Environment in the Courtroom

Table of contents



Environment in the Courtroom (I):
Key Environmental Concepts and the Unique Nature of Environmental Damage

Sustainable Development Under Canadian Law
Paul Halley and Pierre-Olivier DesMarchais

A Precautionary Tale: Trials and Tribulations of the Precautionary Principle.
Chris Tollefson

Ecosystem Management: It's Imperative . . . Whatever It Is
Michael M. Wenig

Public Nuisance: Public Wrongs and Civil Rights of Action
Alastair R. Lucas, Q.C.

The Incorporation of an Environmental Ethic in the Courtroom
Dr. Heather McLeod–Kilmurray

The Intersection of Human Rights Law and Environmental Law
Nickie Nikolaou

Practical Engagement with Indigenous Legal Traditions on Environmental Issues:
Some Questions
Hadley Friedland

The Legal Concept of Sustainability
Natasha Affolder

How Legal Design May Constrain the Power of Law to Implement Environmental Norms:
The Case of Ecological Integrity in Canada's National Parks
Shaun Fluker

Applying International Law to Canadian Environmental Law
Charles-Emmanuel Côté

International Environmental Law in Canadian Courts
Phillip M. Saunders, Q.C.

Assessing Environmental Damages: How Much is Beauty Worth in Dollars?
Giorilyn Bruno

Environment in the Courtroom (II):
Environmental Prosecutions

The Exercise of Prosecutorial Discretion: Challenges to Environmental Prosecutions
Alex Ikejiani

Regulatory Negligence in Environmental Law
Lynda Collins and Jasmine van Schouwen

Strategic Decisions in Environmental Prosecutions
Paul McCulloch and Danielle Meuleman

Federal Versus Provincial Crowning
Susan McRory

Who Should Prosecute II:
Intragovernmental Aspects
Martin Z.P. Olszynski

Science and Advocacy
Heather McLeod-Kilmurray

Private Prosecutions Revisited:
The Continuing Importance of Private Prosecutions in Protecting the Environment
John Swaigen, Albert Koehl, and Charles Hatt

Due Diligence in Environmental Offences
Rhonda M. Vanderhoek

Certain Defenses in Criminal Law of the Environment
Jean Piette

Aboriginal Law in the Context of Regulatory Prosecutions
Cheryl Sharvit

Environment in the Courtroom (III):
Sentencing and Environmental Offences

Environmental Sentencing: Making the Best of a Blunt Instrument
Judge Barry Stuart

Holding Directors and Officers Liable for Environmental Problems:
Sentencing and Regulatory Orders
Dr. Dianne Saxe and Meredith James

The Enforcement of Environmental Law through the Use of Administrative Penalties
Jean Piette

Creative Sentencing in Environmental Prosecutions, the Canadian Experience: An Overview
John D. Cliffe, Q.C.

Creative Sentencing:
The Experience "Down–Under"
Sharon Mascher

Creative Environmental Sentencing—The Corporate Perspective
Allan Ingelson

Environmental Non–Governmental Organizations and Creative Sentencing: Perspectives and Roles
Cindy Chiasson

Negotiating Sentences
Peter J. Craig

Creative Sentence Negotiation:
Looking Beyond Deterrence
Paul Adams

The Law and Economics of Environmental Harm:
A Primer and Update for Environmental Sentencing (Parts I and II)
Martin Olszynski and Peter Boxall

The Law and Economics of Environmental Harm:
A Primer and Update for Environmental Sentencing (Parts III, IV &V)
Peter Boxall and Martin Olszynski

Environment in the Courtroom (IV):
Evidentiary Issues in Environmental Prosecutions and Hearings

Proving Causation:
Scientific Certainty vs. Legal Burden of Proof
Danielle Meuleman

Experts in Environmental Litigation
Marc McAree, Robert Woon, and Anand Srivastava

Communication Between Lawyers and Experts
Marc McAree, Robert Woon, and Anand Srivastava

Reporting Obligations to Third Parties
Marc McAree, Robert Woon, and Anand Srivastava

Admissibility of Expert Evidence and Costs
Marc McAree, Robert Woon, and Anand Srivastava

Experts Only
Jim Bunting, Terri-Lee Oleniuk, and Sarah Powell

An Overview of Expert Evidence in Canada
Gary A. Letcher and Andrea C. Akelaitis

Issues Respecting Expert Advisers, Expert Witnesses and Retaining Council
Nicholas R. Hughes and Monika A. Sawicka

Continuity of Evidence and Remediation Advice for Investigators: Some Brief Comments
John D. Cliffe, Q.C. and John S.G. Clark

Proving the Right to be Heard:
Evidentiary Barriers to Standing in Environmental Matters
Adam Driedzic

The Challenges of Gathering Expert Evidence by Private Individuals
Asha James

Challenges in Using Aboriginal Traditional Knowledge in the Courts
David Laidlaw

Privilege in Environmental Enforcement
Erin Eacott

Judicial Notice of Climate Change
Brenda Heelan Powell

Environment in the Courtroom (V):
Inspections and Enforcement Issues: On-site and in Court

Tit for Tat:
The Art of Responsive Regulation-How Agencies Can Motivate Regulated Firms to Become Virtuous
James Flagal

Regulatory Inspections:
A Private Practitioner's Perspective
Katia Opalka

Anatomy of Compliance Regime:
Imitations of Action-A Regulator's Perspective
Fred Maefs

Collecting Essential Evidence for Environmental Investigations and Prosecutions:
Approaches to Legal Strategy and Associated Issues
Jack D. Coop

Environmental Investigations—A Government Perspective
Paul McCulloch

Recapitulation and Alternatives—Lessons Learned From a Hypothetical Case Study
Jennifer Fairfax

Anatomy of Compliance Regime:
Recapitulation and Alternative Lessons from the United States
Jonathan Leo



Canadian environmental law is a dynamic and exciting area that is playing an increasingly important role in furthering sustainable development policy. Environmental law has distinctive relevant principles, operating procedures, implications, and importance in comparison with other areas of law, and these distinctions must be appreciated both within the legal community and by all those who are concerned with the way that courts handle environmental cases.

Environment in the Courtroom provides extensive insight into Canadian environmental law. Covering key environmental concepts and the unique nature of environmental damage, environmental prosecutions, sentencing and environmental offences, evidentiary issues in environmental processes and hearings, issues associated with site inspections, investigations, and enforcement, and more, this collection has the potential to make make a significant difference at the level of understanding and practice.

Containing perspective and insight from experienced and prominence Canadian legal practitioners and scholars, Environment in the Courtroom addresses the Canadian provinces and territories and provides context by comparison to the United States and Australia. No other collection covers these topics so comprehensively. This is an essential reference for all those interested in Canadian environmental law.


This seminal collection has the potential to make a significant difference at the level of understanding and practice . . . an essential and unreservedly recommended reference for all those interested in Canadian environmental law
- Carl Logan, Midwest Book Review