Canadian Environmental Protection Act: compliance and enforcement policy: chapter 7

Responses to alleged violations

Enforcement officers will examine every suspected violation of which they have knowledge. If, after that examination, they determine that there is insufficient evidence to prove the alleged violation or that the alleged violation did not, in fact, occur, they will take no further enforcement action. If they are able to substantiate that a violation took place and there is sufficient evidence to proceed, they will take action consistent with the criteria in this chapter, and will choose the appropriate response among the different types reviewed here.

Criteria for responses to alleged violations

Whenever an alleged violation of the Canadian Environmental Protection Act, 1999 (CEPA) is discovered, enforcement officers will apply the following factors when deciding what enforcement action to take:

• Nature of the alleged violation: This includes consideration of the seriousness of the harm or potential harm, the intent of the alleged violator, whether this is a repeated occurrence and whether there are attempts to conceal information or otherwise subvert the objectives and requirements of the act.
• Effectiveness in achieving the desired result with the violator: The desired result is compliance with the act, within the shortest possible time and with no further occurrence of violation. Factors to be considered include the violator's history of compliance with the act and, if applicable, with regulations by a provincial, territorial or aboriginal government that are deemed, by Order in Council, to be equivalent to those under CEPA, willingness to co-operate with enforcement officers, evidence of corrective action already taken, and the existence of enforcement actions under other statutes by other federal authorities or by provincial, territorial or aboriginal governments as a result of the same activity.
• Consistency in enforcement: Enforcement officers intend to achieve consistency in their responses to alleged violations. Accordingly, officers will consider how similar situations were handled when deciding what enforcement action to take.

Responses to alleged violations

The following responses are available to deal with alleged violations of the Canadian Environmental Protection Act, 1999 and its regulations: warnings, directions by enforcement officers, tickets, Ministerial orders, environmental protection compliance orders, detention orders for ships, injunctions, prosecution, environmental protection alternative measures, court orders following conviction, and civil suits by the crown to recover costs.

While each fact situation will be different in relation to alleged violations of CEPA, probably the most important factor in determining an enforcement response is the effectiveness of the response in securing compliance as quickly as possible with no recurrence of violation. Therefore, except in circumstances where prosecution will always be pursued as described later in this chapter, the enforcement officer will give first consideration to an enforcement response among warnings, directions, Ministerial orders, detention orders for ships and environmental protection compliance orders, as these do not require a court proceeding, and compliance may be restored in a shorter time frame that would be possible through a court prosecution. A ticket will also be among the measures given first consideration as an enforcement response in the circumstances described at the heading "tickets". However, a court hearing is always an option that can be elected by an accused who receives a ticket and who wishes to plead not guilty.

Nevertheless, it is important to remember that, where the severity of the environmental harm or risk of environmental harm, the factual circumstances of the alleged offence or the compliance history of the offender are such that prosecution or other court action would provide the most effective deterrent to the violator, the enforcement officer will choose a court proceeding.

Warnings

Enforcement officers may use warnings:

• when they believe that a violation of the act is continuing or has occurred
• when the degree of harm or potential harm to the environment, human life or health appears to be minimal

When deciding whether to use warnings or more severe enforcement action, enforcement officers may also consider:

• whether the individual, company or government agency has a good history of compliance with the Canadian Environmental Protection Act, 1999 and with provincial, territorial or aboriginal government regulations deemed, by Order in Council, to be equivalent to those under the federal act
• whether the individual, company or government agency has made reasonable efforts to remedy or mitigate the consequences of the alleged offence or further offences

Warnings will always be given in writing. When necessary, however, enforcement officers may initially give a warning orally. This is to be followed as soon as possible by a written warning.

The written warning will contain the following information:

• the section of the act or regulations involved
• a description of the alleged offence
• a statement that, if the alleged violator does not take necessary action, the enforcement officer will consider taking other steps

When an enforcement officer uses a warning, it brings an alleged violation to the attention of an alleged violator, in order to promote any necessary action by that person. Warnings do not have the legal force of an order. Furthermore, they are not a finding of guilt or civil liability. Warnings and the circumstances to which they refer will form part of the records of Environment Canada. In addition, warnings will be taken into account in future responses to alleged violations, and may influence the frequency of inspection.

