Copyright 2010, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Environmental Law, May 2010

On April 15, 2010, the Minister of Sustainable Development, Environment and Parks tabled Bill 89 in the National Assembly. Bill 89 is aimed at reinforcing compliance with the Environment Quality Act by adding administrative penalties to the enforcement toolbox and toughening sanctions.

ADMINISTRATIVE PENALTIES

Under the bill, officials and inspectors can now issue administrative sanctions on the spot for violations of the Act or its regulations. Penalties can range from C$250 to C$2,000 for individuals and from C$1,000 to C$10,000 for corporations. If an offence continues for more than one day, it constitutes a separate offence for each day on which it continues. Where a legal person fails to pay, the Minister may claim the amount from the company's directors or officers, if they are found to have tolerated or encouraged the offence. Penalties can be challenged before the Administrative Tribunal of Québec. Administrative penalties can be levied in addition to any penal proceedings being brought against the person.

PENAL PROCEEDINGS

With regard to penal offences, the maximum penalty for certain major offences, such as the release of a prohibited contaminant, failure to submit a site assessment or cleanup plan, the refusal to comply with an order, or carrying on a business without an environmental operating permit, will increase from C$25,000 to C$1-million for individuals and from C$500,000 to C$6-million for legal persons.

The bill extends the maximum prison term to three years for the most serious offences and to five years less one day for subsequent offences. Other penal provisions are also amended. When an offence is committed by a director or officer of a legal person, partnership or association, the maximum fine will increase from C$25,000 to C$2-million, and limitation periods are extended.

AGGRAVATING FACTORS

The bill identifies aggravating factors the judge must now take into account at sentencing. These factors set parameters that do not exist in current law and which will make the imposition of the maximum sentence possible. Among these factors are the seriousness of the harm, or risk of harm, to human health or the environment, cleanup costs borne by society, the degree of responsibility of the offender, as well as his behaviour after the offence. In addition, upon request of the prosecutor, the judge may also charge the offender an additional fine equivalent to the amount of the monetary benefit realized by the latter as a result of the offence. This is possible even if the maximum fine has already been imposed.

LIMITATION PERIODS

For penal offences, the bill provides for a prescription period of five years from the commission of the offence instead of the two years in the current Act. For certain offences, or where false representations have been made, that period is two years from the date of commencement of the investigation that makes possible the discovery of the offence. The longer time period applies.

CONCLUSION

Quebec is following other provinces and the federal government by adding administrative penalties to the tools already available for enforcing its Environment Quality Act. We will have to wait until after the adoption of the proposed amendments to see their effect on the ground.

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