Is a piece of flying rock really a discharge that must be
reported under the Environmental Protection Act to the Spills Action Centre? In R. v.
Castonguay, a blasting contractor was fined $25,000 plus the victim
fine surcharge for failing to report fly rock to the MOE. Now,
Chief Justice Winkler has given Castonguay leave to appeal
its conviction to the Ontario Court of Appeal.
Justice Winkler stated that it was essential in the public
interest for this decision to be reviewed. The prosecutor argued
the legal issues were not of public importance, as they are limited
to blasting companies, and asked the Court to trust the ministry
not to prosecute in absurd and inappropriate circumstances. (Is
Castonguay itself a counter-example?) They also argued that
environmental significance is irrelevant to the obligation to
report, relying on their interpretation of R. v. Dow.
Justice Winkler noted that the public needs to know, in advance,
when it is obliged to report. Ex post facto discretion on the part
of the Crown won't work –if a member of the public
were to decide not to report an event, assuming that the Ministry
would not require it, and the Crown subjectively decided otherwise,
that individual would only become aware of the duty when they were
charged. It is not enough to rely on ministry discretion about who
it chooses to prosecute:
"Moreover, the duty to report is a proactive duty imposed
on members of the public requiring direction from the statute as
interpreted by the court, as to when this duty will be triggered.
The respondent's suggestion of an after-the-fact
prosecutorial discretion would not provide adequate guidance to
members of the public on how they can meet the regulatory
requirements of the EPA. In other words, if a member of
the public makes a conscious decision not to report on the
assumption that the ministry would view the incident as
inconsequential and that decision differed ultimately from the
subjective assessment of the crown, that person would only learn of
this when they were charged. This approach is unacceptable. The
public must be able to make a more informed decision as to their
obligation to report. I cannot accede to the respondent's
contention that prosecutorial discretion alone is a sufficient
answer to any uncertainty in the scope of the duty to report.
The interpretation of the duty to report is thus an issue
with great importance to the public.
 The respondent further states that the applicable law
raised in the instant case has already been decided by this court
in R. v. Dow Chemical Canada Inc. (2000), 47 O.R.
(3d) 577 (C.A.). It is the contention of the respondent that in
Dow the court considered, but was not persuaded by, an
argument that it was necessary to interpret the statute as
requiring that the discharge of the contaminant into the natural
environment itself had to be more than minimal or trivial.
 In Dow Chemical, an employee was exposed to a
release of chlorine gas, but there was no offsite impact, nor any
onsite impact except on the employee. Dow argued that it could not
be found guilty of an offence for discharge of a contaminant
causing an adverse effect if the discharge posed only a trivial or
minimal threat to the environment.
MacPherson J.A. was not persuaded by this argument. However, it
was ultimately unnecessary for him to decide whether a more than
minimal impact on the environment was necessary because he found
that the discharge of chlorine gas was not trivial. Recalling two
notorious incidents of chlorine discharge, he wrote at para. 36
that "it would be a rare case in which any discharge of
chlorine into the open air from an industrial plant would warrant
the adjectives 'trivial or minimal', provided the discharge
caused one of the 'adverse effects' set out in the
statute." Dow Chemical did not, therefore, decide the
issue of whether there could be a duty to report where there was an
adverse effect but negligible or no effect on the environment,
because those were not the facts in that case. Thus, I am not
persuaded that the issues raised in this case have been
definitively determined by this court."
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