When an alleged violator receives a warning, the individual, company or government entity may wish to provide written comments to the enforcement officer who signed the warning. The enforcement officer will take the comments into consideration and, where appropriate, will respond to the alleged violator who received the warning. The comments and any response to them will be attached to the warning. Both the comments and response will then be placed in the compliance history file of the individual, company or government entity.

Directions in the event of releases

Where there is a release of a substance in contravention of regulations under the Canadian Environmental Protection Act, 1999 or the likelihood of such a release, an enforcement officer may give directions to the person, company or government agency that owns the substance or that has or had charge, management, or control of the substance at the relevant time, or that caused or contributed to the release, to take all reasonable emergency measures:

• to prevent the release if it has not already occurred
• to remedy any dangerous condition
• to reduce any danger to the environment or human life or health that results from the release of the substance or may reasonably be expected to result from the release of the substance

As the act already imposes on individuals, companies and government agencies the obligation to take such measures, an enforcement officer will not ordinarily issue such directions unless these obligations are not being met. The directions will be given in writing, but, during the initial response to an emergency, directions may be given orally and later confirmed in writing.

Failure to comply with a direction by an enforcement officer will lead to prosecution of the individual, company or government agency for this failure. Also, in the event of failure or inability to comply with an enforcement officer's direction, the officer is empowered under the act to take the action him or herself or to hire qualified experts to take the emergency measures.

Tickets

Tickets are available for offences under CEPA where there is minimal or no threat to the environment or human life or health. Where an offence is designated as ticketable, enforcement officers will always issue a ticket, unless they have determined that, in accordance with the criteria of this policy, a warning is the appropriate response. In cases where an alleged ticketable offence continues for more than one day, enforcement officers are able to issue a ticket for every day that the alleged offence continues.

Ticketing regulations to identify which CEPA offences are punishable by ticket, the associated fine and procedures for individuals, companies, and government agencies to respond to tickets have been developed under the federal Contraventions Act. Examples of ticketable CEPA offences are the failure to provide information or a report as required by regulations made under CEPA, or the failure to provide information or documents within the stipulated time limit.

Upon being issued a ticket by a CEPA enforcement officer, the accused may, within the time limit stated on the ticket:

• plead guilty and pay the fine to the appropriate court as prescribed on the ticket without making a formal court appearance
• plead guilty with an explanation and appear in court to request a lesser fine or additional time to pay the fine
• submit a plea of not guilty, resulting in formal court proceedings

If the accused fails to choose an option within the stated time limit, he or she, the company or the government agency involved has waived the right to challenge the ticket. A conviction is then entered against the accused, and provincial or territorial authorities will take measures to collect the outstanding fine in accordance with the applicable provincial or territorial law.

Effectiveness in restoring a violator to compliance is an important criterion in determining the appropriate response to a violation. Consequently, if an enforcement officer has already issued a ticket for an alleged offence, whether it is a single ticket or several tickets to cover the number of days that an alleged offence continues, and if the same offender commits the same violation under a different fact situation, this is an indication that issuance of a ticket by the enforcement officer was not effective in restoring compliance. Under those circumstances, the enforcement officer will issue an environmental protection compliance order, or consider prosecution for the alleged offence, both of which are described later in this chapter.

Ministerial orders

The Minister of Environment may issue three types of order under the Canadian Environmental Protection Act, 1999. These are orders that:

• prohibit activities involving substances new to Canadian commerce
• compel the recall, from the marketplace, of a substance, a product containing the substance, a nutrient, a fuel or a vehicle whose emissions are regulated under CEPA
• require more information on, or testing of, substances suspected of being toxic, and to prohibit their manufacture or importation, or to limit these two activities, until expiry of the assessment period to determine the risk that they present to the environment

Only the first two Ministerial orders are for use in response to alleged violations. They are measures for prompt and immediate action to prevent unlawful manufacture, importation, distribution or sale of a substance or a product containing that substance, or to recall the substance, product, nutrient, fuel or motor vehicle from the marketplace. They may be used as responses to alleged violations in themselves or in conjunction with prosecution.

