Law:Environmental Violations Administrative Monetary Penalties Act

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S.c. 2009, c. 14, s. 126

Assented to 2009-06-18

An Act to establish a system of administrative monetary penalties for the enforcement of the Antarctic Environmental Protection Act, the Canada National Marine Conservation Areas Act, the Canada National Parks Act, the Canada Water Act, the Canada Wildlife Act, the Canadian Environmental Protection Act, 1999, the International River Improvements Act, the Migratory Birds Convention Act, 1994, the Saguenay-St. Lawrence Marine Park Act and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act

(Enacted by section 126 of chapter 14 of the Statutes of Canada, 2009, in force December 10, 2010, see Si/2010-91.)

Contents

Short Title

Short title

1. This Act may be cited as the Environmental Violations Administrative Monetary Penalties Act.


Interpretation

Definitions

2. The following definitions apply in this Act.

“Chief Review Officer”

« réviseur-chef »

“Chief Review Officer” means the review officer appointed as Chief Review Officer under subsection 244(1) of the Canadian Environmental Protection Act, 1999 and includes any review officer designated under subsection 244(3) of that Act to perform the functions of the Chief Review Officer.

“Environmental Act”

« loi environnementale »

“Environmental Act” means the Antarctic Environmental Protection Act, the Canada National Marine Conservation Areas Act, the Canada National Parks Act, the Canada Water Act, the Canada Wildlife Act, the Canadian Environmental Protection Act, 1999, the International River Improvements Act, the Migratory Birds Convention Act, 1994, the Saguenay-St. Lawrence Marine Park Act or the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.

“Minister”

« ministre »

“Minister” means

(a) with respect to violations that relate to the Antarctic Environmental Protection Act, the Canada Water Act, the Canada Wildlife Act, the Canadian Environmental Protection Act, 1999, the International River Improvements Act, the Migratory Birds Convention Act, 1994 or the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, the Minister of the Environment; and

(b) with respect to violations that relate to the Canada National Marine Conservation Areas Act, the Canada National Parks Act or the Saguenay-St. Lawrence Marine Park Act, the Minister responsible for the Parks Canada Agency.

“penalty”

class="Marginal« pénalité »

“penalty” means an administrative monetary penalty imposed under this Act for a violation.

“prescribed”

Version anglaise seulement“prescribed” means prescribed by regulation.

“review officer”

« réviseur »

“review officer” means a person appointed as a review officer under the Canadian Environmental Protection Act, 1999.


Purpose Of Act

Purpose of Act

3. The purpose of this Act is to establish, as an alternative to the existing penal system and as a supplement to existing enforcement measures, a fair and efficient administrative monetary penalty system for the enforcement of the Environmental Acts.


Her Majesty

Binding on Her Majesty

4. This Act is binding on Her Majesty in right of Canada or a province.


Regulations

Regulations

5. (1) The Governor in Council may make regulations

(a) designating as a violation that may be proceeded with in accordance with this Act

(i) the contravention of any specified provision of an Environmental Act or of any of its regulations,

(ii) the contravention of any order or direction, or of any order or direction of any specified class of orders or directions, made under any provision of an Environmental Act or of any of its regulations,

(iii) the failure to comply with any obligation, or with any obligation of any specified class of obligations, arising from an Environmental Act or any of its regulations, or

(iv) the failure to comply with any condition of a permit, licence or other authorization, or any condition of any specified class of conditions of permits, licences or other authorizations, issued under an Environmental Act or any of its regulations;

(b) respecting the determination of, or the method of determining, the amount payable as the penalty for each violation, penalties which may be different for individuals and other persons, and for ships and vessels;

(c) respecting the service of documents required or authorized under this Act, including the manner and proof of service and the circumstances under which documents are deemed to be served;

(d) respecting who can request a review under this Act on behalf of a ship or vessel in relation to an alleged violation by the ship or vessel;

(e) prescribing anything that by this Act is to be prescribed; and

(f) generally, for carrying out the purposes and provisions of this Act.

Restriction

(2) Only contraventions and failures to comply that are offences under an Environmental Act may be designated under paragraph (1)(a).

Restriction — Canadian Environmental Protection Act, 1999

(3) With respect to the Canadian Environmental Protection Act, 1999, only a contravention or a failure to comply arising out of any provision of Part 7 and 9 or out of any provision of any regulation made under either of those Parts, may be designated under paragraph (1)(a).

Restriction — amount of penalty

(4) The amount that may be determined under any regulations made under paragraph (1)(b) as the penalty for a violation may not be more than $5,000, in the case of an individual, and $25,000, in the case of any other person or a ship or a vessel.


MINISTER’S POWERS

Powers regarding notices of violation

6. The Minister may

(a) establish the form of notices of violation;

(b) designate persons, or classes of persons, who are authorized to issue notices of violation; and

(c) establish, in respect of each violation, a short-form description to be used in notices of violation.


Commission Of Violations

Commission

7. Every person, ship or vessel that contravenes or fails to comply with a provision, order, direction, obligation or condition designated by regulations made under paragraph 5(1)(a) commits a violation and is liable to an administrative monetary penalty of an amount to be determined in accordance with the regulations.

Liability of directors, officers, etc., of corporations

8. (1) If a corporation commits a violation, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to an administrative monetary penalty of an amount to be determined in accordance with the regulations, whether or not the corporation has been proceeded against in accordance with this Act.

Liability of directors and officers of corporate owners of ships and vessels

(2) If a ship or vessel commits a violation, every director or officer of a corporation that is an owner or an operator of the ship or vessel who directed or influenced the corporation’s policies or activities in respect of conduct that is the subject matter of the violation is a party to the violation and is liable to an administrative monetary penalty of an amount to be determined in accordance with the regulations, whether or not the ship or vessel has been proceeded against in accordance with this Act.

Liability of owners, operators, masters and chief engineers of ships and vessels

(3) If a ship or vessel commits a violation and the owner, operator, master or chief engineer of the ship or vessel directed, authorized, assented to, acquiesced in or participated in the commission of the violation, the owner, operator, master or chief engineer, as the case may be, is a party to the violation and is liable to an administrative monetary penalty of an amount to be determined in accordance with the regulations, whether or not the ship or vessel has been proceeded against in accordance with this Act.

Proof of violation — persons

9. (1) In any proceedings under this Act against a person in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee or agent or mandatary of the person, whether or not the agent or mandatary has been proceeded against in accordance with this Act.

Proof of violation — masters of ships

(2) In any proceedings under this Act against the master of a ship or vessel for a violation, it is sufficient proof of the violation to establish that it was committed by a crew member or other person on board the ship or vessel, whether or not the crew member or other person has been proceeded against in accordance with this Act.

Proof of offence — pilots

(3) In any proceedings under this Act against the pilot in command of an aircraft for a violation, it is sufficient proof of the violation to establish that it was committed by a crew member or other person on board the aircraft, whether or not the crew member or other person has been proceeded against in accordance with this Act.

Issuance and service of notice of violation

10. (1) If a person designated under paragraph 6(b) believes on reasonable grounds that a person, ship or vessel has committed a violation, the designated person may issue a notice of violation and shall cause it to be served on the person, ship or vessel according to the Regulations.

Contents

(2) The notice of violation must

(a) name the person, ship or vessel that is believed to have committed the violation;

(b) set out the relevant facts surrounding the violation;

(c) set out the penalty for the violation;

(d) inform the person, ship or vessel of their right to request a review with respect to the alleged violation or penalty, and of the period within which that right must be exercised;

(e) inform the person, ship or vessel of the manner of paying the penalty set out in the notice; and

(f) inform the person, ship or vessel that, if they do not pay the penalty or exercise their rights referred to in paragraph (d), they will be considered to have committed the violation and that they are liable for the penalty set out in the notice.


Rules About Violations

Certain defences not available

11. (1) A person, ship or vessel named in a notice of violation does not have a defence by reason that the person or, in the case of a ship or vessel, its owner, operator, master or chief engineer

(a) exercised due diligence to prevent the violation; or

(b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person, ship or vessel.

Common law principles

(2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under an Environmental Act applies in respect of a violation to the extent that it is not inconsistent with this Act.

Continuing violation

12. A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.

Violation or offence

13. (1) Proceeding with any act or omission as a violation under this Act precludes proceeding with it as an offence under an Environmental Act, and proceeding with it as an offence under an Environmental Act precludes proceeding with it as a violation under this Act.

Violations not offences

(2) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.

Limitation period

14. No notice of violation in respect of a violation may be issued more than two years after the day on which the subject matter of the violation arises.


