Introduction
Administrative penalty schemes have quickly become the preferred way for governments to enforce regulatory obligations. This is now particularly true with respect to environmental obligations, whether those obligations originate from a permit, regulation, or legislation.
But are such schemes subject to constitutional protections under the Charter, including the right to be presumed innocent until proven guilty and the right to life, liberty, and security of the person? So far, the general answer from the courts has been: "no", because such administrative schemes are not, generally speaking, "criminal" offences and therefore subject to the Charter. They are administrative or civil schemes, designed to deter and control the behaviour of those regulated.
In BGIS Global Integrated Solutions Canada LP v. Canada (Attorney General), 2025 FC 1213, the Federal Court followed this judicial thinking. It upheld the constitutionality of the federal Environmental Violations Administrative Monetary Penalties Act (the "EVAMPA" or the "Act"), confirming that its absolute liability regime does not necessarily attract scrutiny from the Charter. The decision affirms that Charter protections generally do not apply to schemes imposing administrative monetary penalties ("AMPs"), continuing the judicial deference to legislative design of using AMP schemes, rather than criminal prosecutions, to enforce regulatory obligations.
Background
BGIS, a real estate management company, was issued two AMPs under the EVAMPA for halocarbon leaks from chillers at two federal buildings it managed in Winnipeg. The leaks were reported and repaired, but Environment and Climate Change Canada issued two $5,000 penalties under the now-repealed Federal Halocarbon Regulations, 2003. BGIS challenged the penalties before the Environmental Protection Tribunal of Canada (the "EPTC"). One of its arguments was that the absolute liability regime created by the EVAMPA violated ss. 7 and 11(d) of the Charter by removing the ability to rely on the defence of due diligence. Section 7 guarantees each person the right to life, liberty, and security of the person and the right not to be deprived unless in accordance with fundamental justice. Section 11(d) guarantees "[the right] to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal".
The EPTC rejected both arguments and upheld the penalties. The EPTC also found no Charter breaches: since violations under the scheme did not require a mental element, the scheme did not offend the principles of natural justice under s. 7. Additionally, protections provided under s. 11(d) of the Charter did not apply to the regime since the AMPs were "violations" and not "offences". BGIS subsequently sought judicial review.
Decision of the Federal Court
The Court denied judicial review. It found the EPTC did not err in concluding that the AMP scheme did not attract application of ss. 7 or 11(d) of the Charter.
BGIS had argued that the EVAMPA scheme engaged s. 11(d) of the Charter because it is, by its very nature, a criminal proceeding, and because the AMPs issued pursuant to the scheme were a "true penal consequence". The Court rejected both arguments.
The Court held that proceedings under the EVAMPA were not criminal in nature. While the Act serves the public purpose of environmental protection, the court reiterated that a public purpose alone does not render a proceeding criminal. It also rejected BGIS's argument that environmental protection is inherently criminal, noting that while it has been recognized as a valid criminal law purpose, that is not always the case. Instead, the Court emphasized that the EVAMPA is positioned as an alternative to the penal system, explicitly defines violations as non-offences, and directs AMP proceeds to the Environmental Damages Fund rather than general revenue. Examined in its full legislative context, the court concluded that the EVAMPA was an administrative scheme aimed at protecting the public through regulation, not penal sanction.
The Court, clearly influenced by its conclusion on the question of whether the EVAMPA scheme was "criminal by nature", also found that AMPs imposed under EVAMPA did not constitute true penal consequences. The Court noted that the penalties here were not significant, which apparently had some significance to the Court's analysis of the scheme as a whole. It found that while the AMPs may incorporate deterrence and reflect prior non-compliance, they are primarily determined by regulatory criteria rather than principles of criminal sentencing. It also held the impossibility of perfect compliance did not render the penalties disproportionate. Finally, the Court considered BGIS's argument that it faced significant stigma due to these penalties, resulting in a true penal consequence. Recognizing the limited judicial guidance on this point, the Court held there was a lack of evidence showing societal condemnation or moral blameworthiness in this case of the kind typically associated with criminal conduct. Thus, the Court found BGIS's submissions regarding reputational and financial impact in the context of competitive contracting unpersuasive.
Significance
The decision of the Federal Court continues to reflect a highly deferential approach by the courts to AMP schemes, driven by the Supreme Court of Canada's relatively formalistic approach to the question of whether an administrative penalty scheme is "criminal in nature" or imposes "true penal consequences". Where the scheme only imposes fines, the courts have yet to find that such a scheme is criminal or imposes criminal consequences. Clearly, courts remain reluctant to extend constitutional protections to administrative processes. Although no court has said as much, it is probable that courts are exercising some implicit deference to the legislative policy choice to enforce regulatory schemes administratively, rather than criminally.
And yet, there may be some cracks showing in the historical reluctance among courts to call an administrative scheme a criminal one. The Court's observation regarding the absence of any useful judicial guidance on how to assess the stigma accompanying an administrative penalty suggests that a party, with the proper record, could demonstrate that public opinion views such penalties as carrying criminal stigma and thus impose, in practice, a criminal consequence, regardless of the terminology used by the government. The Court's observation in this regard shows that the law is still in development and may present opportunities to challenge similar AMP schemes.
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