After joining the Ontario Water Resources Commission (which later became part of the Ministry of Environment) as an engineer in 1970, John Martin went back to law school and in 1978 became the first full-time articling student in the Ministry of Environment’s Legal Services Branch.  That year, a landmark decision was made by the Supreme Court of Canada with far-reaching consequences for the way in which the Ministry of Environment dealt with polluters. This was the case of R. v. Sault Ste. Marie (City).  It began when the City of Sault Ste. Marie hired Cherokee Disposal Limited to manage the City’s landfill site.  As a result of Cherokee’s poor operation of the site, leachate from the landfill entered the St. Mary’s River and polluted it.  The Ministry of Environment charged both the City of Sault Ste. Marie and Cherokee Disposal under the Ontario Water Resources Act.  The judge found that the City was not responsible for the contractor’s polluting activities.  An appeal of this decision went all the way to the Supreme Court of Canada where the Supreme Court introduced for the first time the concept of strict liability, a new category of offence. Strict liability made it possible for someone charged with violating environmental laws to argue that they had taken all reasonable care to prevent the violation, thereby practicing “due diligence.”  The Sault Ste. Marie decision meant companies could now argue that they had taken reasonable precautions to avoid polluting.  These precautions included putting an environmental management system in place, training employees to use the system and supervising employees to ensure the system was being followed.  These were actions that could show that a company had taken all reasonable care, in effect exercised due diligence, and was, therefore, not guilty in law.  Since Ministry of Environment staff had not received training in the legal issues surrounding evidence collection that could counter this argument, the Ministry of Environment began to lose cases to companies using this defence.

Strengthening the Ministry’s Training and Investigative Capacity

To address this problem, Harry Parrott, the Conservative Environment Minister from 1978 to 1981, in consultation with the long-time director of the Ministry’s Legal Services Branch, Neil Mulvaney, decided that the Ministry had to train its people in these legal issues.  They initiated a two week course at the Ministry of the Solicitor General’s Police College in Aylmer, Ontario.  At Aylmer, all Ministry abatement staff were trained to understand not only their legal powers but how to collect evidence and how to build a case against polluters by including evidence that would counter possible defences. This decision marked the beginning of the Ministry’s commitment to making its staff more effective in the enforcement of Ontario’s environmental laws.  As part of the Ministry’s commitment, in 1979 a Special Investigations Unit (SIU) was set up, and Mark McKenney was hired as one of the unit’s original 13 officers.  The SIU’s job was to investigate serious offences, and, when they were convinced that environmental laws had been broken, they wrote a Crown Brief to support laying charges and sent it to the Legal Services Branch.  Then, if the Legal Services Branch decided that there was sufficient evidence to support charges, a prosecution would be launched. The SIU demonstrated its effectiveness in 1983 when E. B. Eddy Forest Products spilled thousands of gallons of toxic waste into the Spanish River polluting the river for miles downstream.  Ministry of Environment investigators laid six charges, including charges not only against the company itself but also against two of its officials.  As a result of the national publicity surrounding this case and the growing need for more Ministry staff to properly conduct investigations, Andy Brandt, a Conservative MPP from Sarnia who was Environment Minister from 1983 until 1985, became interested in enhancing environmental enforcement.  Brandt decided to ask the government for funding to create a special enforcement branch that would strengthen the Ministry’s investigative capabilities.  A provincial election and a change of government interrupted this plan, but in 1985 the newly-elected Liberal Environment Minister, James Bradley, convinced his Cabinet colleagues to approve a new Investigations and Enforcement Branch (IEB) of 120 people, about double the size being considered by the outgoing government.

The Successful Establishment of the Investigations and Enforcement Branch

In 1985,the Ministry of Environment put in place the legendary IEB under the supervision of a former Metro police officer, Alex Douglas.  A new era of aggressive enforcement was set in motion as Ministry of Environment investigators teamed up with environmental staff scientists to crack down on pollution offences. The IEB’s work was grounded in the intensive training that staff received at the Police College in Aylmer. Their primary job was to investigate violations of the Ministry’s major Acts in place at that time – the Environmental Protection Act, the Ontario Water Resources Act, and the Pesticides Act – and the numerous regulations established under those Acts. In this heyday of environmental enforcement, the IEB conducted approximately 1200 investigations each year and laid charges in 500 or 600 cases.  The officers were so well-trained and their investigations so thorough that in those first years, Ministry lawyers were winning approximately 95 per cent of their cases.  Plea settlements became common as lawyers for companies who had been investigated by the IEB and charged by the Ministry advised their clients that a trial would be a costly proposition with a significant probability of being convicted. An example of one of the IEB’s most significant cases was Bata Industries in 1992.  In this case, company officers, for the first time in Canada, were charged, convicted and fined for their responsibility, as officers, in not ensuring that leaking barrels of chemical waste on company property were cleaned up.  This case was instrumental in showing the personal liability of members of company boards of directors and their duty of care in dealing with their environmental responsibilities on behalf of the company. Another example was the case of Bakelite Thermosets, a Belleville plant that manufactured plastic resins.  Bakelite had been polluting the air and water with phenols for many years and sending falsified reports to the Ministry of Environment.   Investigators from the IEB found that the Ministry was also notifying the company when they were coming to inspect the plant so that operations could be brought up to acceptable standards before they arrived.  A technician from the plant co-operated with the Ministry in its investigation and became the first person to successfully obtain remedy under the whistle blower provisions of the Environmental Protection Act.  The company eventually pleaded guilty and was fined $100,000.