Environmental law shows 'pattern of non-enforcement'

Lawyers for environmental group Ecojustice say their assessment of Ottawa's record on environment shows criminal investigations have fallen in recent years despite growing numbers of police.

Ecojustice study says number of investigations falling despite increase in enforcement officers

In the United States, someone concerned about the environmental effects of the smokestack down the street can go to a single website and find out everything the government is doing to keep the smokestack's operators in line.

In Canada, it takes a law office, a team of 10 law students and two years of combing through reams of paper to find the answer. And even then, it's not complete.

Environmental lawyers at Ecojustice have just concluded an assessment of Ottawa's record of cracking down on environmental crime.

The assessment says Canada's environment police have grown in number over the past few years but, at the same time, they've pulled back on their prosecutions and convictions.

"What it does tell us is that there's a pattern of non-enforcement," says Will Amos, lead author of the report released today.

Rare is the time a corporation is found in contravention of one of Canada's environmental protection laws. And even then, fines are so low they are not much of an incentive to follow the law, the study says.

The multi-year study of enforcement pulls information from a wide variety of public sources in an attempt to get a full picture.

Under the Canadian Environmental Protection Act, for example, the number of enforcement officers has more than doubled over the past decade — to 188 in 2009 from 90 in 2000.

But at the same time, the number of inspections those officers undertake has remained relatively stable, at about 5,000 a year since 2004.

The number of resulting investigations has slid over the past decade. And wrongdoers are most likely to get off with a written warning, the study shows.

Prosecutions are rare, and convictions even rarer. Only twice in the past decade has the number of convictions reached double digits in a single year.

There have been just 23 convictions in the past three years, with violators facing an average fine of $10,524, the study shows.

"The total number of prosecutions and convictions is extremely small in relation to the number of inspections, warnings and investigations," the report says.

"Bringing an alleged violation to the attention of a regulated entity will not force the violator to return to compliance.

"Since the credible threat of a successful prosecution is crucial to achieving a deterrent effect, these low absolute numbers (and the small fines accompanying convictions) give rise to concern regarding the overall effectiveness of the CEPA enforcement regime."

Similar conclusions are reached for the Fisheries Act, the Species at Risk Act and other federal legislation and regulations.

On Tuesday, the federal environment auditor general is to release his own findings into how well Ottawa has enforced the Canadian Environmental Protection Act.

Lack of public information

But the report's largest concerns rest with the dearth of public information available on how Canada's environmental laws are being enforced.

"At present, only partial and piecemeal information regarding the federal government's enforcement of environmental laws is made available to Canadians through annual reports, enforcement notifications and news releases," the evaluation says.

That's despite numerous complaints from the Office of the Auditor General and the information commissioner about Environment Canada's willingness to make key information public in a timely manner, the report says.

Ecojustice had to devote considerable resources to combing public websites and quantifying disparate pieces of information contained in sporadic annual reports and government documents, Amos said.

The approach in the United States is a stark contrast. There, information on environmental enforcement is gathered into a single portal. The information is presented in a consistent format regardless of the federal law or statute at hand. And it's searchable.

"Canada's government would do well to emulate the (American) approach so that Canadians might also find out for themselves with a simple mouse click what is going on -- or not going on -- with the enforcement of regulated activities in their neighbourhood or community," the Ecojustice report says.