II. Background: Administrative Monetary Penalties in the Context of Environmental Legislation

This section of the document offers background information about the purpose of and rationale for the new AMP system. The following section sets out the specific implementation details. 

(a) What are AMPs? What is the rationale behind an AMP system?

Legislation is an expression of public priorities, intended to achieve important objectives. The failure to comply with a statute or regulations compromises those objectives. Non-compliance must, therefore, be addressed to ensure that important societal, economic and environmental objectives are met. Stated at a broad level, the objective of federal environmental legislation is to protect the environment, including biodiversity and wildlife, from harm, loss, and degradation.

Failures to comply with legislative requirements must be addressed, but not all failures to comply with legislation – what we also refer to as violations – are similar in nature. Accordingly, it is important to have a range of enforcement responses. 

AMPs are one way of responding to a violation. AMPs are sanctions issued in the form of a monetary penalty. Most AMPs are issued directly by a government department to the violator using a simple form that sets out the violation in respect of which the AMP is issued, the amount of the penalty, and the options for payment. We anticipate similar features on our AMP notices.^[4]

An AMP is designed to ensure compliance with legislation and can address a range of compliance issues: some relatively minor, and some more severe. An AMP takes away the financial incentives of rule-breaking and thereby removes any financial benefit, advantage, or gain a person or corporation achieved by committing a violation. It helps ensure future compliance and may discourage others from violating legislation.

In the environmental context, an AMP system responds to a gap in existing responses available when someone has violated a provision of environmental legislation. For some violations, enforcement officers may issue a written warning, a direction, an Environmental Protection Compliance Order (EPCO), or they may proceed with a prosecution. In certain circumstances, none of these options would be an appropriate response to bring the violator into compliance. Prosecution might be too heavy-handed, while a written warning might not do enough to encourage compliance with the legislation. An EPCO, which is premised on ordering specific actions, might not be appropriate in some circumstances, and the statutory pre-requisites might not exist, depending on the nature and circumstances of the violation. The possibility of issuing an AMP would fill this gap in enforcement options. 

(b) How does an AMP differ from a penal sanction? When should an AMP be imposed rather than a penal sanction?

An AMP is an administrative or civil sanction, as opposed to a criminal or penal one. An individual subject to an AMP will not face the possibility of imprisonment. An individual or corporation subject to an AMP will not be prosecuted, and anyone subject to prosecution will not receive an AMP for that same violation.

Penal sanctions should be reserved for the most serious violations of environmental legislation, those that warrant denunciation and punishment. An AMP, in contrast, is meant to encourage compliance with legislation and remove any financial incentive to violate legislation. 

Some examples help illustrate the difference between an AMP and a penal sanction.

An AMP may be the most appropriate response for a corporation that failed to provide information or importation documentation required under environmental legislation like the Canadian Environmental Protection Act, 1999. Providing information is important, because this allows the Minister of the Environment to make important policy and program decisions. In this example, however, we are not concerned with denouncing wrongful conduct, but rather with encouraging the corporation to follow the rules that were designed to achieve the objectives of the regulatory regime. 

Similarly, hunting without physically carrying a permit is a failure to comply with a legislative requirement and is therefore a violation of environmental legislation. In this example, depending on all of the circumstances of the violation, a criminal penalty may be inappropriate. Rather than denunciating his conduct, the enforcement response should encourage the hunter to comply with the legislative requirement to carry his permit in the future. The existence of the AMP as an enforcement response will also encourage compliance with the requirements by others, who might otherwise decide not to comply with the legislative requirement because they believe the risk of prosecution is low. 

Compare that example with one in which a person significantly exceeded the bag or possession limit of migratory birds set by regulation for a specific hunting zone, used a firearm and ammunition that are not permitted under the regulations, and then proceeded to sell the birds illegally for profit. This conduct may or may not have been deliberate, but in any event, it resulted in the killing of birds and the hunter profited from selling the birds. This sort of conduct might, depending on all of the circumstances of the violation, be more appropriately addressed through penal sanctions issued by the court.

(c) The process for issuing an AMP

The seven pieces of environmental legislation set out above^[5] designate certain people as enforcement officers. We propose that these same officers issue AMPs.^[6]

A separate AMP can be issued for each day that a violation is committed. In other words, separate and additional AMPs can be applied for each successive day that a violation of a legislative requirement occurs. For example, if a person or ship disposes of a substance at sea without a permit over the course of four days and an AMP is an appropriate enforcement response in the circumstances, a separate AMP can be issued for each of those four days.^[7]

There is a time limit on issuing an AMP: an AMP can only be issued within two years after the day on which the violation occurs.

An AMP is not issued by a court. If someone wants to challenge the issuance of an AMP, he or she must make a request to have the Chief Review Officer (CRO) review the AMP. The CRO is an independent decision-maker, who derives his or her authority from EVAMPA.  

The CRO has the authority to determine

1. whether the alleged violator committed a violation, and
2. whether the AMP was determined in accordance with the regulations.

 The burden of proof for an AMP is the civil standard of balance of probabilities, and not the criminal standard of proof beyond a reasonable doubt. The CRO does not have the authority to consider the defences of due diligence and mistake of fact.^[8] The CRO’s final determination may be reviewed by a court.^[9] 

^[4] Technically speaking, the AMP is the actual amount payable, and the document that is issued is called a Notice of Violation, or NOV.  For ease of reference, however, we refer generally to AMPs within this document.

^[5] Reproduced here for ease of reference: the Antarctic Environmental Protection Act; the Canada Water Act; the Canada Wildlife Act; the Canadian Environmental Protection Act, 1999, Parts 7 and 9; the International River Improvements Act; the Migratory Birds Convention Act, 1994; and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.

^[6] As noted above, the AMP is the actual amount payable, and the document that is issued is called a Notice of Violation, or NOV. We refer to AMPs for ease of reference.

^[7] See sections 125(1)(b) and 276 of the Canadian Environmental Protection Act, 1999.

^[8] Due diligence and mistake of fact are common law defences defined and applied by courts.

^[9] Section 23 of EVAMPA indicates that the determination of the CRO is "subject to judicial review under the Federal Courts Act".