Regulations Amending the Contraventions Regulations: SOR/2023-136
Canada Gazette, Part II, Volume 157, Number 14
Registration
SOR/2023-136 June 19, 2023
CONTRAVENTIONS ACT
P.C. 2023-583 June 16, 2023
Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, makes the annexed Regulations Amending the Contraventions Regulations under section 8footnote a of the Contraventions Act footnote b.
Regulations Amending the Contraventions Regulations
Amendments
1 Item 2 of Part XXIII of Schedule I.3 to the Contraventions Regulations footnote 1 is repealed.
2 Schedule I.3 to the Regulations is amended by adding the following after Part XXXII:
PART XXXIII
| Item | Column I Provision of New Substances Notification Regulations (Organisms) |
Column II Short-Form Description |
Column III Fine ($) |
|---|---|---|---|
| 1 | 3(1) and 5(a)(i) | Failure to provide the specified information within the required time | 500 |
| 2 | 3(2) or (3) and 5(a)(ii) | Failure to provide the specified information within the required time | 500 |
| 3 | 3(4) or (6) and 5(b) | Failure to provide the specified information within the required time | 500 |
| 4 | 3(5) and 5(c) | Failure to provide the specified information within the required time | 500 |
| 5 | 4 and 5(d) | Failure to provide the specified information within the required time | 500 |
| 6 | 4.1 | Failure to provide the specified notice within the required time | 500 |
| 7 | 7 | Failure to keep the specified information in the specified manner | 500 |
| 8 | 8(1) | Failure to include the specified information and certification | 500 |
| 9 | 8(3) | Failure to identify a person resident in Canada that is authorized to act on one’s behalf | 500 |
PART XXXIV
| Item | Column I Provision of Reduction in the Release of Volatile Organic Compounds Regulations (Petroleum Sector) |
Column II Short-Form Description |
Column III Fine ($) |
|---|---|---|---|
| 1 | 3(2)(a) | Failure to establish and keep up to date an inventory of equipment components | 500 |
| 2 | 7(2) | Failure to keep a record of the specified information | 500 |
| 3 | 7(3) | Failure to retain the record in the specified manner | 500 |
| 4 | 9(1) | Failure to keep a record of the specified information | 500 |
| 5 | 9(2) | Failure to keep the required optical gas-imaging records | 500 |
| 6 | 10 | Failure to retain the specified information in the specified manner | 500 |
| 7 | 16(1) | Failure to keep a record of the specified information | 500 |
| 8 | 16(2) | Failure to retain the specified information in the specified manner | 500 |
| 9 | 28(1) | Failure to keep a record of the specified information | 500 |
| 10 | 28(2) | Failure to retain the specified information in the specified manner | 500 |
| 11 | 29 | Failure to submit the specified information within the required time | 500 |
| 12 | 30(2) | Failure to submit the specified information within the required time | 500 |
| 13 | 30(3) | Failure to submit the specified information within the required time | 500 |
| 14 | 31(2) | Failure to submit the specified information within the required time | 500 |
| 15 | 32(1) | Failure to submit the specified annual report | 500 |
| 16 | 32(2) | Failure to submit the specified annual report | 500 |
| 17 | 42(1) | Failure to submit the auditor’s report within the required time | 500 |
| 18 | 42(2) | Failure to submit the auditor’s report within the required time | 500 |
| 19 | 43 | Failure to submit the specified plan | 500 |
PART XXXV
| Item | Column I Provision of Single-use Plastics Prohibition Regulations |
Column II Short-Form Description |
Column III Fine ($) |
|---|---|---|---|
| 1 | 8 | Failure to keep the specified records | 500 |
| 2 | 9(1) | Failure to keep the specified records in the specified manner | 500 |
| 3 | 9(2) | Failure to notify the Minister in writing within the required time | 500 |
PART XXXVI
| Item | Column I Provision of Volatile Organic Compound Concentration Limits for Certain Products Regulations |
Column II Short-Form Description |
Column III Fine ($) |
|---|---|---|---|
| 1 | 8(4) | Failure to notify the Minister in writing of a change to information within the required time | 500 |