Prohibition orders involving substances new to Canadian commerce

The Minister is empowered to prohibit, in writing, any activity involving a substance new to Canadian commerce, when he or she has reasonable grounds to believe that the substance has been manufactured in or imported into Canada in violation of the act.

The prohibition will remain in effect until expiry of the period prescribed for assessing the substance.

In addition to the prohibition issued by the Minister, if the offence giving rise to the prohibition meets the criteria for prosecution as listed below, charges will be laid by an enforcement officer for the offence of illegal manufacture or importation of the substance.

Recall orders

The Minister of Environment is empowered:

• to issue orders to recall a substance or product from the marketplace, where there is a contravention of the provisions of the act or its regulations governing substances or products, including toxic substances or products containing same
• to direct those orders to manufacturers, processors, importers, distributors or retailers

The Minister has this same power where there is a contravention of the provisions of the act or its regulations governing nutrients, cleaning products, water conditioners, or fuels. In the case of nutrients, the Minister may direct the order to importers and/or manufacturers; in the case of fuels, the order could be directed to any or all of the following: a producer, processor, importer, retailer or distributor.

The recall order may direct the person named in the document to do any or all of the following:

• give public notice of any danger to the environment, human life or health
• mail this notice to
  • manufacturers, distributors or retailers of the substance or product
  • manufacturers, processors, distributors or retailers of the nutrient, cleaning product or water conditioner
  • producers, processor, importer, retailer or distributor of the fuel
  • every individual, company or government agency to whom the substance, product, nutrient or fuel is known to have been delivered or sold
• replace the item by one that does not pose a danger to the environment, human life or health
• accept the return of the item and reimburse the purchase price to the purchaser
• undertake any other measures appropriate for the protection of the environment or human life or health

The Ministerial order will be issued to ensure removal of the substance or other item listed above from the marketplace. Further, if the alleged offence giving rise to the order meets the criteria for prosecution as listed below, charges for the alleged offence will be laid by an enforcement officer.

Detention orders for ships

Enforcement officers have authority under CEPA to issue an order directing detention of a ship, where the officer has reasonable grounds to believe that:

• the owner or master of a ship has committed an offence under the act
• the ship was used in connection with the commission of the violation

An example of those reasonable grounds could be where a ship has been used to import into Canada a substance that is new to Canadian commerce, and the Minister of Environment has not received notification of the import of the substance. In this example, in view of the failure to notify, the Minister has not assessed the new substance to determine whether or not it is toxic within the meaning of CEPA or whether the Minister should impose a condition related to its import, use or required reporting in the case of any significant new activity involving the substance. Another example could be an import of a hazardous waste that violates the act or its regulations. Another example could be a ship that is seeking to dispose of waste at sea and is about to do so, either in the absence of an ocean disposal permit or in violation of the conditions of a permit which has been granted under CEPA.

Before issuing a detention order for a ship, the enforcement officer will consider whether or not:

• there is a risk of flight by the ship
• there is a risk of loss or destruction of evidence
• off-loading of the cargo that is suspected to be in violation of the act would require detention of the ship for a period of days

Also, before issuing such a detention order, the enforcement officer will ensure that the action is in accordance with international and Canadian maritime law.

Environmental protection compliance orders

An enforcement officer is empowered to issue an environmental protection compliance order (EPCO) to:

• prevent a violation from occurring
• stop or correct one that is occurring or continuing over a period of time
• correct an omission where conduct is required by CEPA or one of its regulations, and that conduct is not occurring

It is possible to issue compliance orders to deal with any offence under CEPA. They are a means to secure an alleged violator's return to compliance, without use of the court system. Examples of instances where an enforcement officer may use an environmental protection compliance order are:

1. previously, the enforcement officer had issued the offender a warning or ticket for the particular offence, but the offender did not return to compliance
2. in the case of a previous release of a substance in contravention of CEPA regulations, the officer had issued a direction, but the circumstances that resulted in the earlier release continue and a subsequent illegal release is likely
3. required conduct is not being carried out; for instance, a system required, by regulation, for the continuous or automatic monitoring of emissions is turned off
4. improper containers required for storage of a toxic substance are being used or proper containers are being used, but they are not labelled as required
5. an individual, company or government agency that was required to prepare and implement a pollution prevention plan or an environmental emergency plan failed to do so

The environmental protection compliance order will direct the alleged violator to take the measures required to return to compliance. The order imposes no financial or other penalty. As noted under the heading "prosecutions", failure to comply with the EPCO is an offence for which prosecution will be undertaken.

