Environment Canada – Environmental Protection Branch
http://www.atl.ec.gc.ca/enforcement/due_diligence.html
Notes On Possible Due Diligence Defence
The term "all reasonable care" is synonymous with "due diligence".
In the historic ruling on R. v. Sault Ste Marie, Dickson J. (as he then
was) created the class of strict liability offences. In that ruling he
defined these strict liability offences as:
"Offences in which there is no necessity for the prosecution to
prove the existence of mens rea; the doing of the prohibited act
prima facie imports the offence, leaving it open to the accused
to avoid liability by proving that he took all reasonable care.
This involves consideration of what a reasonable man would
have done in the circumstances. The defence will be available if
the accused reasonably believed in a mistaken set of facts
which, if true, would render the act or omission innocent, or he
took all reasonable steps to avoid the particular event." ([1978]2
S. C. R. 1299, (1978), 40 C. C. C. (2d)353 at 373,374.)
What sorts of evidence will be accepted by the courts as being valid
examples of due diligence? In the case of R. v. Bata Industries Ltd.
(1992, Unreported), Judge Ormston of the Ontario Provincial Court
sets out a useful checklist:
" I ask myself the following questions in assessing the defence of due
diligence:
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Did the Board of Directors establish a pollution prevention
"system". Was there supervision or inspection? Was there
improvement in business methods? Did he exhort those he
controlled or influenced?
Did each Director ensure that the Corporate officers have
been instructed to set up with a system sufficient within
the terms and practices of its industry of ensuring
compliance with environmental laws, to ensure that the
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officers report back periodically to the Board of the
operations of the system, and to ensure that the officers
are instructed to report any substantial non-compliance to
the Board in a timely manner?
The Directors are responsible for reviewing the
environmental compliance reports provided by the officers
of the corporation but are justified in placing reasonable
reliance on reports provided to them by corporate officers,
consultants, counsel or other informed parties.
The Directors should substantiate that the officers are
promptly addressing environmental concerns brought to
their attention by government agencies or other concerned
parties including shareholders.
The Directors should be aware of the standards of their
industry and other industries which deal with similar
environmental pollutants or risks.
The Directors should immediately and personally react
when they have notice the system has failed."
Defences Related to Due Diligence
i.
Reasonable Mistake of Fact
This defence goes to the mental element of a crime and so is
available for both strict liability and mens rea offences. "In the
strict liability context, the defendant's mistake must not only be
honest, but (using an objective standard) must also be
reasonable. To state the test another way, to establish lack of
fault the accused must establish that he or she was honestly
mistaken on reasonable grounds..." (1992), 2 J.E.L.P. 214, at
215).
ii.
Officially Induced Error
Also known as "mistake of law", this defence is to be
distinguished from mistake of fact. This defence may be
available if information or advice is provided by a person
responsible for administration of the law which leads the
defendant to believe that the law does not apply to their
particular situation.
1.
2.
3.
4.
5.
6.
7.
the actor must advert to his legal position
the actor must seek legal advice from an official
that official must be one who is involved in the
administration of the law in question
the official must give erroneous advice
the erroneous advice must be apparently reasonable
the error of law must arise because of this erroneous
advice
the actor must be innocently misled by the erroneous
advice - that is, he or she must act in good faith and
without reason to believe that the advice is erroneous
(R. v. Johnson and Wilson (1978(, 78 N.B.R. (2d) 411(Prov.
Ct.); R. v. Imperial Oil Ltd. (August 12, 1988) (Man. Prov. Ct.)
[unreported], summarized in (1988), 6 W.C.B. (2d)11.)
iii.
Abuse of Process
Abuse of process is not, technically-speaking, a defence at all
but rather it relies on the court's inherent jurisdiction to halt
proceedings before it feels that the judicial process is being
improperly used. The decision to abandon proceedings is taken
when it is clear that prosecutorial powers are being used in an
unfair, oppressive or vexatious manner.
In the context of environmental prosecutions, the "defence" has
occasionally been raised when charges have been laid despite
some type of understanding or agreement between the
defendant and the government that no prosecution would
commence, so long as the defendant followed a negotiated
schedule for reducing discharges.
The singling out of one individual or company over others is
not, in and of itself, an abuse of process. The case law on
abuse of process suggests that a successful abuse of process
motion would involve evidence that the defendants had relied in
good faith on the authorities and had suffered some prejudice
as a result of unfair dealings by the authorities. R. v. Simon
(January 24, 1992), file no. 1178/90 (Ont. C.A.) [unreported]
and R. v. Jordan Station Wholesale Florist Ltd. et al (November
5, 1991) (Ont. CT. Prov. Div., McGowan J.) [unreported]