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The Rural Voice, 1996-06, Page 16Agrilaw Contamination - guilty or not? By Paul G. Vogel Can fire and smoke from a controlled burn to clear weeds and brush be considered environmental contamination sufficient to support a prosecution and conviction under Ontario's Environmental Protection Act (EPA)? What criteria will our courts consider in deciding whether any particular discharge into thc environment merits thc imposition of penalties including fines or imprisonment? The Supreme Court of Canada It's only necessary to prove a discharge that harms environment recently considered these issues in the case of R.v. Canadian Pacific Limited (CP). CP had undertaken the controlled bum on its right-of- way near Kenora, Ontario. Smoke from the fire caused one nearby resident to suffer an asthma attack in his driveway. Another resident was required to clean interior walls and furniture, and yet another experienced some damage to trees, grass and shrubs. Visibility was restricted on an adjacent roadway. As a result of complaints, CP was charged under the provisions of the EPA with unlawfully discharging a contaminant, namely smoke, into the natural environment that was likely to cause an adverse effect. "Contaminant" as defined in the EPA means "any solid, liquid, gas odour, heat, sound, vibration, radiation or any combination of them resulting directly or indirectly from human activities that may Stay On Top This Year! With a 2 -Way Radio from Perth Communications • Increase Productivity • Reliable Performance • Control Your Operation's Efficiency 12 THE RURAL VOICE COMMUNICATIONS 519-273-3300 1-800-565-9983 89 Lorne Ave., Stratford Internet perthcom®golelen.net OMOTOROLA Aulhonr•d Two -Way A•d,o Deal*, cause an adverse effect". An "adverse effect" includes "impairment of the quality of the natural environment for any use that can be made of it." The EPA prohibits the discharge of a contaminant into the natural environment that may cause an adverse effect. In upholding CP's conviction, the Supreme Court rejected CP's argument that the relevant provisions of the EPA were so vague as to be unenforceable. The Court held that, to obtain a conviction, the Crown need only prove a discharge into the natural environment which was likely to impair its quality. Although the EPA provides no definition of the environmental uses which may be considered or the extent of the impairment required to support a conviction for contamination, the Court stated: "Environmental protection is a legitimate concern of government, and ... it is a very broad subject matter which does not lend itself to precise codification. Where the legislature is pursuing the objective of environmental protection, it is justified in choosing equally broad legislative language in order to provide for the necessary degree of flexibility." The Court concluded that polluting conduct is only prohibited under the EPA if it has the potential to impair a use of the environment in a manner which is more than trivial. Similarly, the nature of the impairment must be of some substance. The Court commented. "(The EPA) does not attach penal consequences to trivial or minimal impairments of the natural environment, nor to the impairment of a use of the natural environment which is merely conceivable or imaginable. A degree of 1