Canada: Tougher Environmental Enforcement Measures Now In Place

Reprinted with the permission of Miller Thomson LLP
(*originally published in December 2010)

On December 10, 2010 many sections of Canada's Environmental Enforcement Act ("EEA") came into force. The EEA amends the offence, sentencing, penalty, and enforcement provisions of nine federal environmental statutes in the following respects:

  • Prescribing minimum fines;
  • Increasing fines up to $12 million;
  • Doubling penalties for second offences;
  • Creating different penalty regimes for individuals (including officers and directors of corporations), small corporations and large corporations;
  • Creating an administrative monetary penalty system;
  • Directing that fines be paid to an Environmental Damages Fund;
  • Requiring courts to order companies to notify shareholders;
  • Establishing a positive duty of care on directors and officers to comply with the legislation;
  • Creating a public registry for corporate offenders; and
  • Identifying factors that courts are to consider in sentencing offenders.

The federal statutes affected are the:

  • Canadian Environmental Protection Act, 1999
  • Antarctic Environmental Protection Act
  • Canada National Marine Conservation Areas Act
  • Canada National Parks Act
  • Canada Wildlife Act
  • International River Improvements Act
  • Migratory Birds Convention Act
  • Saguenay-St. Lawrence Marine Park Act
  • Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act

(the "Environmental Acts")

Increasing Penalties

One of the major changes under the EEA is the substantial increase in monetary penalties that a court may award upon conviction. The new fine scheme, summarized in the following table, differentiates between individuals, small corporations, and large corporations; between serious offences and other offences; and between summary convictions and indictment.

Offender

Nature of

Offence

Summary Conviction Indictment

Indictment

 

Minimum Fine

Maximum Fine

Minimum Fine

Maximum Fine

Individual (including directors & officers)

Most Serious

$5,000

$300,000

$15,000

$1,000,000

 

Other

N/A

$25,000

N/A

$100,000

Small Corporations & Most Serious Vessels under 7500 t

Most Serious

$25,000

$2,000,000

$75,000

$4,000,000

 

Other

N/A

$50,000

N/A

$250,000

Corporations & Vessels over 7500 t

Most Serious

$100,000

$4,000,000

$500,000

$6,000,000

 

Other

N/A

$250,000

N/A

$500,000

Sentencing

The EEA amends each Environmental Act to include a provision relating to the fundamental purposes of sentencing, which include: deterrence, denunciation, and reinforcement of the polluter-pays principle. In addition to sentencing considerations under the Criminal Code, the EAA directs courts to consider additional aggravating factors. These include whether the offence caused damage or risk of damage to the environment or ecosystem, the degree of damage, and whether the damage is extensive, persistent or irreparable. The Act's broad definition of damage as including both loss of use value and non-use value, increases the likelihood that a court will find this to be an aggravating factor.

Other aggravating factors include: whether the offence was committed intentionally or recklessly; whether the offender had the financial means to take reasonable steps to prevent the commission of the offence; whether the offender intended to increase revenue or decrease costs; whether there was a history of non-compliance; whether attempts were made to conceal the commission of the offence; and whether the offender failed to prevent, mitigate or remediate the effects.

Upon conviction, corporate offenders are required to notify shareholders, and their identity will be posted for a minimum of five years on a publicly accessible registry.

Repeat Offenders

The EEA prescribes that fines may be doubled for repeat offenders, making large corporations potentially liable to fines of $12 million. Furthermore, if a court is satisfied that profits were made in the commission of the offence, the Act makes it mandatory for a judge to impose an additional fine equal to such profits. While this new penalty scheme enables courts to impose much higher fines, a judge does have discretion to impose a fine below the minimum where there is proof that it would cause undue hardship. The Act prescribes that, unless otherwise ordered by the court, all fines be paid to an Environmental Damages Fund and used for purposes related to protecting, conserving or restoring the environment or to administering that Fund.

As of December 10, 2010, the penalty provisions of the following statutes have been amended: the Antarctic Environmental Protection Act; the Canada National Marine Conservation Areas Act; the Canada National Parks Act; the International River Improvements Act; and the Saguenay-St. Lawrence Marine Park Act. The amended offence, penalty, liability and sentencing provisions have not yet come into force for the following statutes: the Canada Wildlife Act; the Canadian Environmental Protection Act; the Migratory Birds Convention Act; and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.1

In addition to monetary fines, the EAA also provides for creative sentencing options upon conviction. Under the amended Environmental Acts, courts are authorized to suspend or cancel any licence or permit that was contravened. It also enables a court to prohibit the offender from applying for new licences or permits for a set period of time. Other innovative sentencing options include: preparation and implementation of a pollution prevention plan; payment of scholarships for environmental studies; and community service work.

Environmental Violations Administrative Monetary Penalties Act

The EEA also created the Environmental Violations Administrative Monetary Penalties Act (the "EVAMPA"), which came into force on December 10, 2010. The purpose of EVAMPA is "to establish, as an alternative to the existing penal system and as a supplement to existing enforcement measures, a fair and efficient administrative monetary penalty system for the enforcement of the Environmental Acts".

To achieve this purpose, the Act greatly expands the scope of potential liability. It establishes liability for a) directors and officers of corporations; b) directors, officers and owners of ships and vessels; and c) owners, operators, masters, and chief engineers of ships and vessels. Moreover, EVAMPA removes the defences of due diligence and mistake of fact to persons, ships or vessels named in a notice of violation. Absolute liability will arise as soon as it is established that the regulatory offence was committed.

EVAMPA also increases liability by providing that any violation that continues for more than one day constitutes a separate violation for each day on which it is committed. It may be that this Act, which can not be used to pursue a violation already subject to a proceeding under another Environmental Act, will be used to capture violations that would not otherwise be prosecuted. Although the Act expands the scope of liability, defendants may nevertheless favour prosecution under this Act, since its maximum penalty of $5,000 for individuals and $25,000 for other persons, ships, or vessels is significantly less than the maximum penalties in the Environmental Acts described above. Furthermore, violations of the Environmental Violations Administrative Monetary Penalties Act do not constitute an offence under the Criminal Code.

Enforcement Provisions Amendments

The amendments introduced by the EEA broaden the authority of enforcement officers and give them statutory immunity (provided that they act in good faith). Although their specific responsibilities vary under each Environmental Act, if an enforcement officer has reasonable grounds to believe that an offence has been committed, he or she is empowered to detain vessels; stop and detain conveyances; issue tickets; and arrest without a warrant. To assist enforcement officers to meet this expanded mandate, the Federal Government has committed to increasing the number of enforcement officer positions and improving its laboratory equipment and technical expertise.

Conclusions

To date, there are no reported decisions regarding prosecutions under the new EEA provisions or under EVAMPA. However, it is anticipated that these legislative amendments will promote deterrence, denunciation, and reinforcement of the polluterpays principle among those who commit environmental regulatory offences.

Footnote

1 The sections that have not yet come into force are: 47(2) and 48 (dealing with offences, penalties, liability and sentencing under the Canada Wildlife Act); 72 to 80, 87 and 88 (dealing with offences, penalties, liability and sentencing under the Canadian Environmental Protection Act, 1999); 101 and 102 (dealing with offences, penalties, liability and sentencing under the Migratory Birds Convention Act, 1994); 121 to 123 (dealing with offences, penalties, liability and sentencing under the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act); and 127 (dealing with coordinating amendment to Contravention Act).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Charles W. Bois
Sarah Hansen
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions