The enforcement bill, Bill C-16, would strengthen environmental enforcement to make polluters more accountable. The amendments are designed to contribute to the three main goals: deterrence of environmental offences, public denunciation of environmental offences, and restoration of environmental harm resulting from unlawful activity. These main goals are achieved through amendments to the fines schemes, to the sentencing provisions, and to the enforcement tools.
The bill proposes to amend six Environment Canada-administered statutes, including the Canadian Environmental Protection Act, or CEPA, and the Migratory Birds Convention Act. It also amends three Parks Canada-administered statutes, including the Canada National Parks Act.
The bill also introduces an entirely new statute, the Environmental Violations Administrative Monetary Penalties Act, which I will discuss towards the end of my presentation.
With respect to the fines, to best understand what the bill proposes, it is necessary to first summarize the existing fines schemes under the statutes it amends. Currently, all offenders under these acts are liable to a maximum fine and/or maximum jail term. The highest current maximum fines are under CEPA, the Antarctic Environmental Protection Act, and the Migratory Birds Convention Act, at $1 million on indictment or $300,000 on summary conviction.
Other acts have lower maximum fines. For example, the International River Improvements Act currently provides for maximum fines of $500 on summary conviction and $5,000 on indictment.
Fines imposed by courts tend to be much lower than the maximum fines. The bill attempts to address this by introducing minimum fines for the most serious offences and increasing the maximum fines, by introducing higher fines for corporate offenders than for individual offenders, and by ensuring all statutes authorize the doubling of fines for second and subsequent offences.
This slide shows the fines scheme proposed by the bill. For the minimum fines for the most serious offences—by that term we mean those that are involved in direct harm or risk of harm to the environment or obstruction of authority—the proposed fines scheme includes different fines for individuals, corporations, and small-revenue corporations. These distinctions are meant to reflect the respective financial capacity of each type of offender and to ensure fines achieve their goals of deterrence and denunciation regardless of the wealth of the offender.
The proposed fines scheme also changes maximum fines from the existing high of $1 million for all offenders to $1 million for individuals, $4 million for small-revenue corporations, and $6 million for corporations. Finally, the proposed scheme provides double fine ranges for second and subsequent offenders.
Importantly, the bill authorizes the court to consider substantially similar offences under other federal or provincial environmental or wildlife laws when determining whether an offender is a second or subsequent offender.
The bill adds a provision to each statute directing that the fines collected under the statute are to be credited to the environmental damages fund to ensure they can contribute to environmental restoration goals. Currently, most funds are generally paid to the Receiver General, where they are not necessarily available for restoring environmental damage resulting from offences. The environmental damages fund, which was created in 1995, makes compensation received as a result of court awards, settlements, and voluntary payments available for rehabilitation or restoration projects. Money in the fund is to be used, where possible, for projects in the area where the harm occurred. It may also be used for research and education related to protecting and restoring the environment.
The bill adds a purpose clause to the sentencing provisions of the statutes it amends, which sets out the fundamental purposes of deterrence, denunciation, and restoration of the harmed environment. The bill also emphasizes the importance of accounting for aggravating factors when determining appropriate penalties. It adds to each statute the principle that the amount of the fine should be increased to account for every aggravating factor associated with the offence and reflect the gravity of each of those factors. It adds a list of specific aggravating factors that should be taken into account, including that the offence caused damage to the environment.
The bill ensures that when considering the gravity of aggravating factors, such as damage to the environment, the court takes into account damage to both use and non-uses of the environment. Use value and non-use values are terms of environmental economics. Their inclusion in these statutes will ensure that the full value of the environment is considered by sentencing judges.
Use values include the value derived from the direct use of the environment, such as the use of water for drinking, as well as the value derived from indirect use of the environment, such as the value of a healthy river for recreational fishing. It also includes option value, the value of the environment for a future use.
Non-use value includes the environment's existence value, the value received from knowing that a resource, a good, or a service exists, and its bequest value, the value received from ensuring that a resource, good, or service will be available to future generations.
