Volume 1 - Resource Management
Chapter 16 - Enforcement

Policy 16.19 - Prosecutions

Effective Date: 23-November-98
Updated: 9-February-2006
Responsible Branch: Compliance and Enforcement Branch

Resource Management Volume Table of Contents | Amendment Log

Scope

This Policy will be considered on all investigations undertaken by Ministry of Forests and Range staff to determine if a case warrants forwarding to Crown Counsel for consideration of charges for offences under the Forest Act, the Range Act, the Forest Practices Code of British Columbia Act, the Forest and Range Practices Act, the Wildfire Act and their regulations, or the Criminal Code (Canada).

The scope of this policy does not include the issuance of tickets, which is addressed in Ministry Policy 16.11, and does not address when an investigation should take place, which is addressed in Ministry Policy 16.6.

Purpose

To ensure that cases forwarded to Crown Counsel for consideration of charges are made in a consistent manner, and that charges, in consideration of available resources, are recommended by Ministry C&E or Protection staff where the fact pattern indicates it is appropriate to do so.

Definitions

For the purposes of this policy:

"charge approval" means the decision process of Crown Counsel where he/she reviews all the information and evidence submitted to them by way of a Report to Crown Counsel in order to determine if the case should proceed to prosecution.

"Crown Counsel" means an Environmental Crown Prosecutor employed by, or on contract to, the Criminal Justice Branch of the Ministry of Attorney General.

"delegated decision maker" means a person delegated by the Minister to make determinations and apply penalties pursuant to section 71 of the Forest and Range Practices Act or sections 26 and 27 of the Wildfire Act.

"DCL" means a District Compliance Leader.

"gross negligence" means a conscious, voluntary act or omission in reckless disregard of a legal duty and the consequences to another party.

"offence" means any contravention of a section of an act or regulation that is designated by that act or regulation as being an offence.

"official" means a Ministry employee designated as an official under the Forest and Range Practices Act or the Wildfire Act, and a Ministry employee designated as an officer under the Forest Act.

"person" means a corporation, partnership, party, or natural person and the personal or other legal representatives of a person to whom the context can apply according to law.

"reckless disregard" means a conscious indifference to the consequences.

"Report to Crown Counsel" means a formal document submitted to Crown Counsel containing all the information and evidence necessary for Crown Counsel to make an informed charge.

"senior staff" means, for the C&E program, the District Enforcement Specialist, or, where there is no District Enforcement Specialist, a Regional C & E Specialist, or, the C&E Supervisor or the DCL in consultation with a Regional C&E Specialist.

"senior staff" means, for the Protection Program, the Fire Centre C&E Leader.

"wilful" means voluntary and intentional but not necessarily malicious.

Policy

It is Ministry policy that:

The Ministry may not proceed with both an administrative penalty and a prosecution for the same offence. Where a prosecution is unsuccessful or charge approval is not obtained, the Ministry may subsequently seek an administrative remedy. Prosecution of an offence does not preclude making the Crown whole, removing any economic benefit, the use of a Stop Work Order, seizure of goods pursuant to section 67 or 68 of FRPA, or the issuance of a remediation order.

Independence of decision to prosecute

It is a C&E program decision as to whether information and evidence gathered in an investigation supports prosecution. A decision to seek prosecution is to be independent from any delegated decision maker influence.

Authority to Approve Charges

All decisions regarding charge approval remain the responsibility of the Criminal Justice Branch of the Ministry of Attorney General. Nothing in this policy precludes Crown Counsel from providing legal advice to the investigators at any time regarding cases and questions of general policy.

Evaluation Process Leading to a Report to Crown Counsel

The evaluation process leading up to a decision of whether or not the Ministry will forward a Report to Crown Counsel addresses two important operational questions:

  1. Does the information and evidence gathered to date on the case meet the prosecution test (i.e., is the alleged contravention an offence and do the facts support submitting the case to Crown Counsel)?
  2. Can the Ministry support the investigation to the extent necessary to provide Crown Counsel with all the information and evidence necessary to make an informed charge approval decision?

Prosecution test process

The decision as to whether or not the case meets the prosecution test will be based solely on the fact pattern of the case. For all offences where the lead investigator is C&E program staff, the decision to prosecute will be a joint decision between the lead investigator and senior C&E staff. For all offences where the lead investigator is Protection Program staff, the decision to prosecute will be a joint decision between the lead investigator and senior Protection Program staff.

The test should be applied, where practical, prior to the investigation being completed to ensure administrative processes do not interfere with evidence gathering. Re-evaluation of the test should take place whenever significant information or evidence is obtained that could alter the original decision with regard to whether a case should be forwarded, via a Report to Crown Counsel, to Criminal Justice Branch for an informed charge approval decision.

