3A – Due Diligence in Environmental Prosecutions: A Mock Trial

Best Practices for Supervisors and Managers

Course Agenda

October, 2020
Course Description

Million dollar fines. Personal liability. Go directly to jail. Do not collect $200.

Crown Prosecutors are more vigorously prosecuting environmental violations and seeking higher fines against companies and individuals alike. Defence counsel in environmental prosecutions must leave no stone unturned in rebutting the Crown. Defendants and their counsel must avail themselves of all defences and strategies to defend against allegations of environmental quasi-crimes. A successful due diligence defence is key to defending environmental prosecutions and seeking an acquittal.

In this full-day workshop, we will review key tips and traps for defending environmental prosecutions including defences to assert. We will discuss recent trends and hot topics in environmental prosecutions. Finally, we will conduct a mock environmental prosecution trial premised on a case in which the defendant won the day.

Course Chairs

Marc McAree, Partner, Certified Environmental Law Specialist, Willms & Shier Environmental Lawyers LLP | Matthew Gardner, Partner, Willms & Shier Environmental Lawyers LLP

Speakers
  • Gerry Parrott, Founder and President BlueFrog Environmental Consulting

Course begins 9 AM

Morning introduction and outline

Our morning will entail an engaging walk though when and how environmental liability arises in the context of the Crown’s exercise of extensive statutory powers to investigate alleged violations of environmental laws and then to prosecute.

Our speakers will explain at a high-level the meaning of environmental regulatory liability before exploring key differences between inspections and investigations. Then, our speakers will turn to the laying of charges by the Crown, pre-trial procedures and what all is involved in going to trial when resolution between the Crown and the alleged offender is not possible.

Speakers will focus on the shifting burden of proof on the Crown and then on defendants including key defences that may be available to companies and individuals charged with environmental offences. In our review of available defences, our speakers will focus on the legal meaning of “due diligence” and guidance from Courts across Canada about what it takes for a defendant to make out a successful environmental “due diligence” defence at trial.

The morning discussion will lay the groundwork for the afternoon “fire-side chat” and mock trial.


Environmental liability

Inspections / investigations
  • R v Jarvis; R v Ling; R v Nolet; R v Marathassa

Laying charges

Trial process overview

Judicial pre-trial

Settlement process

Trial
  • Crown’s burden of proof
  • Acquittal or conviction
  • Legal defences including the defence of due diligence

 Sentencing upon conviction

Case law updates: Increasing fines and jail terms

Afternoon outline

During the afternoon, our speakers kick into high, interactive gear with several Willms & Shier Environmental lawyers engaging in a “fireside chat”. Our lawyers will explore questions of strategy that can and do arise during the defence of environmental charges.

Topics for discussion will include:

  • How recent case law including from the Supreme Court of Canada has dramatically impacted prosecution proceedings across Canada;
  • The exercise of search warrants and when it is imperative for the Crown to seal documents and what happens next;
  • Often encountered tactical moves at trial that defendants and their counsel must carefully watch for;
  • What conviction of an environmental offence actually means including for individuals who are found guilty of an environmental offence

Fireside chat
  • R v Jordan: Time limit to get to and through trial
  • R v Husky: Internal investigation; Privilege
  • Search warrants and sealing
  • Directed verdict
  • Case splitting
  • Federal vs provincial implications of conviction

Mock trial

In the mock trial counsel and witnesses will present opening statements, viva voce evidence and closing submissions. Our mock trial is modelled on a real discharge of chemical water from a chemical water processing company via a catch basin and sewer that flowed to an outfall and into a nearby creek. Personal charges were laid by the Ministry of the Environment against the company’s production manager and also against the company under the Ontario Water Resources Act and Ontario’s Environmental Protection Act.

At the end of our mock trial, we will ask the audience if they would convict or acquit the company manager and the company, and why. Then, we will unveil what actually happened to both the production manager and the company after a lengthy trial in Ontario Provincial Offence Court.

  • Opening (Crown)
  • Prosecution case
    • Provincial officer/investigator
    • Company employee
  • Defence case
    • Company owner
  • Closing (Defence)

Question & answer period

Course ends 5 PM

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