December 2004

Disclaimer: Agrilaw is a syndicated column produced by the full service London law firm of Cohen Highley LLP.  Paul G. Vogel, a partner in the firm, practises in the area of commercial litigation and environmental law.   Agrilaw is intended to provide information to farmers on subjects of interest and importance. The opinions expressed are not intended as legal advice.  Before acting on any information contained in AgriLaw, readers should obtain legal advice with respect to their own particular circumstances.

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The Federal Fisheries Act prohibits the deposit in “water frequented by fish” of any substance which “if added to water, would degrade or alter … that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water”. In a prosecution under the Act for alleged contravention of this prohibition, must the Crown prove that the substance introduced into the water is actually deleterious to the receiving water and poisonous or harmful to fish in that location or is it sufficient for conviction that the substance be proven to be likely to render any water deleterious to fish or fish habitat or to the use by man of fish that frequent the water?

In considering the case of a municipality which had permitted leachate from a municipal dump site to flow into an adjacent river, the Ontario Court of Appeal has recently determined that, for conviction of an offence under the Fisheries Act, the Crown is not required to prove site specific impairment. Although the same court has earlier determined that conviction under provincial legislation for “impairing water quality” requires consideration (at least in the case of substances not inherently toxic) of the specific circumstances of the discharge including quantity, concentration and time frame, conviction under the Fisheries Act requires only proof that the substance may render water deleterious to fish. In coming to this conclusion, the court stated:

“ … the Fisheries Act … prohibits persons from (1) depositing or permitting the deposit of (2) a deleterious substance of any type (3) in water frequented by fish or in any place where the deleterious substance may enter such water. …”

“A substance is deleterious if, when added to any water it would alter the quality of the water such that it is likely to render the water deleterious to fish, fish habitat or to the use by man of fish that frequent the water. There is no stipulation … that the substance must be proven to be deleterious to the receiving water … On the contrary, the language makes it clear that the substance is deleterious if, when added to any water, it degrades or alters the quality of the water to which it has been added. The “any water” referred to … is not the receiving water. Rather, it is any water to which the impugned substance is added, after which it can be determined whether the quality of that water is rendered deleterious to fish, fish habitat or the use by man of fish that frequent that water …”

“The focus … is on the substance being added to water frequented by fish. It prohibits the deposit of a deleterious substance in such water. It does not prohibit the deposit of a substance that causes the receiving water to become deleterious. It is the substance that is added to water frequented by fish that is defined, not the water after the addition of the substance. A deleterious substance does not have to render the water into which it is introduced poisonous or harmful to fish; it need only be likely to render the water deleterious to fish.”

The Court further held that, in a prosecution under the Fisheries Act, the Crown is also not required to prove the nature of the allegedly deleterious substance. The Court held:

“The prohibition … is against the deposit of a deleterious substance “of any type”. What must be proven is that the substance, whatever it might be, is a deleterious substance … in this case, it meant that the prosecution had to prove that the leachate, when added to any water, was likely to render the water deleterious to fish or fish habitat or to the use by man of fish that frequent the water. It did not have to prove which component of the leachate was responsible for the degradation or alteration of the quality of the water such that the water was likely to be rendered deleterious to fish. Nor was it obliged to show that fish living in the vicinity of the seep were harmed. It was required only to prove the elements of the offence as set out above.”

Accordingly, liability to prosecution and conviction under the Fisheries Act may result from the discharge of any substance even if naturally occurring and not inherently toxic if the substance, when added to any water, may render the water deleterious to fish. Subject to the possible defence of “due diligence”, if the discharge may be deleterious to fish when added to any water, the quantity, concentration and period of discharge and adverse site specific impacts need not be proved to support conviction.