Please read the disclaimer before perusing the following article.
(written 1992, published Beef in B.C. Oct 92)
Two previous articles talked about the Fisheries Act (Canada), the Waste Management Act (B.C.), and the Water Act (B.C.). We looked at what actions create an offence and what are the possible penalties.
If a fisheries officer or a pollution control officer is standing on your doorstep and talking about a problem, what should you do to protect yourself rather than getting deeper in trouble?
Some suggestions follow. However, generalities are not always much use in a specific situation. Temper these ideas with your own judgment. If you think a problem may be starting, see your lawyer earlier rather than later, and be guided by his or her counsel.
Learn the rules. Know what is expected, know how well your own activities meet environmental requirements. Plan to fix any shortcomings. Learn what steps to take in case of an environmental accident.
If an enforcement officer approaches you to discuss a problem situation, be curious – find out as much as you can about his or her view of the nature of the problem, specific concerns, and what action he or she wants you to undertake.
Stay cool, get lots of information, ask lots of questions, and remain polite at all times. Being rude or “standing on your rights” won’t do you any good at all. That does not mean that you have to be a marshmallow. If someone is asking for permission to do something – for example, enter your house or check records – you may wish to get legal advice before giving permission. Again, be polite.
If someone is doing something and you are not sure what authorizes them to take the action, ask, politely, what is their authorization for doing what they are doing.
These sorts of statements or questions can be seen as being uncooperative, and it is important to maintain a polite, helpful manner, and immediately to do any checking that you want to do. In other words, do not delay or obstruct an investigation.
Many of the judges’ decisions in environmental cases talk about the level of cooperation show by the accused. The more cooperation, the better. Once the problem and an appropriate solution are identified, it is crucial that you do ALL YOU CAN towards that solution, right away.
Keep track of who came to see you, when, what they talked about, and what were your responses. Keep all correspondence and paperwork, incoming and outgoing. Should things go wrong, those notes and papers may be useful to your lawyer in advising you or defending your case.
Time after time I have had clients come to see me over a problem with government. The client may have some of the letters received from the government, and some recollection of phone calls made in response. The government will have a file 4 inches thick, with extensive, dated notes and photographs of the problem, records of the phone calls they’ve made to contact the client, letters written and documents issued, and so on. Be aware that in 98% of the cases, he who has the best file (i.e. documented record), wins.
If at any time the person with whom you are dealing mentions the possibility of charges, or you sense that they are thinking of charging you, stop the conversation immediately. Say something like, “I want to continue our discussion and I think it appropriate that I get some legal advice before we do that. Can we stop this meeting now and reschedule it for later?” Then STOP TALKING and go see your lawyer right away. Many people convict themselves with their own statements.
If you are charged with an environmental offence, you are deemed to know you are committing an offence (ignorance is no excuse). You are also deemed to be guilty unless you can show an absence of negligence, called “due diligence”. You will not be convicted if you prove that you did everything reasonably possible to prevent the offence from happening. This is a high standard, and the onus of proof is on you.
Do your own investigation. Determine for yourself what, if anything, you or your employees did to cause, or prevent or remedy the problem. Do not rely on the enforcement officer’s investigation alone.
Both the Waste Management Act and the Fisheries Act have sections which require you to report yourself if you commit certain infractions.
In a situation where you are discussing a problem with an enforcement officer and were not previously aware that there was a problem or that you were involved in it, you do not have to admit to the enforcement officer that you are responsible. Don’t say things like “I’m sorry”. Focus your attention on finding out what is the problem and what needs to be done to fix it.
It is a tricky balancing act to be cooperative in resolving the problem while at the same time to avoid saying that you are responsible for it. Consider a strategy of first cooperating fully in getting the problem under control, and then, if necessary, dealing with the issue of blame, or who caused the problem.
It is important that you help the environmental authorities fix the problem. It is not necessary that you yourself, by the things you say, prove their case against you.
Being helpful and, at the same time, strategically silent, is real tightrope. Get your lawyer’s advice earlier rather than later, and try and get the environmental problem resolved as quickly and cleanly as possible.