Publication
TITRE
Major Reforms Proposed for Environmental Offences in Ontario
DATE
1 novembre 2004
EXPERTISE
On October 27, 2004, the Ontario Government introduced Bill 133 (the Environmental Enforcement Statute Law Amendment Act, 2004) for first reading. If passed, Bill 133 will significantly amend the Ontario Environmental Protection Act (EPA) and the Ontario Water Resources Act (OWRA) to:
- establish a new "environmental penalty" regime in Ontario;
- increase the maximum penalties that can be imposed for the existing strict liability offences in the EPA and OWRA;
- place the onus on corporate officers and directors to show that they took all reasonable care to prevent a corporation from contravening the EPA or OWRA;
- make it easier for the provincial Crown to establish the elements of various offences in the EPA and OWRA; and
- add a new provision requiring that certain circumstances be considered by a court to be aggravating factors when determining an appropriate sentence for a person convicted of an offence.
ENVIRONMENTAL PENALTY REGIME
Bill 133 would establish an "environmental penalty" regime in Ontario, whereby Ministry officials would be able to impose administrative penalties upon individuals or companies for violations of the EPA or OWRA, or any regulations, orders, permits, certificates of approval, etc. issued under either statute. The penalties could be as high as $20,000 per day for individuals and $100,000 per day for corporations.
Unlike the general offence provisions of the EPA and OWRA, the environmental penalty provisions create absolute liability offences. As such, the requirement to pay an environmental penalty will apply even if the person took all reasonable steps to prevent the contravention (i.e., was duly diligent) and/or if, at the time of the contravention, the person had an honest and reasonable belief in a mistaken set of facts that, if true, would have rendered the contravention innocent. In addition, a person ordered to pay an environmental penalty could also be prosecuted for an offence in respect of the same contravention.
The environmental penalty regime replaces the "administrative monetary penalty" (AMP) provisions enacted by the previous Conservative government, but never brought into force. These initial AMP provisions were delayed because of a Charter challenge to a similar absolute liability regime under the Highway Traffic Act (Ontario). In November 2003, the Ontario Court of Appeal unanimously found that the absolute liability AMP regime in the Highway Traffic Act (Ontario) did not violate the provisions of the Charter dealing with the right to security of the person and the presumption of innocence (R. v. Transport Robert (1973) Ltée (2003), 68 (O.R.) 51).
AMP regimes are becoming increasingly common in North America as regulators search for more flexible enforcement tools to address environmental violations. What distinguishes AMPs from other enforcement options is the fact that government officials (not the courts) are empowered to levy penalties for non-compliance. For regulators, this means a much simpler enforcement process than prosecuting through the court system.
INCREASED MAXIMUM PENALTIES FOR GENERAL OFFENCES
If passed into law, Bill 133 will also increase the fines imposed by courts when a person is convicted of an offence under the EPA or OWRA. For individuals, the existing maximum fines of $20,000 per day for a first conviction and $50,000 per day for a subsequent conviction would be increased to $50,000 and $100,000 per day respectively. A one-year jail term could also be imposed. For corporations, the existing maximum fines of $100,000 per day for a first conviction and $200,000 per day for a subsequent conviction would be increased to $250,000 and $500,000 per day respectively.
The Bill also expands the list of offences for which more serious penalties could be imposed under the EPA and OWRA, and puts in place minimum penalties for convictions on such offences.
SENTENCING CONSIDERATIONS FOR GENERAL OFFENCES
Bill 133 will add a new provision to both the EPA and OWRA that would direct courts to consider the following circumstances to be aggravating factors in sentencing:
- whether the offence caused an adverse effect or impaired water quality;
- whether the offence was committed intentionally or recklessly;
- whether the commission of the offence was motivated by a desire to increase revenue or decrease costs;
- whether the defendant was previously warned by the Ministry of such circumstances;
- whether the defendant concealed the commission of the offence, or failed to take responsive action or cooperate with the Ministry; or
- whether the defendant previously contravened environmental protection legislation.
DIRECTORS AND OFFICERS' ("D&O") LIABILITY
At present, a director or officer of a corporation can be charged under the general offence provisions of the EPA or OWRA or under the specific D&O liability provision in each statute. The existing provision requires the provincial Crown to prove that the director or officer failed to take all reasonable care to prevent the commission of the offence. Bill 133 would amend this by placing the onus on the director or officer to establish that he or she took all reasonable care to prevent the violation. In this way, the provision becomes similar to the EPA's and OWRA's strict liability offences, where due diligence is a defence afforded to those charged with an offence rather than an element of the offence which must be proved by the Crown.
SPILL COSTS RECOVERABLE BY MUNICIPALITIES
Bill 133 would amend Part X of the EPA, which deals with "spills", to permit the Director to issue an order requiring the owner or the person having control of a pollutant that is spilled, to pay for costs and expenses incurred by the Ministry to: (a) prevent, eliminate or ameliorate any adverse effects or to restore the environment; and (b) to prevent or reduce the risk of future discharges. Municipalities are given the ability to issue orders in similar situations, but only for costs and expenses associated with (a) above.
MINISTRY THRESHOLDS REDUCED
Throughout the Bill, a number of provisions would make it easier for the Ministry to establish a contravention or authorize Ministry action. This is accomplished by proposed wording changes that would alter the requirement for the Ministry to show that environmental harm is "likely" or "expected" to occur, and replace it with a requirement to show merely that harm "may" occur.
The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault or any member of the Firm on the points of law discussed.
For further information, please contact:
Richard J. King
(416) 216-2311
rking@ogilvyrenault.com
