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Why isn’t BC charging polluters?

February 28, 2010

As West Coast Environmental Law reported in a separate post, BC’s enforcement of environmental laws continues to drop.  And, as I noted in that post, in addition to general job in enforcement there is also reason to be concerned about the drop in convictions under environmental laws.  

Charges (which result in convictions) are usually reserved for more egregious violators.  They require more preparation time, involve the expense of going to court and usually involve more serious consequences (large fines or even jail time).  When a Ministry proudly announces that an environmental statute may result in charges of up to $1-million and jail time of up to 6 months it is referring to the consequences of a conviction. 

Tickets are penalties issued directly by the Conservation Office Service (COS).  They are generally minor offences, and carry with them relatively small fines (typically the hundreds of dollars range).  Violators do not need to appear in court unless they contest the ticket, meaning that tickets are cheaper to use than charges and result in immediate penalties.  Consequently, significantly more tickets will generally be issued than charges (and convictions).

We have analyzed ticket and conviction data for 6 environmental statutes enforced by BC’s Conservation Officer Service: the Environmental Management Act (and its predecessor); the federal Fisheries Act; Integrated Pest Management Act (and its predecessor); the federal Migratory Birds Convention Act; the Water Act and the Wildlife Act.

Enforcement.jpg

Not surprisingly given the resources required to prosecute a charge there are far fewer charges (and convictions) than tickets.  This makes sense – the vast majority of violations are not major and a ticket is quite adequate.  The expense (for the Crown) and hardship (for the violator) would simply not be justified.  In the 1990s about 85% of penalties were through tickets, and about 15% (on average) through convictions.  That’s an average of 467 convictions per year for the 1990s. 

Between 2006 and 2008 the figure has been about 97% of penalties through tickets, and 3% through convictions, or an average of 47 convictions per year.  (The average for the whole decade of 2000 to 2009 is about 6% convictions - a little more than 120 convictions per year). 

There were 38 convictions in 2008 and based on first and second quarter statistics there will probably be about the same number in 2009.  Thirty-eight convictions is currently the lowest number of convictions since 1990 – even lower than 2004 which was the worst year for enforcement overall, and far lower than the high of 172 in 1990. 

Tickets don’t cut it

Tickets are simply not adequate to address major violations or repeat violations – the penalties are simply too low – particularly for a business seeking to reduce its costs.  The highest possible fine under a ticket under BC’s Environmental Management Act is $575. 

The government’s Compliance and Enforcement Policy recognizes that tickets will not always be appropriate, and states that “[g]enerally a ticket responds to minor offences and prescribes a monetary penalty to be paid.”  The same policy recognizes that charges will be appropriate in a number of circumstances:

[F]ormal charges may be recommended where the circumstances such as the severity of actual or potential impact to the environment, human health or safety, the factual circumstances of the alleged offence or the compliance history of the offender are such that other compliance tools would likely be ineffective and prosecution may provide the most effective way to achieve compliance, or there is a need for general deterrence that would result from a court hearing.

Additionally, the integrity and effectiveness of the regulatory regime established to protect the environment, human health and safety is highly dependent on compliance with administrative requirements such as the provision of data or licensing information. Failure to comply with such regulatory requirements, even in the absence of environmental damage, may threaten the regulatory regime and staff will consider appropriate responses, including the recommendation of formal charges.

The Compliance and Enforcement Summaries don’t give a lot of details about why and when tickets are issued, but some of the $575 tickets being routinely issued to businesses and individuals under the Environmental Management Act certainly sound serious, including:

  • Introducing waste into the environment without complying with the company’s government issued permit or other authorizations;
  • Failing to follow orders of Ministry of Environment staff;
  • Incorrect handling of hazardous waste. 

Some of the companies have been ticketed on multiple occasions.  For example Bath Mill Inc. received two tickets for introducing waste into the environment without compliance with their authorization in 2009 and one for introducing waste into the environment through a prescribed activity in 2008.

As West Coast Environmental Law wrote in No Response, our 2007 publications reviewing compliance and enforcement statistics between 1990 and 2005, strong environmental enforcement works when would-be violators know that there’s a likelihood of being caught and a likelihood of real consequences.  A $110 ticket for littering is a real consequence given the offence, but a $575 ticket for incorrect disposal of hazardous waste by a business paid to handle hazardous waste is not. 

But quite aside from the effectiveness of tickets, there’s real questions about what a failure to prosecute says about the importance society attaches to the environment.  Do we believe that environmental crimes are “real crimes”, deserving of sanction, or, alternatively, some sort of “soft crime”, deserving of a slap on the hand?  Do we recognize that air pollution kills people and that poached Grizzly bears leave us all a bit poorer, or are these mere hiccups on the way to economic prosperity? 

Convictions vary by Act

We can also see how enforcement varies by Act for the 6 statutes I have reviewed, and it’s interesting to note that charges appear not to be part of the province’s arsenal for certain statutes. 

Convictions.jpg
* - The final figures for 2009 were not available when this graph was generated.  The 2009 figure has been derived from the 1st and 2nd Quarter figures, and this graph will be updated when the final figures are available. 

The Wildlife Act is, and usually has been, responsible for the large majority of convictions (about 41/year on average for 2006-2008).  This is followed by the Environmental Management Act, which regulates major sources of pollution, at a little more than 4 convictions a year.  The federal Fisheries Act averages just over 1 conviction a year during that period, while the other statutes average below one or have had no convictions at all since 2006. 

Notably, there has not been a single successful conviction under the province’s Integrated Pest Management Act since that statute was enacted in 2003 (there was a single conviction in 2003, but it was in respect of an offence under the earlier Pesticide Control Act).  That Act provides for penalties of up to $200,000 and 6 months in jail for a first offence by an individual (and larger offences for corporate violators), but these provisions have not been used once. 

It’s not that there have not been cases that could have resulted in charges.  West Coast Environmental Law reported previously on the decision of the Residential Tenancy Branch to compensate Sylvia and Nicola Lavigne after their landlord, Angelo Mazzarolo, illegally sprayed pesticides in their apartment building.  Mr. Mazzarolo’s actions violated several sections of the Integrated Pest Management Act and its regulations and resulted in at least 2 apparent cases of pesticide poisoning.  The Ministry staff who investigated the spraying wrote:

Mr. Mazzarolo has no previous compliance history;  however, by entering people’s homes and applying pesticides, and providing no notification, he showed no regard for the rights and safety of others making it doubtful he would do so in the future.  He has since proceeded with eviction actions against some of the tenants involved. 

Despite the Ministry’s recognition of the seriousness of Mr. Mazzarolo’s actions, the Ministry ultimately gave Mr. Mazzarolo a ticket for $575 for not having a licence when he applied the pesticide. (The subsequent Residential Tenancy Board complaint brought by the Lavignes relates to civil liability and has nothing to do with the government's enforcement in the case). 

What do you think?

Do you think that the low penalties for tickets, combined with the low number of charges, is compromising compliance with BC’s environmental statutes? 
Do you have other stories in which an environmental violation that caused or could easily have caused human health impacts or serious damage to the environment resulted in a ticket, a warning or nothing at all?  Tell us about it in the comments section below.  Or e-mail me at agage(at)wcel.org. 

Related posts: BC's plummeting environmental enforcement.