Environmental Impacts of Major Construction Projects: 5 Takeaways to Conduct Your Major Projects with Due Diligence

Due diligence is one of the most frequent defences used to contest an environmental criminal infraction[1]. We provide concrete recommendations to help companies in the field of major works act with due diligence when conducting their business.

More than 150 years ago, the federal government started establishing a regulatory framework for environmental activities of persons subject to legislation[2]. Subsequently, the undeniable importance that the population attaches to environmental protection justified the increase in laws[3], which included a penal regime aimed not only at punishing offenders, but especially at preventing acts of pollution.

The Defence of Environmental Due Diligence

The issue of due diligence in the context of a criminal offence cannot be addressed without discussing the Sault Ste-Marie decision[4]. In fact, in this decision, the Supreme Court of Canada confirmed the existence of three categories of criminal offences to which different standards of evidence apply: offences in which mens rea must be established, offences of strict liability and offences of absolute liability.

According to the highest court in the country, the standard that must be applied to public welfare offences is strict liability, wherein evidence of guilty intent does not have to be proven, but for which the due diligence defence is valid in law. Thus, while the prosecutor is required to demonstrate the material elements of the alleged offence beyond a reasonable doubt, the accused is able to exonerate himself by proving on a balance of probabilities that he has demonstrated due diligence[5].

As the quality of the environment is a matter of public interest, it is now widely recognised that violations of environmental laws are generally pubic welfare offences and therefore that the due diligence defence in the strict liability standard is[6] accepted.

The criteria for the due diligence defence

The due diligence defence implies that "the accused took all reasonable precautions to avoid the event in question"[7]. The notion of "all reasonable precautions" has been widely discussed and the case law of recent years shows that this standard has proven very difficult for polluters[8]. Due diligence is assessed according to an objective standard by assessing the defendant's conduct in relation to that of a reasonable person in a similar context[9]. It is therefore a flexible standard that can be adapted according to the field of activity, the defendant's expertise and the risk potential of the activity being carried out[10].

To this end, the Supreme Court in Wholesale Travel Group pointed out that the burden of due diligence is heavier for a defendant who operates in a regulated field of activity where a licence is required, because by doing so, he accepts his public responsibilities to act with caution[11]. Although due diligence does not require perfection from the defendant[12], the burden is great enough that case law has in most cases not been established in his favour in recent years, particularly when it comes to a company specialised in its field. Nevertheless, a recent judgment draws our attention to the demonstration of due diligence by companies involved in major works.

The decision Frontenac Drilling (1995) Inc.

In the decision Director of Criminal and Penal Prosecutions v. Forage Frontenac (1995) Inc.[13], the defendant, a business specialised in drilling and blasting, is charged with violating section 20 of the Environment Quality Act[14] after a blasting operation sent rock fragments onto the properties of the residents of St-Joseph-de-Corelaine, located approximately 1 km from the quarry where works were being carried out.

Upon initiating its analysis of due diligence, the Court points out that even if perfection is not required of the accused, the high level of complexity and danger of a blasting operation justifies the use of strict precautions[15]. The judge recalled that in a pollution accident case, the accused's due diligence is assessed by evaluating the precautions put in place to avoid the accident according to the degree of predictability of the accident[16]. Since the evidence shows that the Director of Operations of Forage Frontenac was vested with the company's decision-making power[17], his personal actions are those which must analysed by the court[18]. The judge, faced with the contradictory expert opinions of the parties, analysed the evidence as a whole and ruled in favour of the defendant, chiefly on the grounds that with the information that she had at her disposal, she had done everything possible to reasonably predict the risk of an accident while acting in accordance with the accepted practices and in compliance with the regulations.

This judgment clearly bears witness to the fact that the accused, in order to prove its diligence, must demonstrate that it has been extremely meticulous in conducting its activities by presenting solid evidence to the effect that all reasonable precautions have been put in place to avoid committing the offence.

5 Takeaways for Major Works Undertaken

In light of our analysis of the case law on the subject of due diligence defence in environmental law, as well as the various aspects considered by the Court in Forage Frontenac[19], the following observations can guide companies working in the field of major works in order to ensure that they present evidence of due diligence that satisfies their burden. Thus, a diligent company must:

• 1. Ensure its activities are in regulatory compliance by establishing mechanisms and monitoring methods for the internal regulatory framework to which all employees are subject in environmental matters. Ensure regular updates to this regulatory framework, which is also of primary importance.
• 2. Identify all activities that pose a risk to the environment and then institute mandatory procedures for employees, as well as a procedure for confirming steps through written reports or third-party validation. The company will also have to ensure that this information is always sent to its managers.
• 3. Implement a continuous training system for its employees to ensure that they are aware of and comply with the laws, the company's mandatory internal procedural instructions and the best practices in their field of activity.
• 4. Establish a regular review (audit) process to ensure that the company's activities are in compliance and that employees are following orders. An internal sanctions regime could also be put in place to encourage employees to comply with the guidelines.
• 5. Finally, in the event that the risk materialises despite the precautions taken, the company must establish an emergency programme to minimise the impact on the environment and document the situation in the best way possible and in a manner consistent with the accident.

