Documents in support of the evidence you gather through field investigation confirm and reinforce your case. For example, if the suspected polluter is a corporation, you need to obtain a copy of the company’s certified Certificate of Incorporation to verify
its legal name and to ensure that the proper organization is being charged (see section 4.9). Or you may need to obtain a land title to prove that the land belongs to the polluter (see section 4.10).
The Freedom of Information Acts available at the different levels of government are excellent, although time-consuming, tools to
obtain documents (see section 4.1).
In the course of an investigation, you will gather a large number of documents and notes from many sources. You should keep
all documents because their relevance may not become clear until late in the investigation, so set up a system to keep track of
them. Keep the originals free of any written notes. You can make a small notation on the document itself (preferably on the
back, but on the face only if necessary,) indicating the date on which you obtained the document, from where or whom you got
it, and the total number of pages in the document. If the copy you receive is incomplete, you may want to indicate that as well.
Documents you can show to be "in the possession of the accused" can help to dismantle a due diligence defence.
Keep orderly notes of any phone calls you make or receive about the case. Make a habit of sending letters confirming the
contents of any conversation relevant to your case (see section 4.11). Keep copies of letters you send and receive since they may play a pivotal role in your case.
It is often useful to make a time line of the events that led to the offence, using documents obtained as supporting evidence. This
exercise will also help you prepare the brief (see section 9.0).
4.1 Freedom of Information (FOI) requests
The federal Access to Information Act and the provincial and municipal Freedom of Information Acts are invaluable tools
available to all Canadian citizens. Using these acts you can obtain any correspondence (letters, e-mails) or other relevant
documents (reports, minutes of meetings, and so on) that may relate to the events or sites you are investigating. Government files
may contain a letter from a regulatory agency to a company, requiring it to take certain steps before, during, or after an offence
(e.g., conduct assessments, put in silt barriers, take water samples, sample for fish, submit reports, follow certain guidelines, and
so on). Failure to follow these instructions may exacerbate the offence or be the reason an offence has occurred. This type of
information may strengthen your case, so include the documents you obtain in your brief (see section 9.0), as proof that the
accused could have avoided the offence, that the person or company failed to follow instructions, or that they were aware of the
situation for a duration of time within which they failed to take preventative action.
Check with the government body from which you want to obtain documents about which act applies, the name and address
where you should send your request, and in the case of a federal request, to whom the $5 cheque for processing should be
made payable. After receipt of your request, the agency has 30 days to respond. It will usually send you a letter confirming
receipt of your request, assigning it a file number and indicating when it will get back to you. The agency will then forward a cost
evaluation for photocopying the documents with a request that you confirm the procedure by paying a portion of the costs. If the
cost is not prohibitive, you then send a cheque in the amount requested (usually half of the evaluated total), and a complete
assessment of the costs and the number and type of documents found will follow. The agency will ask you to pay the remaining
costs before it forwards the documents to you. It is a long, tedious process, but it may provide you with key documents.
A few tips
- Call before sending an FOI request; a nice (or uninformed) person may send you documents for free.
- An in-person visit to the appropriate office may allow you to view the documents and assess their usefulness before
sending the FOI request. It also allows you to cite specific documents in your request.
- Make your request specific. You may want to send more than one FOI request to the same agency on different aspects
of your case. If a request encompasses too much, the costs of obtaining the documents may be very high and you may
get a large number of unrelated documents.
- If, during the informational call, it appears you will need to proceed with an FOI request, ask what the processing fee is.
Always ask for a fee waiver; if the costs are below a certain amount, the agency may waive them. In British Columbia,
agencies may grant a fee waiver when the FOI request involves health, environmental, or other issues of public interest. If
the agency doesn’t grant a waiver, bargain the cost down. Agencies are generally flexible and will reduce their original
cost estimates.
- Some environmental legislation may place time limits on the charges that you can lay. (If the time limit is two years, for
example, you may want to limit your first FOI request to documents from that time period to establish whether an offence
occurred. If the documents obtained in this first request confirm an offence, you can send a second FOI request for
documents prior to that period that may help defeat a due diligence defence.
