COMPENDIUM OF SUMMARIES OF JUDICIAL DECISIONS IN ENVIRONMENT RELATED CASES

CANADA

Canada - Liability of Government Officials, Water Pollution

R. (ENVIRONMENT CANADA) v. R. (NORTHWEST TERRITORIES CANADA)

(1993)12 C.E.L.R. (N.S.) 55 NORTHWEST TERRITORIES TERRITORIAL COURT

The Government of the Northwest Territories was charged for discharging raw, untreated sewage of up to 56,000 cubic metres from the Iqaluit sewage lagoon into the waters of Koojesse Inlet on Baffin Island in the Northwest Territories. The lagoon is owned and operated by the Government of the Northwest Territories.

Decision

The judge found that the Territorial Government failed to exercise due diligence in the prevention of the sewage discharge. The lagoon had failed five tirnes in ten years; the Government had the policy, the necessary engineering and scientific studies, and the management and operational guidelines. If the policy had been applied, it would have prevented the offence.

For the above reason, the Territorial Government was convicted and fined $49,000. It was also ordered to pay $40,000 to Environment Canada in trust for the purpose of promoting conservation and protection of fish and fish habitats in the Northwest Territories.

The judge rejected the joint submission of the parties that the accused, being a "Government", be excused from financial penalty since a fine would amount to the transfer of the same taxpayers' money from one government's consolidated revenue fund to another's and therefore inappropriate and/or unnecessary.

It was the judge's view that a more compelling argument may be made for the opposite perspective, that governments accused of offences should receive no special consideration and, indeed, that very fact may be taken in aggravation in the proper case.

The judge noted that governments can commit offences as readily as humans or corporations and they are not immune to breaking the law. Government conduct resulting in an offence against the law is not something that should be taken lightly. It is the antithesis of good government and arguably constitutes a breach of trust.

The judge quoted the following passage from a Judgement of a superior court judge in Quebec, where Environment Canada had successfully prosecuted Public Works Canada (another R. v. R. prosecution),

"..the Court must be much more severe when such a disaster is caused by agents of an arm of the Crown, since it is precisely the Crown on which the public relies to protect both the resource species and the environment."