Reviews

Right to request review

15. A person, ship or vessel that is served with a notice of violation may, within 30 days after the day on which the notice is served, or within any longer period that the Chief Review Officer allows, make a request to the Chief Review Officer for a review of the penalty or the facts of the alleged violation, or both.

Variation or cancellation of notice of violation

16. At any time before a request for a review in respect of a notice of violation is received by the Chief Review Officer, a person designated under paragraph 6(b) may cancel the notice of violation or correct an error in it.

Review

17. On receipt of a request made under section 15, the Chief Review Officer shall conduct the review or cause the review to be conducted by a review officer or by a panel of three review officers assigned by the Chief Review Officer. The Chief Review Officer may be a member of that panel.

Right to appear

18. The person, ship or vessel that requests the review and the Minister may appear in person or may be represented by counsel or by any other representative.

Witnesses

19. (1) The review officer or panel conducting the review may summon any person to appear as a witness and may order the witness to

(a) give evidence orally or in writing; and

(b) produce any documents and things that the review officer or panel considers necessary for the purpose of the review.

Enforcement of summonses and orders

(2) Any summons issued or order made under subsection (1) may be made a summons or an order of the Federal Court or of the superior court of a province and is enforceable in the same manner as a summons or an order of that court.

Procedure

(3) To make a summons issued or an order made under subsection (1) a summons or an order of the Federal Court or of the superior court of a province, the usual practice and procedure of the court in such matters may be followed, or a certified copy of the summons or order may be filed with the court’s registrar and the summons or order then becomes a summons or an order of that court.

Fees for witnesses

(4) A witness who is served with a summons is entitled to receive the fees and allowances to which persons who are summoned to appear as witnesses before the Federal Court are entitled.

Decision

20. (1) After giving the person, ship or vessel that requested the review and the Minister reasonable notice orally or in writing of a hearing and allowing a reasonable opportunity in the circumstances for the person, ship or vessel and the Minister to make oral representations, the review officer or panel conducting the review shall determine whether the person, ship or vessel committed a violation.

Burden

(2) The Minister has the burden of establishing, on a balance of probabilities, that the person, ship or vessel committed the violation.

Correction of penalty

(3) If the review officer or panel determines that the penalty for the violation was not determined in accordance with the regulations, the review officer or panel shall correct the amount of the penalty.

Service of copy and reasons

21. The review officer or panel shall render their determination in writing within 30 days after the day on which the review is completed and, without delay, provide the Minister and the person, ship or vessel to which the determination relates with a copy of the determination and reasons.

Responsibility

22. If the review officer or panel determines that a person, ship or vessel has committed a violation, the person, ship or vessel is liable for the amount of the penalty as set out in the decision.

Determination is final

23. A determination made under section 21 is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.

Rules

24. The Chief Review Officer may make rules

(a) to govern the practice and procedure in respect of reviews under this Act;

(b) generally, to set out the work of review officers in respect of reviews under this Act; and

(c) to prevent trade secrets and information described in section 20 of the Access to Information Act from being disclosed or made public as a result of their being used as evidence in a review under this Act, including rules to provide for hearings or parts of hearings to be held in public or in private.


Responsibility

Payment

25. If a person, ship or vessel pays the penalty set out in a notice of violation, the person, ship or vessel is considered to have committed the violation and proceedings in respect of it are ended.

Failure to act

26. A person, ship or vessel that neither pays a penalty imposed under this Act nor requests a review in the prescribed time is considered to have committed the violation and is liable for the penalty.


Recovery Of Penalties

Debts to Her Majesty

27. (1) A penalty constitutes a debt due to Her Majesty in right of Canada and may be recovered in the Federal Court or any other court of competent jurisdiction.

Limitation period

(2) No proceedings to recover the debt may be instituted more than five years after the day on which the debt becomes payable.

Application of fines

(3) All penalties received by the Receiver General in respect of the commission of a violation are to be credited to the Environmental Damages Fund, an account in the accounts of Canada, and used for purposes related to protecting, conserving or restoring the environment or for administering that Fund.

Certificate

28. (1) The Minister may issue a certificate certifying the unpaid amount of any debt referred to in subsection 27(1).

Registration in Federal Court

(2) Registration in the Federal Court or in any other court of competent jurisdiction of a certificate issued under subsection (1) has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.


General

Admissibility of documents

29. In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 10(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.


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