Courts Give Further Direction On Due Diligence

Two recent Court of Appeal decisions, one in Ontario and one in B.C., provide considerable direction on the establishment of a due diligence defence in the context of environmental offences. R. v. Petro-Canada was released on January 29, 2003. It follows on the heels of R. v. MacMillan Bloedel, a 2002 B.C. Court of Appeal decision covering related ground.

The facts in Petro-Canada are fairly straightforward. Petro-Canada had a gasoline spill resulting from a pipe failure. It attempted to assert due diligence by demonstrating that it had a number of safety systems in place to prevent pipe failure, to detect the failures and to minimize any harmful effects. However, the trial judge concluded that the due diligence defence could not be applied because there was no evidence explaining the exact cause of the pipe failure. Without that evidence, he ruled, he could not determine whether Petro-Canada had actually taken reasonable care. On appeal