Case law also teaches us that evidence of due diligence usually involves demonstrating the many preventive actions taken by the accused, and that this evidence is unlikely to be sufficiently convincing if it is supported only by unsubstantiated testimony or writing. Thus, it is in the company's interest to document its operations to ensure that compliance with procedures is confirmed or, at a minimum, to ensure that several people are involved in validating the steps to be taken.

  

[1]Paule Halley, Le droit pénal de l’environnement: l’interdiction de polluer (Montreal: Éditions Yvon Blais, 2001), 160.  [2]The Fisheries Act, S.C. 1868, approved by the Parliament of Canada in 1868.  [3]For example, the Environment Quality Act, C.Q.L.R. c. Q-2 or the Canadian Environmental Protection Act, 1999 (S.C., c. 33), to name a few.  [4]R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, 1978 CanLII 11 (SCC).  [5]P. Halley, supra note 3 at 163-164.  [6]R. v. Sault Ste. Marie, supra note 4; Quebec (Attorney General)v. Gazon Savard Saguenay Inc., 2009 QCCQ 534, para. 263-264; Municipalité régionale de comté de Bellechasse v. Director of Criminal and Penal Prosecutions, 2017 QCCS 5239 (CanLII), para. 30.  [7]R. v. Sault Ste. Marie, supra note 4; R. v. Wholesale Travel Group Inc. 1991 CanLII 39 (SCC), [1991] 3 S.C.R. 154, para. 213.  [8]P. Halley, supra at 171.  [9]R. v. Wholesale Travel Group Inc., supra note 7; Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec Inc., [2006] 1 SCR 420, 2006 SCC 12 (CanLII), para. 15;  La Souveraine, Compagnie d'assurance générale v. Autorité des marchés financiers, [2013] 3 S.C.R. 756, para. 56.  [10]R. v. Wholesale Travel Group Inc: "[the] question is not whether the accused has exercised some care, but whether the degree of care exercised was sufficient to meet the standard imposed"; Quebec (Attorney General) v. 3766063 Canada Inc. (Multitech), 2007 QCCQ 8661, para. 51 to 53; P.G.Q. v. Jobert Inc., 705-36-000031-953, Joliette District, 19 January 1996, Hon. Lise Côté, J.C.S. (S.C. on appeal); Director of Criminal and Penal Prosecutions v. Centre de traitement BSL Inc. 2009 QCCQ 4872, para. 40-43; Director of Criminal and Penal Prosecutions v. City of Louiseville, 2013 QCCQ 675, para. 319-324; Regional County Municipality of Bellechasse v. Director of Criminal and Penal Prosecutions, para. 41 51; Director of Criminal and Penal Prosecutions v. Forage Frontenac (1995) Inc. 2019 QCCQ 11, para. 84-86.  [11]R. v. Wholesale Travel Group Inc., supra note 7; see also Communauté métropolitaine de Montréal v. Sanimax Lom Inc. 2018 QCCM 204 (CanLII), para. 159 to 162; Québec (Attorney General) v. 3766063 Canada Inc. (Multitech), supra note 10 at para. 124. Moreover, case law recognises that the burden of due diligence is particularly strong in the environmental field. See for example: SM Construction Inc. v. Director of Criminal and Penal Prosecutions, 2016 QCCS 4350 (CanLII), para. 101-102; see also R. v. Légaré auto ltée, [1982] AZ 82011036 (C.A.), p. 1 and 7; Québec (Attorney General) v. 3766063 Canada Inc. (Multitech), supra 10, para. 53.  [12]R. v. Sintra Inc., [1986] Q.J. no. 1083 (S.C.); CSST v. Imprimerie Ste-Julie Inc., 2008 QCCQ 8606 (CanLII).  [13]Director of Criminal and Penal Prosecutions v. Forage Frontenac (1995) Inc. 2019 QCCQ 11.  [14]Environment Quality Act, supra note 2. [15]Id. note 13, para. 79.  [16]Id. note 13, para. 81-83; P. Halley, 158.  [17]Id. note 13, para. 82.  [18]When the alleged error is committed by a simple employee, the judges instead analyse the procedures put in place by the company to prevent its employees from committing offence.  [19]Environment Quality Act, supra note 15.