Canada: Federal Proposal To Boost Environmental Penalties And Enforcement Tools

Copyright 2009, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Environmental Law, March 2009

Canada's Environment Minister Jim Prentice introduced new legislation to the House of Commons last week directed at enhancing enforcement tools against polluters and increasing the range and severity of consequences for environmental offenders.

Bill C-16, An Act to amend certain Acts that relate to the environment and to enact provisions respecting the enforcement of certain Acts that relate to the environment, raises maximum fines under a range of environmental legislation and establishes minimum fines for breach of a number of environmental statutes. It also creates different "classes" of offenders, imposing stiffer fines on "large" corporations than "small" corporations or individuals. The proposed range of fines for first-time large corporate offenders for serious offences is C$100,000 to C$6-million. Additionally, the range of fines in all cases is doubled for repeat offenders. Monies received as fines for conviction of environmental offences will be directed to the Environmental Damages Fund for use in local environmental improvement initiatives.

Moreover, the enactment amends provisions on sentencing and requires courts to consider specified aggravating factors to ensure penalties reflect the gravity of the offence. The specified aggravating factors include extent of damage to the environment or risk of harm to human health, receipt of revenue or decreased costs as a result of the offence, attempts to conceal, and failure to mitigate or remediate the effects of the offence.

While governments often seek to raise maximum fines to enhance their environmental credentials, it is arguably the imposition of minimum fines which will have a real impact on the actual penalties imposed by courts. Further, the arbitrary line between large corporations and small corporations at above and below C$5-million in gross revenue for 12 months prior to the offence, respectively, may elicit criticism and may be difficult to implement fairly.

The bill also enhances already broad powers of investigation and provides consistent and broad personal liability on officers and directors who "directed or influenced" the corporation's policies or activities in respect of conduct that is the subject matter of the corporation's offence.

Additionally, the amendments will require courts to order corporate offenders to disclose the details of convictions to shareholders. Details of convictions of corporate offenders will also be made available to the public via a registry, which must maintain any such information for a minimum of five years.

The legislation also proposes to bring into effect a broader and more effective civil penalty regime through the enactment of the Environmental Violations Administrative Monetary Penalties Act, an Act with an objective of "supplementing" existing enforcement measures by providing an administrative monetary penalty (AMP) system for most environmental legislation. This AMP scheme gives the Governor in Council authority to make regulations for amounts payable for violations of environmental legislation. Maximum penalties for violations are set at C$5,000 for an individual and C$25,000 for any other person (presumably corporations) or a ship or a vessel. Interestingly, a proceeding under the Act for a violation precludes proceeding with a matter as an offence under environmental legislation, and vice versa. The manner in which this Act will interplay with other amended environmental legislation will be of great interest as the Act is implemented.

The bill amends the following nine pieces of environmental protection legislation with respect to inspections and sentencing:

  • The Canadian Environmental Protection Act, 1999;
  • The Canada Wildlife Act;
  • The Migratory Birds Convention Act, 1994;
  • The Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act;
  • The Antarctic Environmental Protection Act;
  • The International River Improvements Act;
  • The Canada National Parks Act;
  • The Canada National Marine Conservation Areas Act; and
  • The Saguenay-St. Lawrence Marine Park Act.

The AMP regime will be implemented for the nine statutes listed above as well as the Canada Water Act.

Bill C-16, if enacted, will provide consistency across federal environmental legislation for enforcement of environmental offences with respect to inspections and sentencing. Moreover, the enactment may increase compliance through creating transparency for corporate shareholders and the public.

The government claims it will dedicate the C$43-million commitments set out in the Budgets of 2007 and 2008 for enforcement activities, including hiring more than 100 new enforcement officers.

Click here to view Bill C-16.

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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