Injunctions

Under the Canadian Environmental Protection Act, 1999, the Minister has the authority to seek an injunction, in order to stop or prevent a violation of the legislation. Where a violation has already occurred, in addition to seeking an injunction, and where appropriate under this compliance and enforcement policy, the Minister will pursue prosecution or civil action for recovery of the costs of preventive or corrective measures taken by the Minister.

Enforcement officers will carry out inspections to ensure that the individual, company or government agency cited in the injunction is complying with the terms of the injunction. If the individual, firm or government agency does not comply with the injunction, the Minister will return to the court to seek:

• a contempt of court ruling
• instruction by the court for the individual, company or government agency to comply within the stated time limit with the injunction
• any additional penalty, such as a fine or imprisonment, that the court may see fit to impose in its contempt of court ruling

Prosecution

Enforcement officers will lay a charge for every alleged violation of the Canadian Environmental Protection Act, 1999, except where, in accordance with this policy, they determine that one of the following responses is sufficient and appropriate:

• a warning
• a ticket under the ticketing regulations of the federal Contraventions Act
• a direction by an enforcement officer
• an order by the Minister of Environment prohibiting activities involving a substance new to Canadian commerce or a recall order by the Minister; or
• an environmental protection compliance order

Prosecution will always be pursued when:

• there is death of or bodily harm to a person
• there is serious harm or risk to the environment, human life or health
• the alleged violator knowingly provided false or misleading information, or made a false or misleading test of a substance in purported compliance with the act
• the alleged violator obstructed the enforcement officer or CEPA analyst in the carrying out of his or her duties and responsibilities under the act
• the alleged violator interfered with a substance seized by an enforcement officer under the act
• the alleged violator concealed or attempted to conceal information after the offence occurred
• the alleged violator did not take all reasonable measures to comply with:
  
  • a direction by an enforcement officer
  • an order by the Minister prohibiting activities involving substances new to Canadian commerce, manufactured in or imported into Canada in contravention of the act
  • a recall order imposed by the Minister
  • an order by the Minister to the individual, company or government agency that provided information on a substance that the Minister of Environment and the Minister of Health suspect is toxic
    • requiring additional information on or testing of the substance
    • prohibiting manufacture or importation of the substance, until expiry of the assessment period
  • an environmental protection compliance order
  • environmental protection alternative measures

The act stipulates that certain offences are to be prosecuted by summary conviction and others, by way of indictment. Other offences under the act may be prosecuted by either means. In cases where prosecution may take place by either means, it is up to the Crown prosecutor to decide whether to prosecute by way of summary conviction or by way of indictment.

Environmental protection alternative measures

Environmental protection alternative measures are similar to provisions in the Criminal Code and in the Young Offenders Act, which allow for a negotiated return to compliance without a court trial. Alternative measures under those other two federal acts are available for individuals but not offenders which are corporations or government bodies. CEPA provides for alternative measures that can be applied whether the violator is a corporation, government body or individual.

The choice to use environmental protection alternative measures in a particular case is made by the Attorney General of Canada or an agent of the Attorney General. In practical terms, that means a Crown prosecutor authorizes the use of alternative measures, after consultation with the Minister of Environment who will be represented in such cases by an enforcement officer.

Alternative measures can be used for most offences under CEPA, except for violations involving:

• injury or death or risk of injury or death
• a disaster leading to loss of use of the environment
• knowingly providing false or misleading information to the Minister of Environment, an enforcement officer or a CEPA analyst
• manufacture, import or use of substances new to Canadian commerce, before the Minister has been notified of them and before they have been assessed to determine whether or not they are toxic or capable of becoming toxic
• harassment, discipline, demotion, suspension or dismissal by an employer of an employee who reported a CEPA violation or who refused to carry out an action that would violate CEPA
• failure to comply with a recall imposed by the Minister
• failure to give all reasonable assistance to an enforcement officer or CEPA analyst
• obstruction of an enforcement officer or CEPA analyst in their conduct of their duties
• failure to comply with the conditions of a negotiated environmental protection alternative measures program

