Self-incrimination when they make you talk

by Dianne Saxe on September 29, 2011

The police cannot force someone to talk and then use the answers against them; can environmental regulators do so?

The courts have always allowed them to, but now the rules are changing.In 1969, R. v. Strand Electric, the Ontario Court of Appeal convicted Strand Electric of failing to maintain a scaffold in good condition contrary to the Construction Safety Act. The only evidence against the company was an oral statement made by its supervisor to a government inspector, a statement that he was required to make under the Act. The Court ruled that since the Company had a legal duty to answer the inspector’s questions, its staff were obviously authorized to make the statement in question, and it was admissible against them.

Since that time, many companies and individuals have been prosecuted and convicted of environmental offences, based on oral and written statements that they were compelled by statute to make. Recent amendments to the Environmental Protection Act and the Ontario Water Resources Act have broadened, even further, the powers of environmental officers to require individuals and companies to answer their questions (see section 157.0.1). But the admissibility of these answers in prosecutions should now be reconsidered.

This summer, in R. v. Soules the Ontario Court of Appeal ruled that statements compelled by the Highway Traffic Act can no longer be used as grounds for a police officer to demand that a suspected drunk driver blow into a screening device, under the Criminal Code. According to the Court, section 7 of the Canadian Charter of Rights and Freedoms guarantees all citizens the right to choose whether or not to speak with police. If they are stripped of their right to silence by statutory compulsion, their answers cannot be used against them in subsequent criminal proceedings and “exclusion of the evidence is compulsory”. If police wish to use information acquired from a motorist for criminal proceedings, “the information cannot derive from the duty of the motorist mandated by the statutory provisions”.

If statements made by statutory compulsion under the Highway Traffic Act cannot be used against the author, directly or indirectly, in a subsequent criminal prosecution, why should statements made by statutory compulsion under the Environmental Protection Act be admissible in a subsequent environmental prosecution?

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