III. Issues for Consultation

We have set out the proposed implementation details of the AMP system in the pages that follow. Specifically, we are interested in your feedback on the following matters:

1. the violations of environmental legislation that will be subject to an AMP; and
2. the methodology for determining an AMP

(a) Scope of the AMP system: the violations that will be subject to an AMP

We propose that AMPs not be applied to violations that are committed knowingly, or with intention ("mens rea" offences). However, AMPs would be available as a possible response to all other failures to comply with any provision of the seven pieces of environmental legislation, set out above.^[10] The decision to issue an AMP in response to a violation, as opposed to using other enforcement options, would be made on a case-by-case basis.

(b) Determining the amount of the AMP

(i) Introduction

We propose that the amount of an AMP vary according to the nature and circumstances of the violation it addresses, and according to whether the violation was committed by an individual or by a corporation. The ability to vary the amount of the AMP will ensure a fair and appropriate response tailored to the type of violator and the circumstances of the violation.

The amount of an AMP may vary, but it will be predictable. The amount of an AMP will be based on a baseline amount, which can be adjusted upwards if additional factors are present. These additional factors are

1. a history of non-compliance with environmental legislation,
2. any environmental harm caused by the violation, and
3. the person or corporation who committed the violation realized an economic gain because of the violation.

Each of these additional factors will be discussed in more detail below. 

(ii) Determining the baseline AMP

We propose that the baseline AMP will consist of set amounts, and that these set amounts will be determined by considering the nature of the violation and whether the violation was committed by an individual or by a corporation. 

In terms of the nature of the violation, we propose the following three categories of "AMP-able" violations:

Type A:  Violations that represent less serious compliance issues, such as failing to respect a reporting requirement

Type B: Violations that represent more serious compliance issues, and that create a risk of harm to the environment, such as failing to properly maintain regulated equipment to prevent spills or releases

Type C: Violations that represent the most serious compliance issues and that, by their nature, will always result in harm to the environment

In terms of categories of violators, we propose that the AMP system will distinguish among four different types of persons who commit violations: 

1. individuals not in the course of business
2. individuals in the course of business
3. small corporations and vessels
4. other persons (such as large corporations and large vessels)

The different categories of violations and persons committing the violations are designed to allow the AMP to be tailored to create the appropriate incentives to comply with the legislation. 

(iii) Additional factors that can increase the AMP

We propose that the baseline amount, determined by both the nature of the violation and the type of violator that committed it, may be increased if certain additional factors are present. 

These factors are as follows:

1. History of non-compliance with environmental legislation: does the person or corporation who committed the violation have a history of non-compliance with environmental legislation? This history can include, for example, warnings issued or convictions registered in relation to a piece of environmental legislation within the past five years for substantially similar conduct.
2. Harm caused by the violation: did the violation cause harm to the environment? This factor would be applied in the event of the observation or measurement of any of the following:
   • alteration, disruption, or degradation of biodiversity ecosystem or habitat;
   • killing, harming, harassing, capturing, or taking of wildlife species;
   • removing, defacing, damaging, or destroying any cultural resource, including an artifact; or
   • any adverse effect, such as contamination or degradation and including harm caused by the release of any solid, liquid, gas, odour, heat, sound, vibration, or radiation
3. The person or corporation who committed the violation realized an economic gain (including an avoided financial cost) because of the violation

The additional consideration of "harm to the environment" will not apply to Type C violations, which are set out above, because those violations, by their nature, always cause harm. The baseline AMP for those sorts of violations will already reflect this. 

In some circumstances, all three of these factors may apply and the baseline amount will be increased accordingly. However, even in those instances when two or three additional factors apply, EVAMPA sets maximum limits, and therefore, an AMP cannot exceed a specified amount for each type of violation. 

The tables below illustrate the system. View graphical representation of these tables.

This table describes the AMP System for Individuals

This table describes the AMP System for Others

Classifying violations of environmental legislation in this way will provide guidance and flexibility for enforcement officers to determine the most appropriate AMP amount so that the AMP will encourage compliance with the legislation, compensate for the damage made to the environment, and remove any benefit or gain realized by the violator due to his or her non-compliance. 

^[10] Again, these are: 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. Section 5(2) of EVAMPA provides that only contraventions and failures to comply that are offences under environmental legislation may be designated as violations.