There are pre-requisites to participation by an offender in an environmental protection alternative measures program. First, a charge for the alleged offence must be laid. Then, the Crown prosecutor, after consulting with the enforcement officer responsible for the case, must be satisfied that:

• protection of the environment and human life and health will be satisfied by the use of alternative measures
• the accused's compliance history makes it likely that the accused will abide by the negotiated alternative measures and return to compliance with CEPA

In addition, the Crown prosecutor will examine whether or not the accused took any corrective action after the violation or preventive measures to ensure that the alleged offence does not occur again, and whether or not the accused was co-operative or attempted to conceal information. The prosecutor will rely upon the enforcement officer to recommend whether or not the two criteria related to protection of the environment and human life or health and the accused's compliance history are met, and to provide evidence of the degree of co-operation and the extent of corrective or preventive measures taken by the violator following commission of the alleged offence.

The accused is not required to plead guilty to the violation, but must, nevertheless, accept responsibility for the offence. The accused and the Crown prosecutor have only 180 days from the date of the first disclosure of evidence by the Crown to the accused, in which to negotiate environmental protection alternative measures.

If an accused meets all the pre-requisites and agrees to negotiate, but the Crown prosecutor and the accused cannot successfully negotiate alternative measures within the 180 days, the court prosecution will proceed.

If an environmental protection alternative measures agreement is successfully negotiated, it is filed with the court and is a public document. The agreement must also appear in the CEPA registry that the Minister of Environment is required to create under s.12 of the act.

Upon fulfillment of the conditions of the negotiated alternative measures, the court will dismiss the charges against the accused. However, if the accused fails to comply with the negotiated environment protection alternative measures, this is an offence under CEPA, and, as noted under the heading "prosecutions", prosecution for the failure to comply will be undertaken.

Penalties and court orders upon conviction

Upon conviction of an offender for a violation of the Canadian Environmental Protection Act, 1999, enforcement officials will, on behalf of the Minister, recommend that Crown prosecutors request penalties that are proportionate to the nature and gravity of the offence. Penalties provided under the act include fines or imprisonment or both, court orders to accompany a fine or imprisonment, and court orders governing conditional discharge of the offender.

Criteria to guide the courts when imposing penalties or court orders are included in CEPA. The decision to provide sentencing guidelines in the act was based on the recommendations of the 1987 report of the Canadian sentencing commission, and is consistent with case law, such as R. vs United Keno Mines. Nevertheless, this is guidance only. The courts are not compelled by the act to follow the CEPA sentencing principles.

Following a conviction, it is a regular occurrence for Crown prosecutors, after consultation with enforcement officers, to recommend a sentence in each case. When making a recommendation to Crown prosecutors with respect to sentencing, enforcement officers will apply the criteria found in CEPA. Examples of those criteria are:

• the harm or risk of harm caused by the commission of the offence
• an estimate of the total costs to remedy or reduce the negative effect of any damage caused by commission of the offence
• whether or not any corrective or preventive action has been taken or proposed by the offender
• whether the offence was committed intentionally, recklessly or inadvertently
• whether there was negligence or a lack of concern on the part of the offender
• what profits or benefits the offender earned as a result of the commission of the offence
• the offender's compliance history
• in the case of an aboriginal offender, any particular circumstances of the aboriginal offender

In addition to considering the criteria for sentencing found in CEPA, enforcement officers will recommend a penalty and/or court order that will, in their view, be effective in deterring others from committing the same or other violations of the act.

Use of court orders upon conviction

Upon conviction of an offender, the enforcement officer responsible for the case may request that, in their sentence, courts include one or more of the orders provided under the statute. The following list is not exhaustive but gives some examples. Orders may be requested to:

1. prohibit the offender from doing any activity that may result in continuation or repetition of the offence
2. direct the offender to correct resulting harm to the environment or to take measures to avoid potential harm
3. require the offender to prepare and implement a pollution prevention plan or environmental emergency plan
4. direct the offender to carry out environmental effects monitoring or to pay the costs of such monitoring
5. require the offender to perform community service
6. direct that the offender pay money to environmental, health or other groups that work in the community where the offence was committed
7. require the offender to pay funds to an educational institution for scholarships for students enrolled in environmental studies

The type of order requested by the enforcement officer will depend on the violation.

