Browsing the archives for the Burden Of Proof tag.

MNR Proposal Abdicates Responsibility for SAR

Green Reality, South March Highlands

The Ontario Ministry of Natural Resources (MNR)’s current regime for managing approvals for permits affecting Species-At-Risk (SAR) is already flawed and the proposed changes described in the Environmental Bill of Rights Registry (EBBR 011-7696). make the situation worse – not better.

The current regime is based on providing a process for approving an activity that might harm SAR, or SAR habitat, that is based on an emphasis that mitigates impacts.

  • This is based on a false presumption that mitigation is always possible.
  • Most permit applications are granted if the mitigation for the SAR in question is relocated to a different ecosystem (i.e. moved, transplanted, or seeds replanted).

The existing Approvals process completely ignores the ecosystem implications of a permit by focusing too narrowly on the SAR in question and not on its relationship to the ecosystem it resides in and contributes to.

No vegetation or wildlife (or humans) exist in isolation of other living things.  Each has an impact on the other and within a natural ecosystem, these impacts are beneficial, balanced, and necessary for the whole – otherwise the ecosystem would be different.  Ecosystem change is usually caused by a dis-balance caused by an external event such as human activity, disease, fire, flood, or invasive species.

Instead of (a) requiring a burden of proof that mitigation is possible and (b) ensuring that broader ecosystem effects are included in this process, this proposal makes matters worse by continuing the MNR’s policy of ecosystem piecemealing via regulation.

The breadth of exemptions in the proposal is unreasonably broad because it includes all already approved or planned activities that might damage habitat.

  1. Encompassing all activities is unreasonable in scope.
  2. The proposal does not take into account the fact that approvals (such as a PTTW or CoA) have been granted in the past by agencies without regard to impact on SAR.  These agencies granted their approvals under the expectation that the MNR would fulfill any SAR-related approvals. If the MNR abdicates responsibility, then there is no consideration for SAR under any prior approval granted by any provincial ministry.
  3. The definition is so vague as to allow virtually any activity to quality – for example proposed plans of subdivision approval that have not yet been approved under the Planning Act.  This would remove what little protection exists for all 22 SAR documented in the South March Highlands.

The MNR’s rationale for grandfathering so many activities & exemptions is so dubious as to completely lack credibility.  How will the grandfathering and creation of so many exempt activities that damage habitat contribute to the overall benefit of SAR?

While it is apparent that the MNR seeks to shrink its job in the face of insufficient funding by McGuinty, the creation of so many exemptions will create an unsustainable workload for the MNR to manage the enforcement of compliance with.  Any alleged violation would require considerably further substantiation and validation of prior approvals by other agencies.  In my view, not performing such validation would constitute environmental negligence on the part of the MNR.

The proposed exemptions would also create two classes of SAR (existing and new) which has no reasonable basis in the Crown’s primary obligation to protect all SAR.  This also creates a legal liability for the province in view of recent Federal Court ruling on the fiduciary obligation of the Crown to provide such protection.  Protection of critical habitat is a duty – not a government discretion.

The Federal Court ruling sets a precedent that all levels of government must follow.  In Ontario, this duty is also enshrined in the Environmental Bill of Rights.

The proposed changes amount to abdication, not modernization, and should be opposed.   The Coalition to Protect the South March Highlands, Carolinian Canada CoalitionOntario Nature, and the David Suzuki Foundation have already expressed their opposition to this.

If you also oppose this, please make an individual posting to the EBBR.  Type in the 011-7696 Registry Number in the search box.  Search for and select the proposed change to bring up a description of it.  From there it takes less than 5 minutes to click on the Submit Comment button on the right side of the screen and to fill out the form or to cut and paste your comment.

Feel free to use any or all of the above via cut-and-paste if you wish.

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Probable Lost Cause

Civil Rights

Random Breath Testing

The Harper government is determined to erode the Charter of Rights protection against unreasonable search.

Their latest assault is found in the discussion paper on drunk driving legislation. 

While many of the proposed changes in the discussion paper are long-overdue, the Dept of Justice is also proposing that police be allowed to search drivers for intoxication at random and without reasonable cause.

Their reasoning for this is that since Australia, New Zealand, and 22 European countries violate their citizen’s right to be protected against unreasonable search, so should Canada.

By that rationale we should also eat shit because a million flys can’t be wrong!

Random vs RIDE

Random breath testing (RBT) is different than the Reduced Impaired Driving Everywhere (RIDE) program that we are all familiar with

In the RIDE program, police stop all cars at a particular checkpoint but only administer breath tests if they subsequently have reasonable cause to do so.  This screeening is consistent with our Charter Rights and has proven to be effective in cutting down on drunk driving.

However, the government is now proposing to search drivers for intoxication without reasonable cause.

The discussion paper suggests that RBT is necessary because relying on the judgement of police is a weakness in the current system of detecting drunk drivers. 

However, if we cannot rely on the good judgement of police today, will we abandon jury trials tomorrow because we cannot rely on the good judgement of jurors?  What about the reliance on the good judgement of judges? 

In fact our entire legal system rests on good judgement in combination with Charter Rights – and that is a good thing.

The Charter recognizes that our Rights need to be balanced against the common good.  Our rights can be overridden if there is a compelling reason to do so.

However, the discussion paper does not meet the burden of proof that there is an overriding reason to violate the Charter right.  There is no evidence that suggests that:

  • a system of random checks is more effective than the current method whereby a police request a breath test on the basis of reasonable cause.  The statistics cited in the annex of the report do not prove that an alternative to RBT cannot obtain the same result as those claimed for RBT, or that a combination of measures (such as reducing allowable alcohol blood levels, more frequent use of RIDE, etc) cannot obtain the same results as RBT. 
  • random breath tests will be a deterrent to drunk drivers. 

Instead of RBT, a better deterrent would be to substantially increase the fines for a first offence and the penalties for subsequent offences beyond the amount proposed in the discussion paper. 

To quote an old saying, “an ounce of prevention is worth a pound of cure”.

Slippery Slope

First the airports and now our cars.  Where will this end? Will our homes be next?

If we allow police to search us without reasonable cause, they can enter our homes on a fishing expedition at any time just to check that we are not law-breakers.

The argument that “if you are a law-abiding citizen you have nothing to fear” assumes that miscarriage of justice never happens.  Tell that to Maher Arar, or the many innocent people incarcerated in Canadian jails because of a mistake / incompetence / or malfeasence by police.

Our right to privacy is fundamental.  Please tell the government so by emailing the Justice Department at ID-consultation-FA@justice.gc.ca and objecting to random breath testing.

You have until April 30, 2010 to do so.  After that point, the consultation period ends and so will your right to privacy.

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