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