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For most of the last 200 years, prosecution of those who break the law has been primarily a government prerogative. However, determined private prosecutors can enforce the law with more credibility and success than seemed possible a generation ago. And governments have been the principal targets.

Environmental Defence Canada recently succeeded in a private environmental prosecution against the Ontario Realty Corporation (ORC). ORC was convicted of breaching the Ontario Environmental Assessment Act after selling public land that contained the remains of a Huron longhouse, to build a Catholic cemetery. It was required by its class environmental assessment document to consult with First Nations representatives before disposing of land with First Nations cultural significance. Instead, ORC simply protected the longhouse with a heritage easement. The ORC was fined $7,500.

A few years earlier, the City of Hamilton pleaded guilty to private charges that it discharged toxic leachate from its Rennie Street landfill into Red Hill Creek, contrary to the Fisheries Act. The Fisheries Act is one of the few Canadian statutes that rewards private prosecutors; they get one-half of any fine imposed. (The other half goes to the Crown.)

The private charges shamed the Ministry of the Environment (MOE) into laying their own, and provoked the city into funding a massive cleanup ($8 million). Justice Casey imposed the lion’s share of the fine ($300,000) on the private prosecutor’s charge, resulting in a payment to them of $150,000. The city was fined another $150,000 (plus a $37,500 victim fine surcharge) on the MOE’s charge, and was ordered to implement a plan to prevent future discharges.

Admittedly, private prosecutions have a much lower success rate than public prosecutions. Most private prosecutions are ultimately withdrawn or dismissed. In part, this is because public prosecutors (i.e. the government) have the right to take over any private prosecution and discontinue it; or to take over the prosecution and continue it; or to allow it to continue.

For example, the attorney general took over and withdrew charges by Jim Robb against York Region for alleged violations of the Fisheries Act in building the York Durham Sewage System (known as the “Big Pipe”). In order to construct the controversial $870 million sewage pipe, the region dewatered parts of the huge Oak Ridges Moraine aquifer, drying up wells, creeks, and fish habitat. There was far more environmental impact than originally predicted, and the region did not obtain either a federal environmental assessment or a Fisheries Act permit for the dewatering.

Some prosecutions by the British Columbia Fraser River Waterkeepers have also been taken over and dismissed.

Still, even prosecutions that fail to result in convictions can have an impact. In R. v. MOE, the private prosecutor charged the MOE with failing to stop arsenic leaking from the abandoned Moira River gold mine. The MOE had taken over Ontario’s most contaminated site as a “remediator of last resort” in 1979. By 1997, it had not complied even with its own certificate of approval. The MOE was acquitted after a long trial, for reasons that remain unclear and certainly would not have amounted to due diligence for other defendants. But if not for these charges, the remediation funding might well have been cut again.

Janet Fletcher provoked millions of dollars’ worth of corrective work by laying private charges against the City of Kingston for oozing landfill leachate into the Cataraqui River. Both the city and the MOE had known about this for years, but neither had done anything about it. Once the private charges were laid, the MOE was shamed into action, and quickly levelled their own charges against the city and its Director of Environmental Services. The city then began an aggressive (and overdue) campaign to contain and treat the leachate. Although the Court of Appeal set aside the convictions on Fletcher’s charges, this was a major success, and led to similar charges and a guilty plea by the City of Moncton.

The Lake Ontario Waterkeeper also claimed a hard-earned victory when it withdrew charges of mercury pollution against DTE Energy, in exchange for a U.S. government pledge to take action on mercury emissions from coal plants (see www.waterkeeper.ca/2007/03/08/edwards-v-dte-energy-information-page/).

Public prosecutors are less likely to discontinue a private prosecution today than they used to be, and are supposed to do so only when:
- there is so little evidence that there is no case to answer; or
- the prosecution is likely to damage the interests of justice.

But that is only the first step. A generation ago, if environmental groups escaped having their charges withdrawn by the attorney general, they received a cold welcome from the courts. In R v. Cyanamid Canada Inc., (1981) 11 CELR 31, where the judge had no choice but to convict, he showed his displeasure by imposing a $1 fine.

Today, private prosecutors get a lot more respect from the bench. As the Canadian Law Reform Commission put it:“This form of citizen/victim participation enhances basic democratic values while at the same time it promotes the general image of an effective system of administering justice within the Canadian state.” 

Although private prosecution remains difficult and expensive, “how to” information is freely available (see www.e-b-i.net/ebi/guide.html) and several environmental groups are committed to it. For anyone with a controversial project, private prosecution remains a force to be reckoned with.

Dianne Saxe is an environmental law specialist and heads the environmental law boutique Saxe Law Office in Toronto.