1、PLUS 1162 IS0 14001 and CompZiance in Canada CSA Special Publication PLUS 1162 IS0 14001 and Compliance in Canada CANADIAN STANDARDS AS SOC I AT I ON Registered trade-mark of Canadian Standards Association Published in july 200 1 by Canadian Standards Association A not-for-profit private sector orga
2、nization 178 Rexdaie Boulevard, Toronto, Ontario, Canada M9W 7 R3 7-800-463-6727 4 76-747-4044 Visit our Online Store at www.csa.co Acknowledgements CSA would like to thank the author, Dianne Saxe, D. Jur., Specialist in Environmental Law, for preparing this guide. The author and CSA would also like
3、 to acknowledge Linda Klaamas, BA, LLB, MPA, LLM, for her contributions to the development of this Special Publication. Disclaimer The information contained in this Special Publication is intended to provide a commentary on the relationship between IS0 14001 and regulatory compliance in Canada. It i
4、s not intended to alter the requirements of IS0 14001, to provide legal advice, or to make recommendations on the use of IS0 14001 as a due diligence defence or by regulators or the courts. The views and opinions expressed in this publication are those of the author and do not necessarily reflect th
5、e views of the Canadian Standards Association (CSA). CSA and the author assume no responsibility for the use of this publication or any information contained herein. Users of information in this publication should seek expert advice to determine what is appropriate and applicable to their respective
6、 operations. ISBN 7 -55324- 157-6 Technical Editor: Darryl Neate Managing Editor: Cary Burford Production Manager: Alison Maclntosh Administrative Assistant: Elizabeth Hope - Document Analyst: Indira Kumaralagan Editors: Maria Adrag n a/Saman tha Co yle/San dra Ha wryn/Ann M artin/Jo hn M cCon nell
7、Graphics Coordinator: Cindy Kerkmann Publishing System Coordinators: Ursula Das/Crace Da Silva/Hematie Hassan/ O Canadian Standards Association - 200 7 All rights reserved. No part of this publication may be reproduced in any form whatsoever without the prior permission of the publisher. Seetha Raja
8、gopalan O Canadian Standards Association /SO I400 1 and Compliance in Canada Contents Preface v 1. Due Diligence 7 1.1 General 7 1.2 R. v. Sault Ste. Marie 7 1.2.1 Kinds of Offence 7 1.2.2 The Facts 7 1.2.3 The Issue 2 1.2.4 The Decision 2 1.3 Due Diligence and Civil Negligence 2 1.3.1 General 2 1.3
9、.2 “Cause or Permit” 3 1.3.3 The Standard of Care 3 1.4 Due Diligence as a Management System 4 2. Benchmarks and How They Are Used 5 2.1 General 5 2.2 What Benchmarks? 5 2.2.1 Statutes and Regulations as Benchmarks 5 2.2.2 Custom 6 2.2.3 Government and Industry Reports 6 2.2.4 Voluntary Standards 7
10、3. The First EMS Benchmark: Bufu 7 3.1 General 7 3.2 The Facts 7 3.3 What Should Bata Have Done? 8 3.4 The Decision 8 3.5 Following Bata 9 3.6 The Significance of Bata 9 4. Improving the Benchmark: IS0 14001 4.1 General 70 4.2 IS0 14001/14004 Overview 70 4.3 IS0 14001 in Comparison to Bata 73 4.4 Ef
11、fectiveness 14 7 O 5. Judicial Reliance on IS0 14001 5.1 Conviction 75 5.2 Sentencing 75 5.2.1 General 75 5.2.2 R. v. Prospec Chemicals td. 5.2.3 R. v. Prototype Circuits inc. 7 6 5.2.4. R. v. Van Waters as in the case of IS0 14000, instruments developed for one purpose, such as trade or education,
12、frequently end up as legal benchmarks. New benchmarks follow a predictable path from “ideal“ to “norm“ as the standard of care rises. Both judges and regulators adopt benchmarks as guides for their discretion and as tools in evaluating the behaviour of others. Some successful benchmarks are incorpor
13、ated by reference into legislation (statutes or regulations). The requirements of IS0 14001 and the IS0 14000 series of standards are currently undergoing these processes of legal ratification, to the mutual benefit of government, business, and civil society. July 2007 Notes: (1) Use of the singular
14、 does not exclude the plural (and vice versa) when the sense allows. (2) All enquiries regarding this Special Publication should be addressed to Canadian Standards Association, 1 78 Rexdale Boulevard, Toronto, Ontario, Canada M9W 7 R3. July 200 7 Y , O Canadian Standards Association IS0 14001 and Co
15、mpliance in Canada PLUS 1162 IS0 14001, and CompZiance in Canada 1. Due Diligence 1.1 General The formal statute law of Canadian environmental protection is only a framework. The most important provisions, such as s. 14 of the Ontario Environmental Protection Act (EPA), are quite broad: 7 4 (7) Desp
16、ite any other provision of the Act or the regulations, no person shall discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment that causes or is likely to cause an adverse effect. This section, on its face, forbids an astonishing variety of acts and omi
