10. Enforcement

The Canadian Environmental Protection Act, 1999 (CEPA 1999) provides enforcement officers with a wide range of powers to enforce the act, including the powers of a peace officer.

These officers can carry out inspections to verify compliance with the act; conduct investigations of suspected violations; enter premises, open containers and examine contents and take samples; conduct tests and measurements; obtain access to information (including data stored on computers); stop and detain conveyances; enter, search, seize and detain items related to the enforcement of the act; secure inspection warrants to enter and inspect premises that are locked and/or abandoned or where entry has been refused; seek search warrants; and arrest offenders.

CEPA analysts can enter premises when accompanied by an enforcement officer. They can exercise the following inspection powers: open containers, examine contents and take samples, conduct tests and measurements and secure access to information. Although CEPA analysts have no authority to issue warnings, directions, tickets or orders, they may be called as expert witnesses for the purpose of securing an injunction or conducting prosecutions.

The act provides a wide range of responses to alleged violations, including warnings, directions, tickets, prohibition orders, recall orders, detention orders for ships, injunctions to stop or prevent a violation, prosecutions, Environmental Protection Alternative Measures and Environmental Protection Alternative Compliance Orders. Enforcement activities include measures to compel compliance without resorting to formal court action and measures to compel compliance through court action.

In 2003-04, no additional persons were designated as enforcement officers under CEPA 1999. The total number of designated CEPA enforcement officers remained at 107.

In 2003-04, the training design and delivery model was successfully applied to a number of new projects, including the preparation of the basic enforcement training required for designation as enforcement officers. This process included the selection of a new training delivery supplier and redesign of the training module on sampling.

In addition, training was given on the Ozone-depleting Substances Regulations and the Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations.

In 2003-04, Environment Canada took steps to reinforce the linkages among the complementary segments of the "compliance continuum," which includes compliance promotion, compliance monitoring, compliance verification and enforcement. A compliance assurance function was developed in order to conduct research and evaluation and provide functional guidance so that the Department makes better priority-setting, targeting and resource allocation decisions relating to compliance promotion and enforcement activities.

An important component of the compliance assurance function is the development of performance management tools to reinforce compliance with CEPA 1999 and its regulations. Performance measures help the Department to focus on those tools that best support its compliance activities. In 2003-04, several pilot projects were implemented to measure the performance of compliance promotion and enforcement activities.

This approach will enhance Environment Canada's ability to develop priority-based, nationally coherent strategies and plans for compliance promotion and enforcement and to achieve greater consistency in environmental protection program implementation.

Compliance promotion activities are designed to help those who are subject to CEPA 1999 understand and achieve compliance with the law. The following are some examples of compliance promotion activities conducted in 2003-04:

• Solvent Degreasing Regulations -- All Environment Canada regional offices participated in compliance promotion activities that included mail-outs of a compliance guide, information sessions and plant visits at several regulated facilities.
• Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations -- Compliance promotion workshops were held in every region to disseminate information on the regulatory requirements. In addition, copies of the proposed regulations, bulletins, guidance documents and fact sheets were distributed directly to several thousand regulatees across Canada. Compliance promotion materials, in English, French, Korean, Punjabi and Chinese, are posted at the new dry-cleaning website on the Green Lane: www.pyr.ec.gc.ca/dryclean/.
• Federal Halocarbon Regulations -- The Pacific and Yukon Region coordinated five compliance promotion workshops throughout British Columbia. The Prairie and Northern Region organized and delivered information sessions in Whitehorse and Yellowknife, while the Ontario Region distributed newsletters and information packages to federal facilities and First Nations peoples. In the Quebec Region, seven information sessions were delivered. The revised version of the Guide for the Implementation of a Halocarbon Recovery Program for Domestic Appliances was published. This guide aims to help municipalities establish recovery programs for substances that deplete the ozone layer and halocarbon alternatives in an effort to protect the ozone layer.
• New Substances Notification Regulations -- Collectively, the Atlantic Region and Pacific and Yukon Region conducted 13 information sessions and coordinated 5 compliance promotion workshops. An information booth was also set up at the Globe conference, the Organics Residuals Recycling conference and the BC Water and Waste Association trade show. Information packages on compliance were also sent out to stakeholders. Quebec stakeholders in the pulp and paper, painting and coverings industry were informed about the requirements of the New Substances Notification Regulations.
• Environmental Emergency Regulations -- The Atlantic Region organized and delivered a Contingency Planning Workshop, which emphasized the new Environmental Emergency Regulations. Information sessions were set up to discuss the various requirements of the Regulations with representatives of the regulated community. The Quebec Region organized and delivered 14 workshops on these regulations, which reached approximately 556 persons. In total, 4500 promotion letters were sent to inform regulatees in Quebec.

Each year, a national inspection plan is developed that describes the inspection activities that will be carried out that fiscal year for CEPA 1999 and the Fisheries Act. To maximize the effectiveness of these activities, priority may be given to specific regulations. In 2003-04, priority regulations were identified on the basis of Environment Canada's Compliance and Enforcement Policy and included factors such as the risk to the environment and human health, compliance rates, new and amended regulations, nature of the regulatory provisions, operational complexity and capacity, and domestic and international commitments and obligations. The number of inspections carried out under the plan is supplemented by a large number of inspections resulting from complaints, intelligence or other information.

