Compliance and enforcement policy for the Canadian Environmental Protection Act: chapter 6

Inspection and Investigation

• Inspection
• Inspection Program
• Investigation

Enforcement officers appointed under the Canadian Environmental Protection Act, 1999 carry out two categories of enforcement activity: inspection and investigation. A general discussion of these two types of activity follows.

Inspection

The purpose of an inspection is to verify compliance with the Canadian Environmental Protection Act, 1999 and its regulations. To conduct an inspection of premises other than a private dwelling, an enforcement officer must have reasonable grounds to believe that, on the premises that he or she intends to enter and inspect, there are activities, materials, substances, records, books, electronic data or other documents that are subject to the Act or relevant to its administration.

Sometimes, an enforcement officer may be refused entry to premises where there are activities, materials, substances, records, etc. that are relevant to the Act. The officer may also find premises that are locked or abandoned. Those premises could be factories, distribution centres or the offices of private companies or federal institutions. For such cases, an enforcement officer may seek an inspection warrant from a justice of the peace. In the inspection warrant, the justice may name any person to accompany the enforcement officer or authorize, in the inspection warrant, the use of any power that the justice deems required, including the use of force to break locks or force open a locked door.

In the case of a private dwelling which the enforcement officer has reasonable and probable grounds to believe may be subject to inspection under CEPA, 1999 or any of its regulations, the officer is required to seek the consent of the occupant, in order to carry out the inspection. Where consent is refused, the officer must obtain an inspection warrant, and can seek, from a justice, authorization for persons to accompany him or her or to use force as described in the previous paragraph.

In the course of an inspection, an enforcement officer may examine substances or products, open and examine receptacles, containers or packages, and take samples. The officer may also examine books, records or electronic data and make copies of them.

If, during an inspection, an enforcement officer must shift to the investigative role, he or she will so indicate to the individual, company or government agency. The enforcement officer will act similarly if, in an emergency, he or she must direct or cause action to be taken following an unauthorized release or to prevent such a release.

If, as described above, an enforcement officer discovers a violation during an inspection, the officer may determine that circumstances are exigent and that he or she must take action on the spot. In exigent circumstances, namely, when the delay necessary to obtain a warrant would likely result in danger to the environment or human life or in the loss or destruction of evidence, the enforcement officer will begin an investigation immediately and, where necessary, exercise the power to search without a warrant, and to seize and detain items. In all other circumstances, where the enforcement officer has determined that further investigation is required, this will be done under the authority of a search warrant. Investigation of violations is discussed below. The possible responses to violations discovered by enforcement officers are discussed in detail in the chapter of this policy entitled "Responses to Alleged Violations".

Inspection Program

There will be a program of inspections, complemented by spot checks. The schedule of inspections will be determined by the risk that the substance or activity presents to the environment or to human health, and by the compliance record of the individual, company or government agency. In addition, it is generally the case that, when new regulations are brought into effect, they are identified as priorities within Environment Canada's inspection program under CEPA, 1999. Inspection schedules will also be established to verify adherence to:

• warnings;
• directions by enforcement officers;
• Ministerial orders;
• environmental protection compliance orders;
• injunctions;
• environmental alternative measures; and
• court orders upon conviction of an offender.

Ministerial orders as well as directions by enforcement officers, environmental protection compliance orders and environmental protection alternative measures will be discussed in the chapter entitled "Responses to Alleged Violations".

If information or complaints have been brought to the attention of enforcement officers, additional inspections will be carried out as required. In addition, enforcement officers may develop a special inspection schedule when companies or facilities undertake expansion or alteration of a process.

Investigation

An investigation involves gathering, from a variety of sources, evidence and information relevant to a suspected violation. A search is a component of an investigation, and the search power may be used by enforcement officers when fulfilling their duties under the Canadian Environmental Protection Act, 1999.

There are two instances in which an enforcement officer will conduct an investigation:

• when he or she has reasonable grounds to believe that an offence has been committed under the Act; or
• when an individual of at least 18 years of age, resident in Canada, petitions the Minister to investigate an alleged violation of the Act.

The only occasion when an enforcement officer will not seek a search warrant is in exigent circumstances as stated above.

During the course of a search with or without a warrant, enforcement officers may seize and detain anything which they reasonably believe was used to commit an offence under the Act, is related to the commission of an offence or will provide evidence of an offence. Enforcement officers will use their powers of seizure and detention, when they believe that the seizure is necessary and in the public interest. Reasons for seizure and detention may include:

• the need to take possession of a substance, equipment or any other thing to prevent danger to the environment, human life or health;
• the need to prevent distribution of a prohibited substance, products containing a prohibited substance, or substances new to Canada, for which the required information has not been provided to the Minister under the Act;
• the need to prevent the export of a substance for which notice of export to the receiving country is required, when that notice has not been provided to the receiving country or to the Minister within the prescribed time;
• the need to prevent further violation of the Act; or
• the need to prevent loss or destruction of evidence.

The enforcement officer may also move the seized substance, product, equipment or thing to a secure location when he or she believes that it is necessary and in the public interest.