Most of the "Open for Business Act" changes to Ontario
environmental laws won't take effect till next year or so. But
one important change has already happened: they may be able to make
For more than 20 years, there has been an uneasy tug of war
between the Ministry of the Environment's desire to obtain
evidence of environmental offences, and the reluctance of those
facing the ministry's enforcement muscle to give them that
evidence. The courts have upheld the rights of individuals and
businesses to decline to answer such questions, except where there
is a current emergency. That is, where the ministry requires
information right now to deal with a spill or other environmental
crisis that is underway, the businesses and individuals have had to
comply. But where the ministry is simply seeking to force people to
confess details of problems that have occurred in the past, people
have had a right to remain silent. This was upheld by the Ontario
Court of Appeal most recently in Branch v Ministry of the
The Open for Business Act has therefore added a new
section to the Environmental Protection Act and the
Ontario Water Resources Act. The new section allows any
provincial officer "for the purposes of determining compliance
of a person with the Act or the regulations" to require the
person to respond to reasonable inquiries.
No one knows yet what this means. The Canadian Charter of Rights and Freedom
protection against self-incrimination will undoubtedly be raised to
limit scope of the new power. Courts have already ruled that the
normal powers of inspectors under, for example, Section 156 of the
EPA, don't apply to investigators once they have reasonable and
probable grounds to believe that an offence has been committed.
Presumably, the same limit will apply to the new section. But that
charter protection will be of little comfort to individuals,
municipalities, and businesses if they can be forced to confess, in
detail, by an inspector, who then hands the resulting statement
over to an investigator for use in a prosecution, or for
Other obvious questions about the new provision include:
What inquiries are "reasonable"?
How quickly must they be answered?
How detailed must the answer be?
Must the questions or answers be provided in writing?
Are there any circumstances in which an investigator can use
the new power?
Can the provincial officer demand details of all potential
defences to a future charge?
Should the person state that the answers are not voluntary, and
object to the potential use of these responses against them for
Should the person state that the provincial officer is forcing
them to answer the question before they have been able to complete
their investigation, that the answers provided are provisional and
may not be correct?
Should the person include a claim for confidentiality for the
purpose of subsequent freedom of information requests?
The one thing that is clear about the new power is that
individuals, municipalities and businesses faced with a demand for
information need to consult their lawyer before answering the
questions. Once an answer has been given, it may never be possible
to take it back.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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