| 2 | 11(1) | Failure to submit the notice within the required time | 500 |
| 3 | 12(2) | Failure to submit the application within the required time | 500 |
| 4 | 13 | Failure to submit the annual report within the required time | 500 |
| 5 | 14 | Failure to submit the annual report within the required time | 500 |
| 6 | 15(4) | Failure to notify the Minister in writing of a change to information within the required time | 500 |
| 7 | 16(3) | Failure to submit the application for renewal within the required time | 500 |
| 8 | 18(4) | Failure to notify the Minister in writing of a change to information within the required time | 500 |
| 9 | 19(5) | Failure to submit the specified explanation | 500 |
| 10 | 22(1) | Failure to indicate the specified information on the container | 500 |
| 11 | 23 | Failure to provide instructions in both official languages for the use of the product | 500 |
| 12 | 24(1) | Failure to maintain the specified records | 500 |
| 13 | 24(2) | Failure to maintain the specified records | 500 |
| 14 | 25(1) | Failure to keep the specified records at one of the specified places | 500 |
| 15 | 25(2) | Failure to notify the Minister in writing of a change of address within the required time | 500 |
3 Part II of Schedule III.01 to the Regulations is replaced by the following:
PART II
| Item | Column I Provision of Migratory Birds Regulations, 2022 |
Column II Short-Form Description |
Column III Fine ($) |
|---|---|---|---|
| 1 | 5(1)(a) | Unlawfully capturing, killing, taking, injuring or harassing a migratory bird, or attempting to do so | 400 per bird |
| 2 | 5(1)(b) | Unlawfully destroying, taking or disturbing a migratory bird egg | 250 per egg |
| 3 | 5(1)(c) | Unlawfully damaging, destroying, removing or disturbing a nest, nest shelter, eider duck shelter or duck box | 250 per nest, shelter or box |
| 4 | 6(1) | Depositing bait in a specified area within the specified period | 250 |
| 5 | 6(5) | Failure to post a sign at the place where bait is deposited | 150 |
| 6 | 7(1) | Entering a lure crop area or lure station area without authorization | 150 |
| 7 | 7(2) | Hunting in a lure crop area or a lure station area that is closed | 250 |
| 8 | 8(1) | Destroying, damaging, altering or removing a sign related to prohibited activities | 150 |
| 9 | 8(2) | Destroying, damaging, altering or removing a sign related to bait | 150 |
| 10 | 9 | Introducing into Canada a non-indigenous species without the specified consent | 1000 |
| 11 | 10(2) | Possessing, for the purpose of shipping, a migratory bird or a nest with non-compliant packaging | 150 |
| 12 | 17 | Failure to submit the report within the required time | 150 |
| 13 | 19(6)(a) | Hunting during closed season | 250 |
| 14 | 19(6)(b) | Killing or taking migratory game birds or murres in excess of the daily bag limit | 250 plus 50 per additional bird |
| 15 | 19(6)(c) | Possessing migratory game birds or murres in excess of the possession limit | 250 plus 50 per additional bird |
| 16 | 19(7) | Hunting where hunting has been prohibited | 250 |
| 17 | 22(3) | Failure to preserve a migratory game bird before giving it to the holder of a charity permit | 150 |
| 18 | 27(1) | Unauthorized hunting | 250 per bird |
| 19 | 28(1) | Hunting in a specified area during a closed season | 250 per bird |
| 20 | 28(2) | Hunting during an open season except on specified land | 200 |
| 21 | 28(3)(a) | Hunting north of 60° north latitude during the prohibited time | 250 |
| 22 | 28(3)(b) | Hunting south of 60° north latitude during the prohibited time | 250 |
| 23 | 31(1) | Hunting under a permit without a conservation stamp | 150 |
| 24 | 32(2) | Hunting without a specified accompanying individual | 100 |
| 25 | 32(3) | Accompanying more than two minors | 150 |
| 26 | 34(1) | Failure to have the hunting permit on one’s person | 250 |
| 27 | 34(2) | Failure to show the hunting permit to the game officer | 250 |
| 28 | 36(1) | Hunting within 400 m of bait | 250 |
| 29 | 37(1)(a) | Hunting with an unauthorized bow | 250 |