- Another alternative under the federal FOI legislation is to send the FOI request, have the agency compile the results, then
arrange to view the documents (before requesting photocopies). This saves money, paper, and trees.
- Documents released often have sections blacked out because they allegedly contain "confidential" information. Fight to
get full copies of such documents through all possible means (e.g., appeals, FOI requests to other agencies, and the
media).
Examples:
You have discovered an environmental crime, and you want to have the perpetrator charged. As with most
environmental legislation, every rule or regulation may have an exception or an exemption. Before proceeding with
charges, you need to establish whether the alleged offender had permission to carry out the activity. You can establish
this by directly asking for the appropriate documents from the relevant regulatory body and, if it won’t release them to
you, by sending an FOI request.
During an EBI investigation, an investigator contacted a government official who told her of some relevant files and
described the contents of some documents. The investigator confirmed in writing the content of the phone discussion (see
section 4.11) and requested the documents. When the agency did not forward the documents, the investigator sent a
formal FOI request. The agency’s FOI coordinator sent the request back, explaining that the agency’s files only
contained documents produced by another department. When the investigator reissued the request to the appropriate
department and included copies of previous correspondence, she was rewarded with some 50 pages of documents.
In another instance, an investigator sent an FOI request to a government agency that had repeatedly claimed not to be
involved at a specific site. A few months later, EBI received an assessment of the documents the agency held, it cited
over 45,000 pages of relevant documents. The cost of obtaining all of these documents was prohibitive (over $40,000),
so EBI filed an appeal of the costs. Although EBI never received the documents, due to the continuing cost concerns, it
had discovered the nature of the documents and made the public aware of their existence.
See Appendix A for an example of an FOI request.
4.2 Remedial Action Plan program (RAP reports)
All the Great Lakes have "areas of concern" identified in the Remedial Action Plan program publications, funded by the
federal and provincial governments in the late 1980s and early 1990s. Ontario has 12 areas of concern, stretching from
Thunder Bay on Lake Superior to Cornwall on the St. Lawrence River. Other provinces also have ecosystem initiatives, for
example, the St. Lawrence Action Plan in Quebec, the Fraser River Action Plan in British Columbia, the Atlantic Coastal
Action Plan in the Maritimes, and the Northern River Basin Study in Alberta.
You can find Remedial Action Plans and associated documents at public and university libraries, on the Internet (for the
Great Lakes, see www.cciw.ca/glimr/raps/intro.html), and at the Environment Canada offices in Ottawa.
These reports identify the particular area’s environmental problems, often specifying pollution point sources and the
associated contaminants – information you can use to find pollution and to focus your analysis once you’ve taken samples.
4.3 Certificates of Approval (C of A)
Certificates of Approval (C of A) would be better named "pollution permits" since they define what contaminants, and in
what concentrations, a polluter is allowed to release. In accordance with the Ontario Water Resources Act, every discharge
to the environment in Ontario must be covered by a C of A issued by the Ontario Ministry of the Environment. Other
provinces also issue C of A, or discharge permits under different names. Almost all discharges have compliance limits as
part of their C of A and require the operator to provide samples for monitoring.
You should examine certificates to determine if the discharge you have tested is in compliance with the pollution permit. A
polluter’s failure to send in monitoring samples may also constitute an offence (subject to a limitation period) since it shows
a blatant disregard for the environment and the C of A’s conditions.
To obtain a copy of a C of A and its associated requirements (often found in appendices) in Ontario, contact the Ministry of
the Environment district office where the polluter is located, which may refer you to the Approvals Branch. You may have
to send a Freedom of Information request (see section 4.1) to obtain these documents.