17、ssions: spilling hot coffee outdoors,2 using a weed killer, putting black asphalt on a parking lot, perhaps smoking outdoors near omeone. Most of the actual guidance for behaviour, especially for the management of businesses, comes from the concept of due diligence, which has been defined by the cou
18、rts. 1.2 R. v. Sault Ste. Marie 1.2.1 Kinds of Offence The concept of due diligence was essentially invented by the Supreme Court of Canada in 1 978.4 Until the landmark case R. v. Sault Ste. Marie, there were only two kinds of offence: (a) True crimes, which require the Crown to prove both the actu
19、s reus (wrongful act) and mens rea (the accuseds wrongful intention) beyond a reasonable doubt. The Crown must prove that the accused had a positive state of mind such as intent, knowledge, or recklessness as to consequences. If the accused did not intend to do wrong (eg, if the offence occurred acc
20、identally), he or she will be acquitted. Example: Criminal Code offences such as theft or murder. (b) Offences of absolute rem7 Such offences have no mental element: the defendant can be convicted even if the offence occurred accidentally or without his or her fault. Example: Constructing an exhaust
21、 without the necessary permit was once considered an offence of absolute liability.8 O where the only relevant facts are those which relate to the actus 1.2.2 The Facts The City of Sault Ste. Marie was prosecuted because it had hired a local contractor to dispose of the domestic garbage of local res
22、idents. The City took no part in the actual disposal operations, and made no stipulations about them in the contract, bylaws, or otherwise. The contractor selected a dumpsite, next to a creek, that contained several springs. The garbage was piled too high and too close to the creek and springs. Subs
23、tantial water pollution resulted. Both the City and the contractor were charged with “causing or permitting the discharge of polluting material into the creek, contrary to what is now s. 30 of the Ontario Water Resources Act (OWRA).9 The contractor was clearly liable, but what about the City? This q
24、uestion received a different answer from each of five courts as the case worked its way up the appeal system to the Supreme Court of Canada. luly 2007 7 PLUS 7 762 O Canadian Standards Association 1.2.3 The Issue The Crown (e, the prosecutor) argued that the City should be absolutely liable, with no
25、 mental element required. The pollution occurred from its garbage. Anti-pollution statutes, such as the OWRA, are essential for the general welfare of society, they argued. It would be too difficult to enforce these important laws if the Crown had to prove in each case what the defendant intended. T
26、he defendant would usually be the only one who knew that. Besides, they argued, the penalties for these offences were relatively small. As the defendants had relatively little at risk, the court should not interfere with law enforcement to assist them. The City lawyers argued, in contrast, that the
27、City could not have “caused or permitted the pollution, when they did not even know it was happening. Their staff were nowhere near the site. No one, they said, should be convicted of such an offence without fault. 1.2.4 The Decision The Supreme Court decided, in effect, that both were right. The Ci
28、ty should not be convicted of pollution if it was genuinely not at fault. But the Crown has to have a practical and effective way to enforce ”public welfare statutes” such as the OWRA. It is not practical to require the Crown to prove what a defendant intended, especially where the defendant is a co
29、rporation or municipality. The party best able to discover that intent is the defendant. Thus, the court created a compromise, known in Canada as the doctrine of “strict liability”.0 In the wide class of public welfare offences,” the Crown need only prove the actus reus,” e, that the offence occurre
30、d and that the defendant was in a position of control over it. The offence is committed if the prohibited act or omission (such as a polluting discharge) occurs, whether or not the defendant intended it to occur. It is said that a person could not be said to be permitting something unless he knew wh
31、at he was permitting. This is an over-simplification. The prohibited act would, in my opinion, be committed by those who undertake the collection and disposal of garbage, who are in a position to exercise continued control of this activity and prevent the pollution from occurring, but fail to do 50.