| 30 | 37(1)(b) | Hunting with an unauthorized crossbow | 250 |
| 31 | 37(1)(c) | Hunting with an unauthorized shotgun | 250 |
| 32 | 37(2)(a) | Possessing a shotgun holding more than three cartridges in a hunting area | 250 |
| 33 | 37(2)(b) | Possessing a detachable magazine capable of holding more than two cartridges in a hunting area | 250 |
| 34 | 37(3)(a) | Possessing more than one shotgun in a hunting area | 250 |
| 35 | 37(3)(b) | Possessing an unauthorized shotgun in a hunting area | 250 |
| 36 | 37(4) | Hunting with a shotgun loaded with a cartridge containing a single projectile | 250 |
| 37 | 38(1) | Hunting while possessing toxic shot in the hunting area or using toxic shot | 500 |
| 38 | 39(1) | Hunting using live birds or electronic bird calls | 250 |
| 39 | 40(1) | Hunting from or using an aircraft or motorized land vehicle | 250 |
| 40 | 41(1) | Hunting from or using a moving boat equipped with a motor or sail | 250 |
| 41 | 42(1) | Hunting without adequate means of retrieval | 250 |
| 42 | 42(2) | Failure to retrieve a migratory game bird as soon as circumstances permit | 250 |
| 43 | 42(3) | Failure to kill and retrieve a wounded migratory bird in the specified manner | 250 |
| 44 | 43(1) | Killing or taking migratory game birds in excess of daily bag limit | 250 plus 50 per additional bird |
| 45 | 44 | Hunting after the daily bag limit has been reached | 250 plus 50 per additional bird |
| 46 | 46(1) | Possessing a number of migratory game birds in excess of the possession limit | 250 plus 50 per additional bird |
| 47 | 46(2) | Possessing a number of murres in excess of the possession limit | 250 plus 50 per additional murre |
| 48 | 48(2) | Temporarily possessing a migratory game bird for taxidermy for profit without a permit | 400 |
| 49 | 50(1) | Allowing a migratory game bird that is not labeled or preserved to enter the possession of another person | 250 |
| 50 | 50(2) | Possessing a migratory game bird taken by another person without a label | 250 |
| 51 | 51(1) | Possessing more than 200 migratory game birds | 250 plus 50 per additional bird |
| 52 | 51(2) | Possessing a migratory game bird that is of a species at risk | 500 per bird |
| 53 | 51(3) | Failure to store migratory game birds in the specified location | 150 |
| 54 | 51(5) | Failure to keep the specified records of dead migratory game birds | 150 |
| 55 | 52(1) | Possessing or transporting a migratory game bird without a fully feathered wing or head attached | 150 |
| 56 | 52(2) | Failure to store migratory game birds in the specified manner | 250 per bird |
| 57 | 54(2) | Failure to preserve a migratory game bird before giving it to the holder of a charity permit | 150 |
| 58 | 55(1) | Allowing the meat of a migratory game bird to be abandoned or to become inedible | 250 |
| 59 | 65(4) | Failure to carry the written nomination on one’s person | 150 |
| 60 | 65(5)(a) | Failure to return a cancelled or expired permit | 150 |
| 61 | 65(5)(b) | Failure to report required information | 150 |
| 62 | 66(1) | Possessing a migratory bird without a fully feathered wing or head attached | 150 |
| 63 | 66(2) | Failure to store migratory birds in the specified manner | 150 |
| 64 | 67(2) | Failure to preserve a migratory game bird before giving it to the holder of a charity permit | 150 |
| 65 | 68(1) | Giving a migratory bird that is not labelled or preserved | 150 |
| 66 | 68(2) | Possessing a migratory bird that is not labelled or preserved | 150 |
| 67 | 69(1)(a) | Shooting migratory birds elsewhere than on or over specified fields | 250 |
| 68 | 69(1)(b) | Discharging firearms within 50 m of a body of water | 250 |
| 69 | 69(1)(c) | Using decoys or bird calls | 250 |
| 70 | 69(1)(d) | Using blinds or other concealment | 250 |
| 71 | 72(2) | Possessing birds for a purpose other than disposing of them | 150 |
| 72 | 73 | Using or possessing toxic shot for the purpose of scaring or killing birds | 500 |
| 73 | 75(5)(a) | Failure to have the scientific permit on one’s person | 150 |
| 74 | 75(5)(b) | Failure to show the scientific permit | 150 |
