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
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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
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