Policy framework to implement the Environmental Violations Administrative Monetary Penalties Act: chapter 3

3.0 Compliance and enforcement of AMPs

1. 3.1 What is an administrative monetary penalty?
2. 3.2 Enforcement measures and AMPs
3. 3.3 AMPs in conjunction with other enforcement measures
4. 3.4 Designated officers for amps

According to ECCC’s existing Compliance and Enforcement Policies ^{Footnote 2}, enforcement officers (hereinafter, officers) will apply legislation administered by ECCC in a manner that is fair, predictable and consistent, using rules, sanctions and processes securely founded in law. Enforcement of AMPs will be founded upon the same principles.  Officers will continue to administer ECCC’s legislation with an emphasis on prevention of damage to the environment, conservation and protection of natural resources. If officers have reasonable grounds to believe that that a violation took place, they will choose the most appropriate enforcement measure required to secure compliance.

The addition of AMPs will provide a new enforcement measure that ECCC officers may use to respond to alleged violations.

3.1 What is an Administrative Monetary Penalty?

An AMP is a financial disincentive to non-compliance and may be issued by the regulator, without court proceedings, for the violation of designated legislative requirements.  An AMP may be issued, in the form of a Notice of Violation, to a person, ship or vessel if an officer believes on reasonable grounds, that the person, ship or vessel has committed a contravention of a specified provision of an Environmental Act or its related regulations.  

3.2 Enforcement measures and AMPs

Whenever an alleged violation of ECCC’s legislation is discovered, ECCC’s Compliance and Enforcement Policies dictate that officers will apply the following factors when deciding what enforcement measure 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 legislation.
• Effectiveness in achieving the desired result with the violator - The desired result is compliance with the legislation, 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 legislation, willingness to cooperate with officers, evidence of corrective action already taken, and the existence of enforcement measures under other statutes by other federal authorities or by provincial, territorial or indigenous governments as a result of the same activity.
• Consistency in 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 measure to take.

Although situations may differ in relation to alleged violations of ECCC’s legislation, one of the most important factors in deciding on an enforcement measure is the effectiveness of the measure in securing compliance as quickly as possible, with no recurrence of the violation.

The choice of enforcement measure, whether AMPs or any other measure, will be determined by the officer according to the principles set out above and in ECCC’s Compliance and Enforcement Policies. The range of existing enforcement measures can be found in the Compliance and Enforcement Policies on the ECCC website, however, here is a brief re-cap of Written Warnings and Compliance Orders:

Written Warnings

Officers may use warnings:

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

Officers can issue warnings verbally or in writing. Verbal warnings may be followed by a written warning.

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

• whether the individual, company or government agency has a good history of compliance;  
• whether the individual, company or government agency has made reasonable efforts to remedy or mitigate the consequences of the alleged offence or prevent further violations.

When an 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, form part of the records of ECCC.

Compliance Orders ^{Footnote 3}

It is possible to issue compliance orders to deal with certain violations under certain Environmental Acts. Compliance Orders are a means to secure compliance, without use of the court system.

For example, CEPA authorizes officers to issue a Compliance Order to:

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

Examples of instances where an officer may use a Compliance Order are:

• previously, the officer  issued the violator a warning or ticket for the particular offence, but the violator did not return to compliance;
• required conduct is not being carried out; or
• an individual, company or government agency that was required to prepare and implement an environmental emergency plan failed to do so.

The Compliance Order will direct the alleged violator to take the measures required to return to compliance. The order imposes no financial penalty.

3.3 Administrative Monetary Penalties in conjunction with other enforcement measures

The choice by an officer to issue a Notice of Violation will be part of the officer’s analysis as per the criteria set out in the Compliance and Enforcement Policies, but certain enforcement measures (e.g.: Written Warnings,  Compliance Orders, etc.)can be taken in conjunction with AMPs, depending on the circumstances of the violation. 

The following questions and answers illustrate how AMPs may be used in conjunction with other enforcement measures.

Can an AMP and a Written Warning be issued for the same violation on a given day?