| 75 | 75(6)(a) | Failure to have a copy of the scientific permit on one’s person | 150 |
| 76 | 75(6)(b) | Failure to show the copy of the scientific permit | 150 |
| 77 | 75(7)(a) | Failure to record the specified information | 200 |
| 78 | 75(7)(b) | Failure to record the information required by the Minister | 150 |
| 79 | 75(8) | Failure to submit the specified report to the Minister | 200 |
| 80 | 75(9) | Failure to dispose of a bird in accordance with the conditions of the permit | 250 |
| 81 | 76(3) | Killing migratory birds possessed under an aviculture permit by shooting them | 400 per bird |
| 82 | 76(4) | Releasing into the wild a migratory bird possessed under an aviculture permit without authorization | 1000 |
| 83 | 76(6) | Failure to deposit the bait in the specified location | 250 |
| 84 | 76(7)(a) | Failure to keep the specified records | 250 |
| 85 | 76(7)(b) | Failure to submit the specified report within the required time | 250 |
| 86 | 78 | Receiving or accepting a migratory bird for mounting without the written statement | 250 |
| 87 | 79(1) | Failure to keep the specified records | 250 |
| 88 | 79(2) | Failure to submit the annual report or any other report required by the Minister | 250 |
| 89 | 81 | Failure to leave sufficient eiderdown in a nest | 1000 |
| 90 | 82(4)(a) | Failure to keep the specified records | 150 |
| 91 | 82(4)(b) | Failure to maintain the specified records during the specified period | 150 |
Coming into Force
4 These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues
These amendments address two main issues.
First, in order to allow for the enforcement of existing regulatory offences contained in regulations made under the Canadian Environmental Protection Act, 1999 (CEPA), through the ticketing procedure established under the Contraventions Act, the offences must be included in the Contraventions Regulations (CR).
The ticketing procedure established under the Contraventions Act, known as the Contraventions Regime, provides a way to enforce minor offences without having to appear in court. Making use of this regime for minor offences saves valuable time for the court and for the enforcement agencies (provincial and federal), which can be dedicated to the prosecution of more serious offences. It is therefore a more reasonable and efficient method of enforcement.
Second, the Migratory Birds Regulations (the “MBR”) were repealed and replaced by the Migratory Birds Regulations, 2022 (the “MBR 2022”). To allow the enforcement of offences contained in the MBR 2022 through the Contraventions Regime, as had been done with the MBR, the offences need to be included in the CR. Amendments to the CR are required to reflect the repeal and replacement of the MBR with the MBR 2022 and to ensure enforcement continuity in this area of activities. The fine amounts related to the MBR 2022 will also be increased, as the fine amounts for contraventions under the MBR have not been updated in the last two decades. The former fine amounts are no longer sufficiently significant to deter potential offenders, as they do not take into account such factors as inflation. Consequently, they must be increased.
Background
Enacted in 1992, the Contraventions Act provides an alternative to the summary conviction procedure set out in the Criminal Code for the prosecution of certain federal offences. This procedure reflects the distinction between criminal offences and regulatory offences. It allows enforcement authorities to commence the prosecution of a contravention by means of a ticket with the option of voluntary payment of the prescribed fine, therefore avoiding the longer and more costly summary conviction procedure set out in the Criminal Code. This spares the offender from the legal ramifications of a Criminal Code conviction (such as a criminal record) while ensuring that court and criminal justice resources can be focussed on the prosecution of more serious offences. This ticketing procedure is a more reasonable and effective approach for relatively minor infractions, and provides for fines that are more proportionate to the seriousness of these offences.
