On April 9, 2016, almost six years after passing legislation to allow for "administrative monetary penalty orders" ("AMP orders") as environmental enforcement tools, the federal government has released draft regulations for comment. The commenting period is open for 60 days.

AMPs, 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 AMP:

  • Antarctic Environmental Protection Act;
  • Canada Wildlife Act;
  • Canadian Environmental Protection Act, 1999, Parts 7 and 9 only;
  • International River Improvements Act;
  • Migratory Birds Convention Act, 1994; and
  • Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.

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 prosecution, instead.

Ontario's Compliance Policy, by contrast, states the following:

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 imposing sentence.

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.

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