4.5 Municipal-Industrial Strategy for Abatement (MISA)
The Municipal-Industrial Strategy for Abatement (MISA) aims to control contaminants in municipal and industrial
discharges in Ontario. It uses an industry-based approach in which final clean water regulations under the Ontario
Environmental Protection Act (EPA) were defined in 1993 in consultation with industry for the following sectors: municipal
sewage treatment plants, petroleum companies (Regulations 537/93, 524/95), pulp and paper mills (Regulations 760/93,
521/95), organic chemicals manufacturers (Regulations 63/95, 522/95, 50/98), inorganic chemicals manufacturers
(Regulations 64/95, 523/95), metal mining (Regulations 560/94, 169/96), iron and steel manufacturers (Regulation 214/95),
electric power generation (Regulations 215/95, 525/95), metal casting companies (Regulations. 562/94, 526/95), and
industrial minerals (Regulation 561/94). These restrictions only apply to plants identified in the schedules of the specific
regulations.
Search the Ontario Ministry of the Environment web site for more information.
Similar programs may exist in other provinces.
4.6 National Pollutant Release Inventory (NPRI)
The National Pollutant Release Inventory – created under the Canadian Environmental Protection Act (CEPA) in 1992 –
makes information available to the Canadian public about pollutants released into the environment.
The NPRI only monitors the substances that appear on its list, which does not include pesticides, ozone-depleting
substances, or other contaminants that are banned or are covered by other acts and regulations. The original 1993 list
consisted of 178 substances; the current list has 268, which are listed in Appendix B.
NPRI is not a voluntary program, but not all companies are required to report. Only those that manufacture, process, or use
more than 10 metric tonnes (10,000 kg) at a concentration greater than or equal to 1% by weight (except for byproducts) of
NPRI-listed substances and have more than 10 employees who worked a total of 20,000 hours or more annually must file a
report. (There are some exceptions to these requirements.) Failing to submit a report, or filing a false, misleading, or late
report may be considered an offence under CEPA. Even if a facility meets the requirements for reporting for only one of
the NPRI-listed substances, it must also report the quantities of the other substances it used, even if that quantity is zero.
The NPRI only reports annual total releases, not concentrations of a substance in a discharge. Because the releases may
change between the time the company files its report and when the information becomes public, NPRI data provides only
limited guidance in an environmental investigation of a specific problem.
NPRI information is available on the web at www2.ec.gc.ca/pdb/npri or from the offices listed in Appendix H.
4.7 Ontario’s Environment Registry under the Environmental Bill of Rights (EBR)
You can find EBR’s Environmental Registry on the web at www.ene.gov.on.ca/envision/env_reg/er/registry.htm.
The Environmental Registry provides Ontario residents with information on government ministries’ environmentally
significant proposals and decisions and allows them to comment on the posted proposals for new acts, regulations, policies,
or instruments (permits, C of As, and so on). Postings include the name and contact information of a ministry person. The
comment period is usually 30 days, but the postings stay on the registry for viewing after that period expires. The registry
may yield documents helpful to your investigation and lead you to other helpful information.
See section 7.1 for more information on the Environmental Bill of Rights.
4.10 Land titles
The common law provinces (all but Quebec) have two conceptually different systems of recording interests in land: the
registry system and the land titles (or Torrens) system. The registry system registers or records interests in land but does
not actually declare who owns it. To determine ownership and whether any encumbrances are outstanding against the
land’s title, a researcher must examine the records for the previous 40 years. The land titles system declares the current
state of title to any registered parcel of land. An investigation of title under the land titles system requires only a review of
current registrations.
To discover who owns a parcel of land or to trace its recent ownership history, two options are open to you: You can do it
yourself, or you can hire someone to do it for you. Hiring a title searcher to find the information is easier but more
expensive.
To find a land title yourself, determine the correct registry office for the parcel, generally the office for that county (in
Ontario, you can look in the blue pages, under the Ontario Ministry of Consumer and Commercial Relations), and go to the
office with as much information about the property’s location as you can find. Go to the tax assessment rolls, usually kept in
the registry office’s public area (or ask the staff), find the legal description of the land on the tax rolls under the name of the
owner or, if you don’t know the owner’s name, from the large map that shows lot and concession divisions (and registered
plans of subdivisions or towns).
