as we have described before, are "a halfway house between
tickets (such as traffic tickets) and full-scale prosecution."
In a prosecution, the Crown must prove beyond a reasonable doubt
that the "act" of an offence occurred. The defendant can
be acquitted if the defense proves, on a balance of probabilities,
that the defendant was duly diligent, i.e. did all it reasonably
could do to avoid committing the offence. AMPs require only proof
on a "balance of probabilities" that an offence occurred,
and no defense is possible. The fine is due and payable, subject
only to rights of review granted under the scheme. Unlike
prosecutions, jail time is not possible for AMPs.
Not all offences which currently can be prosecuted will also be
subject to an AMP regime. The proposed AMPs Regulations would
designate provisions of the following six federal acts and their
associated regulations that could be enforced by means of an
Protection Act, 1999, Parts 7 and 9 only;
Migratory Birds Convention Act,
Wild Animal and Plant
Protection and Regulation of International and Interprovincial
One of the fundamental differences between the federally
proposed AMP scheme and Ontario's scheme, passed in June 2005,
is that if an offender is subject to an AMP, it cannot also be
subject to a prosecution for the same alleged offence. The federal
government, at the same time as releasing the draft regulations,
released a policy framework in which it is carefully
explained when a prosecution and AMP may overlap, for example, for
continuing violations. On Day 1 of the offence, an officer may
issue an AMP, but for Day 5, the decision may be to proceed with a
A person can be given an EP Order and prosecuted for the same
violation. The payment of a penalty or entering into a settlement
agreement is not, for the purposes of any prosecution for the same
violation, an admission of guilt. Prosecution remains available to
deter serious pollution incidents and repeat offenders and will be
considered in accordance with direction provided ... [in this]
Policy. However, if a regulated person is convicted for the same
violation where an EP Order has already been issued, the court may
consider the payment of a penalty as a mitigating factor when
AMPs in Ontario apply to a small subset of operations. The 2014 report for AMPs reported a total of
$189,713.83 in penalties. By contrast, just one prosecution, such
as the prosecution of concrete batching company ML Ready
Mix Concrete Inc. and its Director, can result in fines as high
as $160,000 (plus the 25% Victim Fine Surcharge). These fines were
for six offences under the Environmental Protection Act, related to
dust and noise emissions. Of course, the state resources expended
for prosecutions are also significantly higher than for AMPs.
Ultimately, AMPs are intended to allow for a more efficient
means of deterring bad environmental actors and adds one more
option to the enforcement tool kit. It remains to be seen how the
federal government will take advantage of this new tool.
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.
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