An officer won’t, for the same violation on a given day, issue both a Notice of Violation  and a Written Warning. Officers will use the factors set out in section 3.2 of this document and those set out in the Compliance and Enforcement Policies to determine which enforcement measure is best suited to secure compliance.

Can AMPs be issued in conjunction with other enforcement measures for continuing violations that take place on separate days?

Yes. Section 12 of EVAMPA states that 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.

For example, a situation that prompted the issuance of a Written Warning on day 1 might prompt the issuance of a Notice of Violation on day 2 if compliance has not been secured. Other situations might prompt the issuance of a separate Notice of Violation on both day 1 and day 2.

An AMP and prosecution could also be used for a continuing violation, as each day of a continuing offence or violation constitutes a separate offence or violation. The laying of charges might be the more appropriate enforcement measure at a later date, if compliance has not been secured, following the previous issuance of a Notice of Violation.

Will a Written Warning always be issued before the issuance of an AMP? 

No. The decision on whether to issue a Written Warning or a Notice of Violation for a violation will depend on the circumstances of the violation. These measures are both non-punitive measures to promote compliance with Environmental Acts. To this end, officers will use the factors set out in the Compliance and Enforcement Policies to determine which enforcement measure is best suited to secure compliance.   

Can an AMP and a Compliance Order be issued for the same violation?

An officer can issue a Notice of Violation in addition to a Compliance Order, if the circumstances of the violation warrant it. Depending on the circumstances, an AMP and a Compliance Order could be used for the same violation on the same day to secure compliance with the provision in question or to correct an act or omission.

For example, an officer conducts an inspection in response to a complaint from a member of the public concerning the deposit of waste material in a national wildlife area. If the officer has reasonable grounds to believe that there is a deposit of waste material that alters or degrades the quality of the environment, the officer can issue a verbal Compliance Order to direct an alleged violator to take measures required to return to compliance and could also issue an AMP for the same violation to deter re-occurrence of a violation.

However, an AMP will not be issued at the same time as a Compliance Order issued to prevent a violation from occurring. 

Can an AMP be issued and a prosecution pursued for the same violation? 

No. If an officer issues an AMP for a violation, the officer cannot proceed with charges towards a prosecution for the same violation.   

However, if an officer recommends the laying of charges and prosecution of a person, ship or vessel, but the Public Prosecution Service of Canada decides that a prosecution is not warranted in the circumstances, then the officer may issue a Notice of Violation for the violation.

Can a seizure take place at the same time as the issuance of an AMP?

When carrying out an inspection or search, an officer has authority to seize and detain things for various purposes including as evidence if the officer has reasonable grounds to believe an act or regulations have been violated.  A thing may also be seized as evidence by an officer acting under a warrant. EVAMPA does not contain authorities to seize anything as evidence.

Things will not be kept by the Crown for use as evidence to prove a violation under EVAMPA.

What happens in cases where there is overlap with provincial regulations and the province is also investigating?

In situations where there is overlap with certain of our federal wildlife acts or regulations and provincial acts or regulations, in terms of both organizations regulating the same type of activity, liaison between the two regulatory bodies may occur.  Officers will decide on the enforcement measure which will have the best probability of securing compliance. Some provincial officers are designated to enforce certain federal wildlife acts and regulations, and are similarly guided by the principle of securing compliance.      

3.4 Designated officers for Administrative Monetary Penalties

Generally, ECCC enforcement officers are designated to verify compliance with ECCC’s legislation, thereby authorizing them to examine/review every suspected violation of which they have knowledge. The Minister of the Environment and Climate Change will also designate officers with the power to issue AMPs. 

Will ECCC designate senior-level officials to issue AMPs?

No. ECCC intends to designate only officers with the ability to issue AMPs in accordance with EVAMPA and the AMPs Regulations.

Will First Nations’ representatives be designated to issue AMPs on First Nations Reserve Lands?

No. At this time, ECCC intends to designate only its officers with the ability to issue AMPs in accordance with EVAMPA and the AMPs Regulations.