Enforcement officers will request orders of type a), when there is likelihood of the offence being repeated by the offender. Type b) court orders will be requested when the damage to the environment is correctable or when the individual, company or government agency convicted of the offence needs to take measures to avoid future harm.

Type c) orders should lead to prevention of further pollution, or implementation of environmental emergency plans when there are sudden and controlled but illegal releases. Enforcement officers will request type d) orders in instances where the offence may have caused serious, negative environmental effects, and it is necessary to monitor what is happening in the receiving environment to determine whether or not it returns to health and, if it does, how long that process takes.

The type e) order directing the offender to perform community service will be requested by enforcement officials when the harm affected a community at large.

As far as type f) orders are concerned, enforcement officers may request payment of funds to further the work of community environmental, health or other groups, in order to increase awareness of the need to protect the environment or to increase knowledge of wildlife or of the need to protect its habitat. Type g) orders focus on the future contributions that students educated on environmental matters may make to the protection of the environment or the prevention of pollution.

Enforcement officials may request more than one order where appropriate. For instance, if a substance was new to Canadian commerce and manufactured in contravention of the act, and if releases and wastes during the manufacturing process led to environmental damage, enforcement officials may, in addition to any fine or imprisonment imposed, request that the court issue a type a) order directing that the offender cease manufacturing activities that contravene the act until after the substance has been assessed as required under the statute, as well as a type b) order directing the offender to correct the resulting environmental damage.

Failure to comply with a court order issued under the act is a violation of the statute. Enforcement officials have three options when choosing a response to this violation: prosecution, civil suit for recovery of monies, and contempt of court proceedings.

In most instances, where a court order is not complied with, enforcement officials will lay charges. A separate offence is committed for each day that the failure to comply continues. In addition, the option of civil suit or contempt of court proceedings may be appropriate.

A civil suit can be used where the court order imposes a financial penalty which the offender fails to pay. Examples are where the offender is directed to compensate the Minister for the cost of preventive or corrective measures that the Minister was obliged to take as a result of the offence, or where the offender is directed to pay monies to an educational institution for scholarships and fails to do so.

Contempt of court is a procedure by which the courts enforce compliance with their orders. Contempt of court proceedings may be appropriate where failure to comply with the order imposed on the offender would lead to continuing risk or harm to the environment, human life or health. Examples are where the court directs that the offender:

• refrain from any activity that may result in the continuation or repetition of the violation
• take specified action to correct harm to the environment, or to avoid future harm

Civil suit by the crown to recover costs

The Canadian Environmental Protection Act, 1999 empowers the crown to recover costs by civil suit when:

1. an enforcement officer was required to carry out clean-up or hire qualified experts to do so, because of the unauthorized release of a regulated substance into the environment that resulted in jeopardy to public safety or a danger to the environment, human life or health
2. an enforcement officer was obliged to take measures to prevent the unauthorized release of a regulated substance
3. an enforcement officer was obliged to take measures where any person fails to comply with an environmental protection compliance order
4. the Minister incurs publication costs when he or she publishes the facts related to an offence, because the offender was required by court order to publish these facts, and did not comply with the order
5. the Minister is owed compensation, because the offender was required by court order to pay part or all of the costs for preventive or corrective measures (including clean-up) taken by the Minister as a result of the offence, and did not comply with the order

It is possible to recover costs in cases a), b) and c) when:

• there was no prosecution
• there was a prosecution, but an order for recovery of such costs was not obtained
• prosecution did not result in a conviction

The defendant would be the individual, company or government agency that owned or had charge of a substance immediately before its initial release into the environment, or that caused or contributed to that release.

In cases d) and e), the offender is clearly identifiable, and the matter of an offence has been proven. These costs arise from court orders upon conviction for a violation of the act.

Enforcement officers will attempt to obtain recovery of the costs through negotiation. Failing an out of court settlement, the crown will initiate or proceed with civil action under the legislation.