Last week (April 20th), the federal government (as represented by Todd Gerhart of the Department of Justice - DOJ) announced that it would lay charges against the fish farm company, Marine Harvest, as a result of a private prosecution laid against the company by Alexandra Morton. I’m not going to review the facts of the case, which have been set out at length in articles in the Vancouver Sun and the Globe and Mail, as well as on Alexandra Morton’s blog. What I’m going to discuss is what this means for private prosecutions and to put a powerful legal tool in the hands of members of the public. As Alexandra Morton writes:
My lawyer Jeffery Jones … [said,] “Today’s decision by Mr. Gerhart and the Department of Justice confirms that no corporation is above the law. This is why private prosecutions are important democratic safeguards. Ms. Morton’s prosecution has triggered enforcement action by DOJ. I am extremely pleased by Mr. Gerhart’s decision.”
This is a great win for the environment, and Alexandra Morton deserves credit for having brought her private prosecution. Moreover, it’s the second time that she’s used a legal tool that has been pretty ineffective in BC to great political effect. In 2005 Alexandra launched a prosecution against Heritage Salmon Limited for introducing sea lice into the environment without a permit under the Fisheries Act, and against the BC government for allowing it to do so. While those charges were ultimately stayed by a special prosecutor appointed by the BC government, Alexandra pulled off a political win when a scientist hired by the prosecutor confirmed that her scientific evidence of the impacts of sea lice on wild salmon was sound:
Having reviewed the evidence specific to the Broughton Archipelago, additional studies available in the scientific literature on the impacts of sea lice upon salmonids worldwide, having visited the Broughton Archipelago, and based on my past work experience, I am of the opinion that sea lice in the Broughton Archipelago are infecting and killing pink salmon.
In addition to the wins, however, Alexandra, and her lawyer Jeff Jones, are breathing new life into an important legal tool that many of us had given up for lost. This blog post will summarize the limits of private prosecutions in BC, and then report on a conversation that I had with Jeff Jones about how he made this prosecution work and how private prosecutions can work to enforce other environmental laws.
Limits of Private Prosecutions in BC
In BC and Canada charges are usually laid and brought by the provincial government, albeit, in the case of environmental offences, less and less often these days. But it is possible for charges to be laid by any individual. Pollution Probe’s Environmental Bureau of Investigations encourages members of the public to lay charges in their Citizen’s Guide to Environmental Investigation and Private Prosecution.
In Canada, everyone has the right to initiate a private prosecution against a person, or an entity, who allegedly violates the Criminal Code or a legislated statute that provides for penalties for violation. A private prosecution involves an individual, or a group of individuals, gathering evidence of a wrongdoing and laying charges against the alleged offender.
In essence the private prosecutor takes the evidence that a crime has been committed before a judge, and the judge, if satisfied that there is evidence of an offence, may issue a summons requiring the individual(s) being charged to appear in court.
However, at common law and under the Criminal Code of Canada, the Attorney General has the power to step in and take over the case. And in BC the provincial Attorney General has without exception done so, and then stayed the charges (ending the prosecution). The Attorney General can do that. When John Werring, a fisheries biologist then with Sierra Legal Defence Fund, tried to go to get a court to review the government’s decision to stay a private prosecution (it was the fifth one that they had laid about sewage from Greater Vancouver that had been stayed), the BC Court of Appeal made it very clear that the government has a near complete ability to decide what charges go forward.
Although environmental lawyers have continued to lay private prosecutions, very few have proceeded, leading to a perception that the BC government has a policy of not allowing private prosecutions to proceed. If that policy exists, I have never seen it, and it is probably fairer to say, as Christianne Wilhelmson of the Georgia Strait Alliance has, “In B.C. it's been decades since a private prosecution actually went through to the end…”, or as Linda Duncan, then with the Alberta Environmental Law Centre (now a federal MP), did in her book on 1990s book on private prosecutions:
[It] has been the experience of private informants that regardless of the legal basis for their case or the strength of the evidence collection on their own accord, the Crown has intervened to stay the proceedings.
This is not the case everywhere – there are a number of private prosecutions that have been allowed to proceed in Ontario. Indeed, Jeff Jones tells me that Ontario has even allowed “hybrid” prosecutions, in which both the private prosecutor and the Crown play a role in the prosecution. And the federal government has recently taken over the prosecution of Syncrude for bird deaths in its tar sands operations.
Alexandra Morton’s use of Private Prosecutions
After years of frustration at government inaction on the environmental impacts of fish farms, Alexandra seems to have turned to private prosecutions as a preferred legal strategy. Given the above limits, how has she been so successful?
I asked Jeff Jones about the Department of Justice decision to lay new charges based on Alexandra’s private prosecution against Marine Harvest , and how he had managed to get the matter dealt with by the federal government, rather than the province, with its historically poor record on private prosecutions.
Jeff said that this case was possible because the jurisdiction for fish farms is now “firmly back with the federal government, where it belongs,” and not with the province. When the prosecution was launched, he received a call from the federal Department of Justice, rather than the provincial Ministry of Attorney General. When he asked them why the federal government was playing this role, when in Alexandra’s 2005 prosecution the province had taken the lead, he was told “the Jurisdiction has now changed.”
This seems to be a result of Alexandra’s constitutional challenge to the province’s regulation of fish farms, in which the courts ruled in 2009 that the federal government is responsible for fish farms (previously the federal government had largely washed its hands of the issue). As a result, the federal Department of Justice is now taking a more active role in prosecutions. Jeff Jones said:
This is a benefit of having one level of government responsible for the regulation of fish. Some people have wondered whether the federal government taking over the regulation of fish farms was a good thing – the Department of Justice decision to proceed with these charges confirm that it was.
So how did Jeff convince the Department of Justice to proceed with the prosecution? Jeff enthusiastically referred me to the Department of Justice Federal Prosecution Service Deskbook. This book, which guides federal prosecutors, has a whole chapter about private prosecutions, and endorses the important role that members of the public play in enforcing the law:
The relationship between the private citizen, as prosecutor, and the Attorney General, who has exclusive authority to represent the public in court, has been described as follows
“The right of a private citizen to lay an information [a first step in a private prosecution], and the right and duty of the Attorney General to supervise criminal prosecutions are both fundamental parts of our criminal justice system.”
In particular, Jeff pointed to a statement that: “the right of a citizen to institute a prosecution for a breach of the law has been called ‘a valuable constitutional safeguard against inertia or partiality on the part of authority.’” He said:
That's exactly what happened here. These fish farms appear to have operated outside the [federal] Fisheries Act for years, due to both inertia and partiality on the part of the government. It took Alexandra laying those charges, and the Department of Justice doing its job, to get this issue before the courts.
Jeff says that in trying to persuade the Department of Justice to proceed with the charges he referred them to their own Desk Book, as well as to common law authority on the importance of private prosecutions in enforcing the law.
Evidently it worked.
Jeff is very excited about what this means not just for Alexandra and the fish farm issue, but for other environmental laws that are not being enforced.
Anyone who has an environmental problem where the law is not being enforced should be turning to private prosecutions. This legal tool is about ordinary people defending democracy and protecting their environment.
West Coast Environmental Law couldn’t agree more.