What is the due diligence defence?

For strict liability offences, once the prosecutor proves the prohibited act, the defendant can avoid conviction by establishing on a balance of probabilities that all reasonable care was taken to prevent it. The defence depends on documented systems, training, maintenance and response procedures that existed before the incident.

Can directors be personally prosecuted?

Yes. Federal and provincial environmental statutes commonly impose a duty on directors and officers to take all reasonable care to ensure the corporation complies, and they can be prosecuted personally whether or not the corporation is convicted.

Are inspection powers the same as search powers?

No. Regulatory inspection powers are broad and do not require a warrant, but once the predominant purpose becomes the investigation of an offence, section 8 of the Charter applies and a warrant is normally required. Evidence gathered on the wrong side of that line can be excluded.

Specialized Prosecutions

Environmental Prosecution Lawyer in Canada

An environmental prosecution lawyer represents people and organizations in proceedings under Canadian Environmental Protection Act, 1999, the Fisheries Act, and provincial environmental legislation. This page sets out what the proceeding is, the allegations and standard of proof that apply, the sanctions that can follow and how counsel can help, then lists criminal defence firms you can contact.

Canadian Environmental Protection Act, 1999, the Fisheries Act, and provincial environmental legislation·Regulatory proceeding

What Environmental Prosecutions involve and who brings them

Environmental prosecutions are regulatory offences brought under federal statutes such as the Canadian Environmental Protection Act, 1999 and the Fisheries Act, and under provincial environmental protection and water resources legislation. They are heard in criminal courts and carry real penal consequences, including imprisonment for directors and officers.

Most environmental offences are strict liability offences. The prosecutor need only prove the prohibited act beyond a reasonable doubt; the defendant then bears the burden of establishing due diligence on a balance of probabilities. That framework comes from R. v. Sault Ste. Marie and it shapes the entire defence approach.

Liability commonly extends to corporate directors and officers through statutory provisions imposing a duty to take all reasonable care to ensure compliance. Building the due diligence record, including environmental management systems, training and audits, is preventive work that becomes the defence.

Allegations and standard of proof

These are regulatory proceedings rather than criminal prosecutions. Allegations are generally decided on a balance of probabilities, not beyond a reasonable doubt.

The prohibited act, such as a discharge, deposit or release contrary to the statute
That the substance or activity fell within the statutory definition
That the defendant, including a corporation, caused or permitted the act
For director and officer liability, the statutory duty to take reasonable care
Compliance with the limitation period applicable to the offence

Potential sanctions

Substantial fines, with minimum fines prescribed for designated offences under federal environmental legislation
Imprisonment for individuals, including directors and officers
Orders under the Environmental Damages Fund and remediation orders
Probation orders requiring compliance programs and public reporting
Reputational harm, debarment from government contracting and increased regulatory scrutiny

How counsel can help

Due diligence: that all reasonable care was taken to prevent the event
Officially induced error, where a regulator gave erroneous advice that was reasonably relied on
That the substance or discharge fell outside the statutory definition or an exemption applied
Challenging the sampling, chain of custody and laboratory analysis
Charter challenges to inspection powers used for an investigative rather than a regulatory purpose
Limitation period arguments, which are strictly applied in regulatory prosecutions

Environmental prosecution lawyer: frequently asked questions

What is the due diligence defence?: For strict liability offences, once the prosecutor proves the prohibited act, the defendant can avoid conviction by establishing on a balance of probabilities that all reasonable care was taken to prevent it. The defence depends on documented systems, training, maintenance and response procedures that existed before the incident.
Can directors be personally prosecuted?: Yes. Federal and provincial environmental statutes commonly impose a duty on directors and officers to take all reasonable care to ensure the corporation complies, and they can be prosecuted personally whether or not the corporation is convicted.
Are inspection powers the same as search powers?: No. Regulatory inspection powers are broad and do not require a warrant, but once the predominant purpose becomes the investigation of an offence, section 8 of the Charter applies and a warrant is normally required. Evidence gathered on the wrong side of that line can be excluded.

Find an environmental prosecution lawyer

Criminal defence firms listed on Criminal Lawyers Canada that identify Environmental Prosecutions among their practice areas. Featured listings appear first.