Academic journal article Journal of Politics and Law

Green Crime in the Canadian Courts: Issues and Controversies

Academic journal article Journal of Politics and Law

Green Crime in the Canadian Courts: Issues and Controversies

Article excerpt

Abstract

This paper examines the challenges prosecutors face in successfully convicting individuals and corporations of environmental or "green crime" offences in Canada. The data used in this study consist of 29 legal case files of alleged green crimes in the province of Ontario in the last five years (2008-2012). Successfully prosecuting environmental offenders appears difficult due to several complex, inter-connecting challenges. The common difficulties that are examined in this paper include: challenges of legal definition, jurisdictional issues, liability questions, constitutional rights, burden of proof, admissibility of evidence, and due process considerations.

Keywords: Canadian environmental law, green crime, unobtrusive measures

1. Introduction

Internationally, it is estimated that over $22 billion is made annually from illegal dumping of hazardous waste, smuggling of hazardous materials, and the unlawful extraction of natural resources (International Crime Threat Assessment, 2000). Despite these alarming figures, few environmental or "green" crimes are reported, fewer still result in criminal trials, and rarely do convictions result (White, 2011). Through the unobtrusive examination of 29 legal case files in the province of Ontario over the last five years, this paper examines the challenges prosecutors face in successfully convicting individuals and corporations of green crime offences in Canada.

Green crime can be defined as crime or regulatory infractions against the environment (Lynch & Stretsky, 2003). Many criminologists have turned to using green crime over the term environmental crime to delineate the concept from the field of Environmental Criminology, which holds a broader definition of "environment" that can include social factors that lead an individual to commit crime. The term green crime refers specifically to offences against the natural environment, such as air pollution, water pollution, deforestation, wildlife poaching, and the unlawful dumping of hazardous waste. In Canada, many green crimes are considered "regulatory offences" or "quasi-crimes" as they violate municipal, provincial, national, and international policies but are not in direct violation of the Canadian Criminal Code.

The subject of green crime and environmental law in Canada has been studied extensively. Some of the topics of inquiry have included the history of environmental law (Emond, 2008; VanNijnatten, 1999; Delicaet, 1995; Hunt, 1994), racism and environmental waste disposal (Dhillon & Young, 2010), feminist perspectives on Canadian environmental law (McLeod-Kilmurray, 2009), government action regarding environmental law violations (Winfield, 2008), environmental crime as accident or crime (Snider 2004), economic aspects of Canadian environmental law (Richardson, 2004), critical perspectives on environmental law (Boyd, 2004; Hawke, 1997), overviews of environmental laws in Canada (Cotton & Zimmer, 1992), political aspects of environmental law (Hawke, 2002; Howlett, 2000), and globalization and environmental law (Paehlke, 2000; Harrison, 1995; Jeffrey, 1994; Hoberg, 1991). This study contributes to this growing body of literature by examining the legal difficulties of successfully prosecuting green crimes.

2. Method

The methodological approach of this paper is informed by unobtrusive or what is sometimes termed non-reactive measures (Webb et al., 1981). This process entails the use of data that a) involve no human contact, and b) were not created for the direct purpose of academic study. The data used in this study consist of 29 legal case files of alleged green crimes in the province of Ontario in the last five years (2008-2012). The 29 legal cases represent a purposive sample of all cases that the researchers were able to locate through the legal database canlii.org. The search was limited to Ontario as Environmental Law changes across the provinces in Canada, allowing for a more straightforward analysis. …

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