if added to any water, would degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water, or
(b) any water that contains a substance in such quantity or concentration, or that has been so treated, processed or changed, by heat or other means, from a natural state that it would, if added to any other water, degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water, and without limiting the generality of the foregoing includes
(c) any substance or class of substances prescribed pursuant to paragraph (2)(a),
(d) any water that contains any substance or class of substances in a quantity or concentration that is equal to or in excess of a quantity or concentration prescribed in respect of that substance or class of substances pursuant to paragraph (2)(b), and
(e) any water that has been subjected to a treatment, process or change prescribed pursuant to paragraph (2)(c);
The Fisheries Act creates offences, providing for fines in a range similar to the Canada Shipping Act, based on the section 35 and 36 prohibitions. The definition of “deleterious substance” is not circumscribed or limited by regulation.
Thus, in general terms, the Fisheries Act contains provisions which on their face could apply to ship-source pollution, although so far there has been only one decided case in which the Fisheries Act was used against a ship with respect to a discharge of oil, with that case however going off merely on the failure to prove that the ship had polluted, without considering the issue of statutory “overlap”. We have had experiences of Fisheries Act charges being laid, but none that have proceeded to the extent of the “overlap” issue being raised and determined.
Environment Canada, through its Fish and Wildlife service, administers the Migratory Birds Convention Act and the Canadian Environmental Protection Act (CEPA). Both the Migratory Birds Convention Act and the CEPA have recently been toughened up with respect to expansion of penal sanctions, civil liability provisions and investigation/enforcement tools.
The main features of the amendments (see in-force note on page 1) are as follows:
MIGRATORY BIRDS CONVENTION ACT
- extended to apply in the economic zone, thus 200 miles.
- deposits of substances harmful to migratory birds or habitat prohibited.
- prohibitions on destroying records, making false records, impeding investigations
- obligation on every master, chief engineer, owner and operator, as well as every director and officer of the corporation in a position to direct or influence related policies or activities, to take reasonable care to ensure compliance.
- provision for arrest of persons without warrant
- detailed provisions regarding inspections and investigations
- search and seizure without warrant in exigent circumstances, otherwise with warrant
- powers of direction and detention of vessels
- provision for release of vessels on provision of security in form determined by Attorney General for payment of maximum fine resulting from conviction of every accused, or such lesser amount approved by Attorney General
- any contravention of Act or regulations gives rise to fines and/or imprisonment, which are increased dramatically – on indictment max Cdn$1million, on summary conviction max Cdn$300,000, up to three years’ imprisonment on indictment, up to six months’ imprisonment on summary conviction
- due diligence a defence, except where falsified record or interference with investigation
- subsequent offences can give rise to double maximum fine
- forfeiture of property, including vessel, can be ordered on conviction
- conviction/sentencing may include prohibition or direction type orders, including remedial, environmental audit, publication, payment of costs of remedial or preventive action, payment for research, educational funds, community service, continuing statements re activities, posting of performance bond, etc
- court can also order payment of compensation to third parties and civil remedies unaffected, but with provision that no claim for damage to be made under Act insofar as claim may be made under Marine Liability Act (civil liability for oil pollution and CLC/Fund Convention regime) and similar Arctic Waters regime
- provisions re disclosure and publication of information obtained during inspections/investigations
CANADIAN ENVIRONMENTAL PROTECTION ACT
- prohibition added (with exceptions/ qualifications) on importation or exportation of substances for disposal at sea, and without permit
- provision for recovery of remedial or mitigation steps reasonably taken
- enhanced powers of boarding, investigation
- inspection/investigation without warrant in exigent circumstances
- arrest without warrant of persons/ships
- provision for security in form determined by Attorney General for payment of maximum fine or such lesser amounts
- power to direct ships
- ships deemed persons for all provisions of Act/regulations
- master or chief engineer of ship who directed, authorized, assented to etc is party to and guilty of ofthorized, assented to etc is party to and guilty of offence
- directors and officers of corporations who are in a position to direct or influence corporation’s relevant policies or activities in relation to compliance shall take all reasonable care to ensure compliance, all such officers and directors guilty of offence where corporation commits offence unless establish due diligence
- master and chief engineer to take reasonable care to ensure compliance
- if ship commits offence, master and chief engineer are party to and guilt of offence unless establish due diligence
This apparent overlap or duplication of statutory/regulatory regimes has not, to date, been resolved judicially And the issue has now been compounded by the recent amendments. As at this writing, it is not known precisely when the amendments will come into force, although they only await proclamation which is an essentially administrative matter and could in principle happen at any time.
We have had experience in a few cases of multiple charges being brought initially. The Fisheries Actcharges (or Migratory Birds Convention Act charges) were in those cases eventually dropped or the cases otherwise resolved prior to determination. Were multiple charges to be prosecuted to trial, the issue would likely end up being tested on a “double jeopardy” question.
A Memorandum of Understanding between Transport Canada and Environment Canada was signed some time ago which outlines the co-operation of both parties in enforcing pollution prevention and wildlife legislation for the protection of the marine environment from ship source pollution, but it does not bar the possibility of multiple charges.