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.
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.
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
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.
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
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.
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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