Successful non-suits of environmental prosecutions are rare. A
non-suit is granted only when the Crown has failed to offer any
evidence, no matter how manifestly unreliable, of the essential
elements of the offences charged.
I was therefore particularly pleased to achieve three non-suits
on October 18. Judge Mackey of the Ottawa Court of Justice
dismissed three charges against a family-owned waste management
company, the president and general manager. All three charges
stemmed from Ministry of the Environment inspections of the Lacombe
Waste transfer site, and involved unwarranted allegations of
mishandling of hazardous waste. The ministry officer insisted, for
example, that certain wastes were stored in improper locations,
even though they were exactly where the certificate of approval
directed them to be. In a second count, the officer demanded that a
used container be treated as hazardous waste, despite the specific
rule in regulation 347 that a container with less than 2.5 cm of
waste in the bottom is legally "empty" and is not
hazardous waste. In the third case, the officer insisted that other
containers were hazardous waste without checking whether there was
anything in them.
The most interesting legal point was the question of onus of
proof. Justice Mackey accepted my submissions that the Crown has
the onus of proving there is more than 2.5 cm of waste in a
container, if it wishes the contents of the container to be
considered as hazardous waste. The trial is continuing on the
In my view, the Crown should never lose a non-suit, because they
should not bring doubtful cases to trial. When I was a prosecutor,
it was a point of pride not to drag defendants to trial unless we
had admissible evidence on every key point. It was our view that
bringing prosecutions without clear evidence wasted both public and
private resources, and tended to bring the law into disrepute. The
Crown has many other tools for dealing with lesser matters,
including warnings, orders, and environmental penalties.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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