Provincial Offences Act (POA) Charges. Lands & Waters Aggregate & Petroleum Resources March 15, 2006

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1 Subject: Policy No.: New: Ministry of Natural Resources Ministère des Richesses naturelles Provincial Offences Act (POA) Charges A.R Yes Compiled by Branch: Section: Date Issued: Lands & Waters Aggregate & Petroleum Resources March 15, 2006 Guiding Principle Where other enforcement actions have not achieved the desired results, charges should be considered and discussed with the Enforcement Supervisor. Policy Act. 57 Offences under the Aggregate Resources Act (ARA) include: a) Operate a pit or quarry without the authority of a licence or permit; b) Contravene or permit the contravention of the site plan or a condition of a licence or permit; c) Contravene the Act, the regulations (including the Aggregate Resources of Ontario Provincial Standards); and d) Hinder or obstruct an inspector in the performance of their duties or to furnish an inspector with false information or refuse to furnish the inspector with information. Act Prosecutions should be initiated as soon as possible after the violation is detected. The limitation period for prosecutions under the Aggregate Resources Act is 5 years from the date the contravention occurred. Legal action (court charges) should be initiated on the following violations: Illegal operations Exceeding the tonnage condition (see A.R ) Hinders or obstructs an Aggregate Inspector Furnishes false information or refuse to furnish information. Act. 4(2) The Aggregate Inspector may enter, at any reasonable time, any land, vessel or business premises that appears to be used or appears to have been used in respect of a pit or quarry and to request and gather information. However, if an individual operates out of their house, access may only be gained through a search warrant. When Part I tickets under the Provincial Offences Act (POA) are issued, the Conservation Officer must work closely with the Aggregate Inspector regarding site specific terms and conditions that could affect their issuance on licenced/permitted sites. This could include site plan amendments, variations from the Operational Standards that have been approved, or work Policy A.R Page 1 of 5

2 indicated to be completed on a Compliance Assessment Report. A list of Part I POA charges is attached to this policy. When Part III charges are being considered, the Aggregate Inspector must discuss the matter with the Enforcement Supervisor to determine the best way to proceed. Where illegal operations are being investigated, these must be discussed with the Enforcement Supervisor regarding appropriate staff involvement and the best approach. In these situations, there is the potential for personal safety concerns and it may be beneficial to solicit the assistance of a Conservation Officer for these investigations. At the present time, there are no powers under the ARA to stop illegal operations or seize equipment, products, etc. Act 58 The legislation allows for a penalty of $500 to $30,000 for each day on which the offence occurs or continues. The maximum penalty may be increased if a monetary benefit was obtained. The Crown prosecutor, with assistance from the Aggregate Inspector or Conservation Officer, must be able to rationalize the amount of the fine being requested. Support for penalty may include evidence of similar convictions, willful blindness, obvious intent and receipts showing profit gained. For example: the number of days an illegal operation occurred and the volume of aggregate removed multiplied by the verifiable market value of the material, could support a request for monetary penalty; or an operator who removes a setback illegally gains a monetary benefit from removing aggregate they were not legally entitled to extract. However, the judge or justice of the peace alone determines the penalty where the defendant(s) is found guilty. This can include a suspended sentence, no fine, or compliance with remedial work within a specified period. Act 59 In any prosecution under the ARA, the court may, in addition to imposing a fine, make such order as the court considers proper to obtain compliance with the Act, the regulations, the site plan or any condition of a licence or permit. For example, in the case of an illegal operation, it might be appropriate to request that the Court order the person to rehabilitate an illegally excavated site. While the court order will stipulate that the site is to be rehabilitated and direct how rehabilitation is to be undertaken, the Aggregate Inspector or Conservation Officer should be prepared to assist the Court with specific rehabilitation options. Failure to adhere to a court order under section 59 of the ARA can lead to a criminal offence under subsection 127(1) of the Criminal Code that may result in a jail term of not more than 2 years. If there is to be a plea bargain to avoid a trial or to agree on the fine between the defendant and the Crown prosecutor, the Crown prosecutor will usually discuss this with the investigative team (e.g. Aggregate Inspector, Conservation Officer and Enforcement Supervisor). Policy A.R Page 2 of 5