The bill contributes to the objective of deterrence by increasing access to information about convictions. It introduces a requirement to each act for the minister to establish a publicly accessible registry of corporate convictions. This would be an Internet-based registry, housed on Environment Canada's enforcement website.
The bill also adds a provision to each statute obliging the court to order corporate offenders to notify their shareholders of the facts relating to a commission of offence and the details of the punishment imposed. This obligation is new to each statute. Previously, courts were authorized under some statutes to order offenders to publish the details of the conviction. The bill retains that discretionary authority, while at the same time adding this new mandatory order. The obligation recognizes the deterrent effect that public disclosure has on corporate behaviour. Contravention of such an order will be considered an offence for which the offenders are liable to the highest fine ranges.
Bill C-16 also proposes to add a provision to each statute, obliging the court to order an offender to pay an additional fine equal to an estimated value of any benefit, advantage, or property gained as a result of the commission of the offence. The bill also introduces explicit authority for the courts to suspend or cancel a licence, or other authorizations issued to offenders under the statute contravened, and for the courts to prohibit offenders from applying for a new licence or permit for an amount of time.
Most of the statutes amended by Bill C-16 already authorize the court to make a number of orders upon sentencing an offender. These range from ordering the offender to undertake restoration work to compensating the government for remedial work. As these provisions were added over time, the bill ensures that each statute has a comparable suite of authorities that are relevant to each one.
Bill C-16 makes amendments to the enforcement tool provisions in the statutes as well. It adds an authority for enforcement officers to issue compliance orders to several statutes. The compliance orders already exist under CEPA. By using them, enforcement officers can cause a person to cease an illegal activity or correct a contravention without having to seek an injunction or initiate a prosecution. Those formal court procedures involve specific steps and take time before remedies can be effected. As such, they're not ideal for addressing an offence that is causing or will cause immediate harm to the environment. However, a compliance order can be issued without delay. Persons who are issued a compliance order can apply to the chief review officer, an administrative decision-maker established under CEPA, to have the order reviewed. As such, fairness is ensured while enabling enforcement officers to have access to a speedy remedy for situations where immediate action is deemed necessary.
Bill C-16 further strengthens the enforcement tool by adding authority to several acts for the minister to designate analysts. Analysts are scientific or technical experts who may accompany enforcement officers to carry out specific inspection activities, including taking samples. They already operate under some statutes, including CEPA, and have been very useful. The bill also extends the limitation period on instituting proceedings by way of summary conviction from two to five years and changes the day on which this period begins, from the day on which the minister becomes aware of the offence to the day on which the offence occurs.
Finally, the bill also gives enforcement officers and analysts operating under each of the acts the same level of immunity from personal liability that is already afforded to marine safety officers, pollution response officers, and inspectors operating under the Canada Shipping Act, 2001. It ensures that enforcement officers and analysts can perform their duties in good faith, without fear of civil suits.
As I mentioned at the beginning of my presentation, the bill also creates the Environmental Violations Administrative Monetary Penalties Act. The new act would set out the necessary framework to establish a system of administrative monetary penalties that are applicable to other statutes. The administrative monetary penalties are modest financial penalties that are limited to $5,000 for an individual and $25,000 for a corporation and are meant to provide a quick and more efficient response to the less serious offences than prosecution provides.
Administrative monetary penalties may be imposed on persons or ships by enforcement officers who have reasonable grounds to believe that the person or ship has committed an offence. Persons or ships subject to an administrative monetary penalty may pay the penalty outright or contest it administratively. The bill authorizes the chief review officer appointed under CEPA to hear appeals of administrative monetary penalties.
This ends my formal presentation, but I'd like to draw the attention of committee members to two additional documents that we've provided. One is a general overview of the bill that shows the nature of the amendments, the statutes under which it applies, and the pages and clauses of those statutes. The second one is a table that summarizes through an easy overview all the amendments that are made, where they're made, and where they already exist in the statute.