When Is a Deliberate Violation of an Environmental Law Justifiable?

Respect for the law is a fundamental value in our society. But it’s not an absolute value. In some situations, breaking a law can serve a higher purpose. For example, it may be necessary to drive through a red light to get a dying person to the hospital. These principles may also apply to environmental laws. Defendants can use what’s called the “defence of necessity” to avoid liability for a deliberate violation of environmental law. But this defence is a tough sell. To use it, a company must prove three things: 1) The conduct was necessary to avoid imminent danger; 2) there was no alternative to breaking the law; and 3) the violation was no greater than necessary. Here are two cases illustrating how these factors play out. VIOLATION WAS NECESSARY FACTS: Normally, a fi shing boat reeled in its fi shing net and placed its catch on ice before proceeding to shore. But one day, the haul was so big that the boat couldn’t reel in the net. So the captain decided to leave the fi sh in the net and trail it back. Fisheries offi cers spotted the boat as it neared the shore. They saw the trailing net and thought that the boat was using it to catch fi sh in violation of the Fisheries Act. They signalled the captain to stop. But the captain refused, fearing that the net would get caught in the propeller if the boat stopped. He did slow the boat down and let the officers board by a ladder. However, he was still charged with refusing to stop the boat and permit safe boarding. The captain raised the necessity defence. DECISION: The Newfoundland Supreme Court dismissed the charges. EXPLANATION: The court said that even though the captain technically broke the law by refusing to stop, his violation was necessary and excusable based on the following factors:

• Imminent danger. If the captain had stopped, the fishing net could have become caught in the propeller, placing the boat and its crew in danger.
• No alternatives. Based on this danger, the court concluded that the captain had no reasonable alternative but to refuse to stop the boat.
• Violation no greater than necessary. The captain didn’t refuse the offi cers permission to board the boat. He simply refused to come to a complete stop and instead slowed down so the offi cers could board using a ladder.

R. v. Skinner, [1997] N.J. No. 20, Feb. 6, 1997 VIOLATION WASN’T NECESSARY FACTS: A BC property owner cleared a portion of his property where bears were known to hide. In addition to protecting his family, the property owner wanted the land cleared because the vegetation dried up during the summer, increasing the risk of fi res. The problem was that the property neighboured a creek that was a known fi sh habitat. A fisheries officer and biologist saw the heavy clearing equipment and discovered that the property had been stripped near the creek bed. They charged the owner with altering or destroying a fi sh habitat in violation of the Fisheries Act. The property owner argued that he wasn’t liable because he acted out of necessity. DECISION: The BC provincial court convicted the property owner, rejecting his necessity defence. EXPLANATION: The court convicted the property owner based on three factors:

• Danger wasn’t imminent. Even though bears frequented the area, there hadn’t been an actual bear sighting for at least two years. As for the risk of fi re, there were other precautions for protecting property from wildfires, of which everyone in the area was aware. At most, the court said there was a potential future problem with fi res and bears—not an immediate one.
• Owner had alternatives. The Fisheries Act allows property owners to get permission to alter a fi sh habitat if the alteration is genuinely required or justifi ed. But the property owner didn’t seek such permission. He just took matters into his own hands and decided for himself that the property needed to be cleared.
• Violation was greater than necessary. Even if it had been necessary to remove some of the vegetation, the property owner practically scalped the property—removing a “considerable amount of vegetation” and causing a “significant alteration,” the court said.

R. v. Rhodes, [2007] B.C.J. No. 35, Jan. 3, 2007