Environmental Crown Counsel [ECC] may be consulted.

Officers and Officials may seek guidance and input from their local ECC at their discretion prior to, during or after the Prosecution test process with respect to questions of evidence, jurisdiction, process, Ministry of the Attorney General policy on prosecutions, or any other matter that may require clarification or guidance.

Prosecution test will be considered on all investigations that may lead to a Report to Crown Counsel

The charge approval process used by Criminal Justice Branch determines whether there is a substantial likelihood of conviction, and whether it is in the public interest to prosecute.

In order to assist the decision-making process in determining if a case should be forwarded to Crown Counsel for consideration of charge approval, a Prosecution Test has been developed.

Prosecution Test

Charges will be recommended where:

  • the investigator has reasonable and probable grounds to believe that an offence has occurred against provincial forestry legislation or the Criminal Code (Canada);

AND ONE OR MORE OF THE FOLLOWING FIVE CONDITIONS ARE MET:

  • administrative remedies alone, or other attempts to gain compliance have not been effective in the past; or
  • the offence was a consequence of gross negligence; or
  • the offence arose from a reckless disregard for the law; or
  • the offence has serious impact on, has damaged, or has potential to damage the environment, or has endangered the property or safety of innocent parties; or
  • there was intent to commit an offence.

AND ALL OF THE FOLLOWING FIVE CONDITIONS ARE MET:

  • there is likelihood of conviction; and
  • the evidence shows the offence occurred; and
  • the evidence shows the participation of each of the parties involved; and
  • the standard of care taken by the person was below what could be reasonably considered duly diligent, and
  • " it is in the public interest to proceed with a prosecution.

Who to Charge

Where the above factors indicate that a Report to Crown Counsel should be made, care will be taken to ensure that the appropriate person is charged. In order to obtain enough information and evidence to make recommendations to Crown Counsel on whom to charge, the investigator will investigate all parties involved in the wrongdoing, to determine:

  • the degree to which each party's actions contributed to the wrongdoing;
  • the degree of control each party had over the wrongful action;
  • the economic benefit each party could have realized from the wrongdoing;
  • the degree of willfulness on the part of each involved party; and
  • the degree of due diligence shown by each party to the wrongdoing.

Review of Reports to Crown Counsel

All completed Reports to Crown Counsel will be critically analyzed, reviewed and approved prior to submission to the ECC for charge approval. Review and approval will be by senior staff. Regional and/or headquarters staff will be consulted on as needed basis.

Resource Implications Process

Where a Report to Crown Counsel is prepared, a District Compliance Leader, Regional Compliance and Enforcement Manager, or the Fire Centre C&E Leader, as the case may be, will review the case details as required to determine whether there are sufficient resources (expertise and budget) to complete the investigation to the degree necessary to gather the information and evidence necessary to support charge approval.

If it is determined that there are not sufficient resources, a briefing note will be forwarded to the Regional C&E Manager, or the Fire Centre Manager, as the case may be, indicating the identified shortfall in resources. The Manager will review the shortfall of resources, and will determine whether reallocating regional resources can make up the shortfall. Where regional resources are unavailable, other regions or branches are to be contacted for assistance. If the Manager is not able to provide the necessary resource shortfall, the district C&E leader and the C&E Branch Director will be advised. A provincial record of all cases that cannot proceed due to resource shortfall is to be kept by the C&E Branch.

If it is determined that additional funds are required to cover non-traditional, extraordinary investigation costs, the appropriate compliance & enforcement leader may consider a request for funding from the Environmental Remediation Sub-account (see policy 16.24, Remediation Sub-account).

Briefing of Appropriate Staff

A District Manager, Regional Executive Director, the Manager of a Fire Control Centre, and Executive may be briefed upon request and to the extent appropriate, but will not have decision-making or veto powers regarding whether the prosecution is to be pursued or which party will be recommended for prosecution.

Limitation Periods

The time limit for laying an information respecting an offence under the Forest Act, the Range Act, the Forest Practices Code of BC Act, and the Forest and Range Practices Act and their regulations is 3 years beginning on the date on which the facts that lead to the determination that the contravention occurred first came to the knowledge of an official.

The time limit for laying an information respecting an offence under the Wildfire Act and its regulations is 2 years beginning on the date on which the facts that lead to the determination that the contravention occurred first came to the knowledge of an official.

References

  • Forest Act
  • Range Act
  • Forest Practices Code of BC Act
  • Forest and Range Practices Act
  • Wildfire Act
  • Criminal Code [Canada]