3 Aggregate Inspectors and Conservation Officers must be prepared to assist the Crown by providing sufficient information to allow them to make informed decisions. Aggregate Inspectors and Conservation Officers shall not negotiate plea bargains without the knowledge and consent of the Crown prosecutor. The MNR Enforcement Training Manual provides a detailed discussion of evidence, court procedures, POA, etc. Reference should also be made to Part I and III of the POA. Investigations vs. Inspections An inspection is characterized by a visit to determine whether there is compliance with a given statute. The basic intent is not to uncover a breach of the act: the purpose is rather to protect the public. On the other hand, if the inspector enters the establishment because he has reasonable grounds to believe that there has been a breach of the Act, this is no longer an inspection but a search, as the intent is then essentially to see if those reasonable grounds are justified and to seize anything which may serve as proof of the offence. Comité paritaire de l industrie de la chemise v. Potach. [1994] 2 S.C.R. Throughout investigative or inspection activities, Aggregate Inspectors must: Know and fully understand their powers: You only have authority if it is written in the statute that you are enforcing. You cannot extend the powers from one Act into another You cannot expand powers beyond the Act s definition. Know and fully understand the purpose of their inspection powers: Your inspection powers are set out by the Act and will be very specific on the purpose and limits. Do not confuse inspection with search. Don t cross boundaries: If you have reasonable grounds to believe an offence has occurred you are into the investigation stage. Don t use your inspection powers to conduct an investigation. Inspection Inspection: To look at something critically to examine something carefully in order to judge its quality or correctness. Policy A.R Page 3 of 5

4 Inspection is general monitoring conducted on a routine basis typically following a checklist approach. They include monitoring activities undertaken when non-compliance may or may not be suspected. The purpose of an inspection is: To avoid or remedy risks to the public welfare generally caused by non-compliance. To ensure compliance with a specific Act or regulation. Primarily protective and preventative, not punitive. Inspections may include: Conducting an audit Conducting an examination Completing a survey Conducting a test Making enquiries Investigation Investigation: To carry out a detailed examination or enquiry, especially officially, in order to find out about something or somebody. Investigations involve the collection of evidence and the evaluation of non-compliance with a view to prosecution. Investigations are typically undertaken when there are reasonable grounds to believe non-compliance has occurred. Reasonable Grounds: a set of facts or circumstances that would satisfy an ordinary cautious and prudent person that there is a reason to believe which goes beyond mere suspicion. The purpose of an investigation is: To seek evidence to support and offence that the Aggregate Inspector has reasonable grounds to believe was committed. Gathering evidence in various forms including: Taking statements (cautioned and voluntary) Recording observations, conducting searches Making seizures Policy A.R Page 4 of 5

5 SCHEDULE OF PART I TICKETS SCHEDULE 0.1 Aggregate Resources Act 1. Fail to pay aggregate royalty subsection 46 (2) SCHEDULE 0.2 Ontario Regulation 244/97 made under the Aggregate Resources Act 1. Fail to file annual production report by January 31 st section 1 2. Fail to pay annual licence fee by March 15 th subsection 2 (1) 3. Fail to pay annual aggregate permit fee by March 15 th subsection 2 (3) SCHEDULE 0.3 Aggregate Resources of Ontario: Provincial Standards incorporated by reference into Ontario Regulation 244/97 under the Aggregate Resources Act 1. Fail to erect and maintain fence along licenced boundary section Fail to erect and maintain a gate at each entrance and exit section Fail to erect and maintain sign identifying licensee section Fail to submit annual Compliance Assessment Report section 6.1 Policy A.R Attachment List of Part I Tickets Page 5 of 5