Part 5: Enforcement, Inspection and Investigations
The federal and provincial governments share responsibility for protection of the environment and the regulation of activities that may impact the environment.
The area where it most often appears that the federal and provincial inspectors are doing the same job is with regard to water.
The Nova Scotia Environment Act vests all ‘watercourses’ in the crown (government). This provides the provincial government with significant authority to regulate the quality and quantity of water throughout the province.
The federal government does not have the power to regulate water, unless it crosses provincial borders. However, the federal government does have the power, through the Fisheries Act, to protect fish and fish habitat.
For example, if after spreading manure there is a heavy rainfall and the manure runs off the field into a watercourse, both federal and provincial enforcement officers may attend the site. The federal officer is there under the power of the Fisheries Act to determine whether or not a “deleterious substance” (the manure) has entered water frequented by fish. The provincial enforcement officer is there under the power of the Environment Act to determine whether or not there has been an adverse affect to the watercourse.
For more information:
Environment Act, sections 67(2) page 8
Fisheries Act, section 36(3) page 4
The purpose of an inspection is to confirm that the company, organization or individual is obeying the law. Inspections take place on premises where there are activities, materials or substances that are subject to a particular law, such as the Nova Scotia Environment Act. Under the Act any person who holds an approval, certificate of qualification or certificate of variance must allow an inspection to take place.[block_indent](117) It is a condition of every approval, certificate of qualification or certificate of variance that the holder must forthwith on request permit inspectors to carry out inspections authorized pursuant to this Part of any place, other than a dwelling place, to which the approval, certificate of qualification or certificate of variance relates[/block_indent]
An inspector under the Environment Act can also enter and inspect any place in or from which the inspector has reasonable grounds to believe a substance is being, has been or may be released into the environment. The enforcement officer or inspector is there to ensure that the company or individual is complying with the requirements of the Act. The enforcement officer does not believe that there has been a violation of the law.
When a legal inspection is underway, the owner or occupier of the premises must give the inspector all reasonable assistance and furnish all relevant information that the inspector may reasonably require. A failure to provide reasonable assistance may be an offence under the Act. For more information, see Question 29.
The purpose of an investigation is to gather information and evidence to support the prosecution of a suspected violation. If the enforcement officer reasonably believes that there has been a violation of the law, then they have the authority to conduct an investigation. The Canadian Charter of Rights and Freedoms applies to individuals and in some instances corporations who are under investigation. In most circumstances (though not all), a search warrant is required before an investigation is commenced.
If an enforcement officer discovers reasonable grounds to suspect a violation during an inspection and chooses to move from the inspection to an investigation immediately, the officer must declare that they believe an offence has been committed and they are conducting and investigation of the alleged offence. For more information, see Question 30.
For more information:
Environment Act, sections 118,119 page 8
Fisheries Act, section 49 page 4
Also refer to Question 29.
Enforcement officers (also referred to as inspectors) have broad powers under the law to enter and inspect certain properties. Generally speaking, this means any property where there are activities, materials, substances, records, books, electronic data or other documents subject to the law. For example, the federal Fisheries Act provides an enforcement officer with the power to enter and inspect any place, other than a private dwelling place, where there is work underway that may result in the deposit of a deleterious (i.e. harmful) substance in to water frequented by fish.
If an enforcement officer arrives on your property to carry out an inspection or an investigation you should ask the officer for (1) identification; (2) the nature of the visit (i.e. inspection or investigation); (3) the authority under which the inspection or investigation is being carried out (i.e. Environment Act, Fisheries Act, etc.).
During an inspection, the enforcement officer can examine substance or products, open and examine receptacles, containers or packages and take samples, examine books, records or electronic data and make copies of them.
Given the broad powers of enforcement officers, there is little choice but to fully cooperate with an officer during an inspection. It is generally an offence to obstruct an enforcement officer when they are carrying out their duties. In fact some statutes, including the Environment Act, require the owner or occupier of the property to give the inspector all reasonable assistance.
An enforcement officer may carry out an investigation where they have a reasonable belief that a law has been violated. While carrying out an investigation, the enforcement officer may search the property and seize anything that could provide evidence of the offence. In most cases, an enforcement officer will not conduct a search unless they first obtain a search warrant.
If an enforcement officer indicates that he or she is carrying out an investigation, you should ask the enforcement officer to produce the search warrant. The search warrant will provide you with information on the alleged offence and the search. You should also contact your lawyer immediately. You may ask the enforcement officer to hold the investigation until after you have contacted your lawyer. If the enforcement officer refuses to wait, do not attempt to stop the investigation. It is important to cooperate with the enforcement officer during the investigation; however, it is also important to protect yourself. You should accompany the enforcement officer as he or she examines the property. If the officer takes a sample or a photograph, then you should take a sample or photograph of the same thing. If the officer takes a copy of a document, make a note of the document title and the time it was taken.
The enforcement officer may choose to interview you or one of your employees. Some guidelines to consider during an interview are as follows:
• Cooperate with the officer, do not hinder or obstruct the process.
• Make sure you understand the question before answering. Ask for clarification if necessary.
• Take time in answering the question, think about the question and the answer.
• Do not attempt to answer questions when you do not know the answer.
• Do not guess at the answer or offer opinions, stick to the facts
• Stick to the question asked. Do not wander on to other topics or offer speculation.
• Do not sign anything prepared by the officer, unless instructed by your lawyer.
• If you are under investigation, you are entitled to have a lawyer present during the interview.
• If you believe that you are being detained or coerced into answering question, you may refuse to answer the questions until your lawyer is present.
These are just some of the items that should be considered when an investigation takes place. If you have been informed that you are under investigation it is advisable to contact your lawyer for further advice.
For more information:
Environment Act, sections 118, 119 page 8
Fisheries Act, section 49 page 4