Current federal environmental law is enforced using a variety of measures, including written warnings, tickets and prosecution. But the existing range of enforcement measures may not always be appropriate in the circumstances to effectively encourage compliance or deter future violations. For example, written warnings may not be sufficient to promote ongoing compliance, particularly when the risk of prosecution is perceived to be low. Prosecutions are expensive and time-consuming, and so often impractical for less serious offences. And tickets may be issued only for designated minor violations and only in certain jurisdictions. But there’s another enforcement option available: administrative monetary penalties (AMPs). The federal Environmental Violations Administrative Monetary Penalties Act, which took effect in Dec. 2010, authorized a system of AMPs for environmental violations but needed regulations to actually create that system. Here’s a look at the related regulations the federal government recently proposed to create such a regime.
Key Dates: The Environmental Violations Administrative Monetary Penalties Regulations were published in the Canada Gazette on April 9, 2016. The comment period is open for 60 days (or until June 8, 2016). The proposed regulations would take effect on the day on which they’re registered.
Covered Violations: To impose an AMP, a designated government official must have reasonable grounds to believe that a “person,” ship or vessel has committed a designated violation. The proposed regulations would apply to violations of the following six federal environmental laws and their related regulations:
- The Antarctic Environmental Protection Act;
- The Canada Wildlife Act;
- CEPA, 1999 (Parts 7 and 9);
- The International River Improvements Act;
- The Migratory Birds Convention Act, 1994; and
- The Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.
In addition, the proposed regulations would apply only to designated violations, which are listed in schedules and would include:
- Violations of specified provisions of the six environmental laws and regulations made under those laws;
- Violations of specified directions and orders; and
- Failures to comply with specified conditions of a permit, licence or other authorization.
But most offences under each applicable environmental law and related regulation are covered, meaning that AMPs would be available to enforce a wide range of violations. Exceptions would include offences that require proof that an alleged offender possessed a certain mental state when the violation was committed, such as those offences that explicitly require an act to be committed “knowingly” or “wilfully.”
Calculation of AMPs: The proposed regulations specify how the amount of an AMP would be calculated in a given situation. The baseline penalty amount applicable to a violation would vary depending on the type of violation and the identity of the violator, i.e., whether it’s an individual, company, government agency, ship or vessel. Each designated violation would be classified as either Type A, B or C, with Type A being the least serious offence and Type C violations being the most serious. The baseline penalties range from $200 to $25,000. And imprisonment is not an option for an AMP imposed on an individual.
The benefit of AMPs is that they let the government fine violators quickly and respond promptly to violations before too much damage is done to the environment. The hope is that AMPs will encourage greater compliance by providing a financial disincentive to non-compliance when other enforcement measures may not be effective or available. And because AMPs are intended to supplement existing enforcement measures, you can’t be subjected to both an AMP and a full-blown prosecution for the same violation. For more information on how AMPs for environmental violations work in general, including whether due diligence is a defence to an AMP, see “Environmental Offences: 10 FAQs about Administrative Monetary Penalties.”