32、 The Crown need prove no mental element or intention. It is then open to defendants to excuse themselves by proving, on a balance of probabilities, that they were not at fault (e, that they had done everything reasonable to prevent the ffence). This is called establishing due diligencels Today, almo
33、st all environmental offences are public welfare offences of strict liability, e, where a defence of due diligence may be cIaimed.l6 The City of Sault Ste. Marie, having failed to take any significant steps to ensure that the disposal of its waste would not pollute, was ultimately convicted. 1.3 Due
34、 Diligence and Civil Negligence 1.3.1 General The defence of due diligence requires the defendants to show that they did everything that was reasonable in the circumstances to prevent the offence. This is the obverse of the familiar tort test of. neg1igene.l In tort, everyone must use reasonable car
35、e to avoid causing harm to his or her “neighbour” (e, any person whom he or she can reasonably anticipate may be adversely affected by his or her conduct); if not, he or she may be sued and forced to pay damages. In public welfare offences, everyone must use reasonable care to avoid breaching statut
36、es and regulations; if not, he or she may be prosecuted and convicted. 2 luly 2007 0 Canadian Standards Association IS0 1400 1 and Compliance in Canada The equivalence between lack of negligence and due diligence has characterized the defence of due diligence since its creation in R. v. Sault Ste. M
37、arie. The very definition of due diligence was drawn from the words of Clanville Williams, the noted expert on torts (including civil negligence): There is a halfway house between mens rea and strict responsibility which has not yet been properly utilised, and that is responsibility for negligence.8
38、 The words “negligence“ and “due diligence“ or “due care“ are used almost interchangeably throughout the judgment. For example, O In this doctrine, r: rx not up to the prosecution to prove negligence. Instead, it is up to the defendant to prow thaf all due care has been taken. . The defence will be
39、available if the accused reasonmi, believed in a mistaken set of facts which, if true, would render the act or omission innoccni, or 11 he took all reasonable steps to avoid the particular event. This equivalence betwecln negligence and due diligence has several advantages. For one thing, it helps t
40、o define the required standard of behaviour, by permitting reference to the large body of tort law dealing with negligence For another, it helps to ensure that tort law supports and reinforces regulatory goals, rather than contradicts and impedes them. Due to the equivalence between negligence and d
41、ue diligence, the actions required to avoid civil liability will also help to avoid prosecution and conviction for regulatory offences, and vice versa. 1.3.2 “Cause or Permit“ Since 1978, R. v. Sault Ste. Marie has been the most frequently cited case in Canada. It has been followed and applied thous
42、ands of times. As a result, responsibility for “negligent“ pollution has been greatly expanded. For example, a company that retains a contractor to deliver fuel oil to remote locations, and fails to advise the contractor that one of the fuelling cabinets is out of service, “permits“ the contractor t
43、o attempt to pump fuel into the cabinet, and thus “permits“ the resulting farmer “permits“ manure to foul a stream where he knows that some manure is escaping into a ditch from which it is subsequently washed by heavy rain.2 A O On the other hand, the courts have not imposed liability on those who h
44、ad neither knowledge nor reasonable means of knowledge of the risk of an environmental offence, and who did not influence, control, or contribute to it.22 Imposing liability on such persons would do nothing to improve the standard of commercial behaviour; by definition, nothing which they could reas
45、onably have done would have prevented the pollution. Moreover, it would be unfair.23 Due diligence and compliance are not identical, but they are inseparable. Perfect compliance means never having an error or accident. It means never having the exceedance, never being late in filing the report. This
46、 is a level of perfection that is rarely achieved, and even more rarely maintained, in a complex organization. Due diligence defines what the organization must actually do in striving to achieve perfect compliance. Due diligence is the task of management; compliance is one of the intended results.24
47、 1.3.3 The Standard of Care The legal theory of the standard of care establishes general principles. “Reasonable care“ implies a scale of caring. The more important the interests which are threatened, the greater the risk to those interests, and the more likely the risk will occur, the higher the st
48、andard of care must be.25 The principal concept of a scale of caring is no more than common sense: most of us would want higher standards in a plant handling radioactive wastes compared to what we would expect (or want to pay for) in a barn of rotting rutabagas. In the ordinary, non-hazardous activi
49、ties of daily life, the standard of care is the familiar tort (negligence) standard of that mythical creature, the “reasonable man“. The reasonable man O July 200 I 3 PLUS 7 162 O Canadian Standards Association . is not an extraordinary or unusual creature, he is not superhuman. He is not required to display the highest skill of which anyone is capable. He is not a genius who can perform uncommon feats, nor is he possessed of unusual powers of foresight. He is a person of normal intelligence who makes prudence a guide to his conduct. He does nothing that a prudent m