In 2003-04, the national inspection plan identified the following CEPA 1999 regulations as national priorities:

• New Substances Notification Regulations;
• Gasoline Regulations;
• Fuels Information Regulation, No. 1;
• Gasoline and Gasoline Blend Dispensing Flow Rate Regulations;
• Contaminated Fuels Regulations;
• Sulphur in Diesel Fuel Regulations;
• Sulphur in Gasoline Regulations;
• Benzene in Gasoline Regulations; and
• Export and Import of Hazardous Wastes Regulations.

In addition, a number of regulations were identified as regional inspection priorities. The priority placed on regulations in each region was influenced by a number of factors, including geography, demographic factors and provincial and territorial environmental sensitivities.

Enforcement officers appointed under CEPA 1999 carry out two categories of enforcement activity: inspection and investigation. The purpose of an inspection is to verify compliance with CEPA 1999 and its regulations. An investigation involves gathering, from a variety of sources, evidence and information relevant to a suspected violation. Enforcement officers will examine every suspected violation of which they have knowledge. If, after the 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 respond.

The responses available to deal with alleged violations of the CEPA 1999 and its regulations include warnings, directions, 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.

Table 6 is a tabulation of inspections, investigations and some of the more commonly used responses to violations.

The statistics are tabulated as follows:

The number of inspections relates to the number of regulatees inspected for compliance under each of the applicable regulations.

* Investigations are tabulated by number of investigation files. An investigation file may include activities relating to another legislation and may include one or more regulations. Therefore, the total number of investigations shown by regulation does not add to the total at the legislation level.

** These numbers include activities that are undertaken pursuant to enforceable provisions in CEPA 1999 rather than enforceable provisions found within CEPA 1999 regulations.

All measures (except for prosecutions) are tabulated at the section level of a regulation. For example, if the outcome of an inspection is the issuance of a written warning that relates to three sections of a given regulation, the number of written warnings is 3. The number of prosecutions is represented by the number of regulatees that were prosecuted by charged date, regardless of the number of regulations involved.

An Environmental Protection Compliance Order can be issued to prevent a violation from occurring; to stop or correct one that is occurring or continuing over a period of time; or to correct an omission where one is occurring under CEPA 1999 or one of its regulations.

In 2003-04, an Environmental Protection Compliance Order was issued to a company in British Columbia that was allegedly in violation of the Ozone-Depleting Substances Regulations. The company was ordered to stop the import, offering for sale and sale of a product known to contain hydrochlorofluorocarbons.

Key prosecutions and court cases in 2003-04 included:

• A Newfoundland company was fined $1750 ($250 fine and $1500 contribution to the Environmental Damages Fund) after pleading guilty to a violation of subsection 125(1) of CEPA 1999 resulting from improper disposal of fish offal.
• An Ontario company was fined $7500 ($1000 per charge for six charges and a victim surcharge of $1500) after pleading guilty to six charges of violating the Ozone-Depleting Substances Regulations under CEPA 1999. The charges related to failure to declare imports for the 2001. This was the first time the Contraventions Act (ticketing) was used as an enforcement response by the Ontario Region.
• An Ontario company was fined $25 000 ($5000 fine and $20 000 to the Canadian Dermatology Association) after pleading guilty to charges of violating the Ozone-Depleting Substances Regulations under CEPA 1999. The charges were in relation to the illegal importation of substances known to contain hydrochlorofluorocarbons.
• An Ontario company was fined $25 000 payable to the Canadian Dermatological Association for violations of the Ozone-Depleting Substances Regulations, relating to the importation of products containing 1,1,1-trichloroethane. Upon the appeal of the penalty by the Crown, the appeal court reassessed the case and raised the amount of the penalty to $75 000.
• A Quebec company was fined $3500 after pleading guilty to charges under the Export and Import of Hazardous Waste Regulations in relation to the importation of hazardous waste without a permit.
• A company in British Columbia was fined $5000 ($500 fine and $4500 contribution to the Environmental Damages Fund) after pleading guilty to charges of violating section 185 of CEPA 1999. The charges were in relation to the illegal importation of a hazardous waste/hazardous recyclable material/prescribed non-hazardous waste.

Enforcement-related activities are carried out under various international agreements and organizations. Key international activities in 2003-04 include:

• International Network for Environmental Compliance and Enforcement -- The network of more than 100 countries launched its Environmental Enforcement Indicators Project by forming an enforcement indicators expert working group, drafting a background paper and collaborating with the Organisation for Economic Co-operation and Development on a two-day enforcement workshop.
• Interpol -- Interpol is an international police organization comprising 174 member states. Environment Canada's Enforcement Branch is a member of Interpol's Environmental Crimes Committee. In 2003, the Enforcement Branch contributed to the development of course curriculum for Interpol's Environmental Crimes Training Course. This course is designed to sensitize law enforcement officers to environmental crimes and educate them on how to appropriately respond to and investigate environmental crimes.
• North American Agreement on Environmental Cooperation -- The Enforcement Working Group under the Commission for Environmental Cooperation provides a forum to help member countries (Mexico, United States and Canada) to work together on projects and initiatives that encourage trinational environmental enforcement collaboration. In 2003, meetings focused on fostering an interagency exchange of information, regional priority setting and enforcement and compliance strategies. A meeting between the Commission and its Joint Public Advisory Committee provided public input on enforcement activities.
• United Nations Convention on the Law of the Sea -- Canada ratified this Convention in 2003. Enforcement staff continued to participate in meetings, working groups and discussions on the implementation of the Convention.
• United Nations Environment Programme -- Environment Canada made use of funding provided by the Programme to provide training to Colombian environmental law enforcement officials and customs officers on detecting and investigating ozone-depleting substances smuggling operations.