Once you obtain a description of the property, request the "book" in which that property is recorded. The consulting fee for
each book is approximately $5. In the book, look up the parcel of land you are interested in. The last "transfer" indicates to
whom the parcel was last sold. In the registry system, you can look at the ownership history. In the Torrens system, only the
last page of the history will be available.
All documents are numbered in the book, so you can request to look at the actual document (deed, mortgage, certificate of
pending litigation, registered plan survey, and so on). You will not be allowed to remove documents from the registry office,
but copies can be made (usually at a cost of $0.50 per copy).
Many freelance title searchers work out of their own offices, while others take calls at the registry offices. Most land
registry offices have two phone numbers: one for the registrar and staff and the other for title searchers. Often the best
way to find a title searcher is to phone the local land registry office for the county in which the parcel of land is located
(most registry offices are responsible for one county).
Many title searchers will be able to quickly confirm the present owner of a parcel of land for about $20. If possible, tell them
who owns it (if you want the details of the size and location of a parcel) or who owns land adjacent to it. Specify the land’s
location as precisely as you can (e.g., the address, the lot and concession number, the lot or block number on a registered
plan, or a registered plan of subdivision). Provide all ownership information you may have obtained through other means (a
copy of a deed to the land, names of current or previous owners, or neighbouring owners). Title searchers will also be able
to tell you what information will best help them locate the parcel you are looking for.
A title searcher can provide you with a copy of the most recent deed to the land, a legal description of it, possibly a survey if
one exists, a copy of the relevant part of the assessment map, and the map created for tax assessment purposes, which will
help you locate the property in a larger context. A title searcher can also tell you whether any encumbrances are attached
to the land.
Neither system of registration records every interest or claim that may affect land ownership. You may need to conduct
other searches to determine who is responsible for a parcel of land. For example, you may want to find:
- provincial taxes, municipal taxes, assessments, school and water rates
- unregistered liens and easements created by statute
- valid existence of corporate owners during their periods of ownership
- any lease or agreement for lease where there is actual occupation under it
- any easements acquired by adverse possession (even in respect of lands registered under the land titles system that were
acquired prior to the date that the lands were registered under that system)
- any right of expropriation or any other right vested in the Crown by the authority of a statute of Canada or any province
These matters can result in claims against a title to the land not registered at the land registry office.
4.11 Interviews
In the course of your investigation, you will talk to many people, including company representatives, government officials,
and scientists. After a discussion, always write down the date, the person’s name and affiliation, and a contact number or
address. Keep accurate notes of what you and the interviewer said. Do not colour the exchange, but do indicate your
impressions, such as whether you felt the person was being honest, or if the person was downright aggressive or even
threatening.
E-mail is a wonderful tool. Remember to keep copies of the messages you send and receive since you or your lawyer may
use them as evidence.
Questions to ask
Since polluters often use a due diligence defence – arguing that they have taken all reasonable steps possible to prevent
committing an offence – it is one of the first lines of questioning to follow. Are the offenders aware of what they are doing?
If so, have they done anything to stop or at least mitigate the offence’s impacts? Did they spend any money on
contamination control or did they just wait, perhaps planning a study, delaying as best they could while keeping face in front
of the public and abatement agency? (See Enforcing Environmental Law by Linda Duncan and The Price of Pollution
by Elizabeth Swanson and Elaine Hughes for more information on the defences available to accused polluters.)
Who to ask
Try to interview the most senior manager in control.
Tape recording
If you intend to record your conversation, remember the following:
- You must obtain permission.
- Make sure your equipment is working properly.
- Use fresh tapes for each interview.
- You will likely need transcripts to help refresh your memory if the case goes to trial and to give to the defence.
Confirming in writing
In addition to keeping notes of your conversations, it is also a good idea to confirm the content of your exchange in writing
with the person involved. This gives him the opportunity to respond and/or clarify some points, as well as sometimes
providing supporting documents. Section 7.0 includes examples of letters to government investigators.