Made under section 8 of the Contraventions Act, the CR identifies which federal offences are designated as contraventions, provides a short-form description and prescribes the amount of the fine for each of these contraventions. The short-form description is reproduced on the ticket given to the offender. The CR is amended when a federal department proposes to designate a given regulatory offence under its jurisdiction as a “contravention” to enable the prosecution of these matters by means of the Contraventions Regime.
The 2017 Evaluation of the Contraventions Act Program found that leaving enforcement officers with no other option than to enforce certain federal offences by way of summary conviction creates strong disincentives to actually enforce these offences. The summary conviction procedure is inadequate in many scenarios involving relatively minor federal offences, as it involves steps, costs and consequences that may be disproportionate to the nature of these offences. Enforcement officers interviewed as part of the evaluation have stated that, in the absence of a ticketing regime, they would routinely elect not to enforce many offences or turn to warnings, which have no legal strength.
As detailed in the 2021 Evaluation of the Contraventions Act Program, designating certain offences under the Quarantine Act — a pivotal tool in managing the COVID-19 pandemic — as contraventions demonstrated the importance and relevance of the Contraventions Regime. The Department of Justice Canada collaborated with all key stakeholders to ensure that enforcement officers could use a ticketing system to enforce a number of offences under this legislation, such as failing to answer questions asked by screening officers, failing to disclose information concerning communicable diseases, or failing to comply with an order prohibiting the entry into Canada. These are informative examples where proceeding with a summary conviction process would prove highly inefficient. During interviews, enforcement officers emphasized the importance of having such offences covered under the Regime of the Contraventions Act to ensure that immediate action can be taken to change the behaviour of those who fail to comply with these requirements.
The enforcement of certain provisions of regulations made under CEPA and the Migratory Birds Convention Act, 1994 (the “MBCA”) is already done via the Contraventions Regime. Schedules I.3 (CEPA) and III.01 (MBCA) to the CR describe offences contained in regulations made under these Acts that are designated as contraventions, and provide a short-form description and fine amount for each offence.
In 2022, the MBR were repealed and replaced by the MBR 2022. The new regulations increase clarity by updating outdated language, incorporating current legal standards, eliminating errors, inconsistencies and ambiguities, and restructuring the regulations by placing related information into distinct parts. They also create new restrictions, mostly related to hunting.
The 2021 Evaluation of the Contraventions Act Program — which assessed activities undertaken by the Department of Justice Canada between 2016–2017 and 2019–2020 to support the implementation and management of the Contraventions Regime, as well as measures undertaken by all provincial governments and municipalities where the Regime is implemented — recommended that relevant federal departments and agencies be engaged in a systemic review of fine levels to ensure that the Contraventions Act is achieving its intended impact on those who commit offences designated as contraventions.
The Department of Justice Canada agreed with the recommendation. As there is currently no process to review fines systematically to ensure they continue to achieve their desired effect, Justice Canada has been engaging collaboratively with each department that has offences designated as contraventions that fall under the purview of their minister to formulate recommendations to increase existing fine amounts. Justice Canada has therefore engaged with Environment and Climate Change Canada (ECCC) concretely in that regard.
In setting the new fine amounts related to the MBR 2022, ECCC considered the impact of the offences on wildlife conservation and compared similar provincial offences as well as the current fine regime with the Environmental Violations Administrative Monetary Penalties Regulations (EVAMPR) for similar offences. Factors such as inflation and the reasonableness of the proposed amount were also considered.
The regulations made under CEPA protect human and environmental health by reducing exposure to carcinogens and restricting the importation or manufacture of certain substances and organisms, while the MBR 2022 promotes the management and conservation of migratory birds in Canada, including their eggs and nests.
The issuance of tickets by ECCC enforcement officers for offences designated as contraventions contributes to Canada’s environmental and wildlife protection objectives.
Objective
These amendments to the CR are made to expand the list of offences contained in regulations made under CEPA and reflect the repeal and replacement of the MBR with the MBR 2022, providing ECCC enforcement officers with an appropriate enforcement tool. The amendments are expected to enhance the ability of ECCC to enforce federal regulations, therefore contributing to the protection of the environment and wildlife and to the rule of law in Canada.
These amendments make a number of technical amendments to ensure that the CR accurately reflect amendments made to the substantive regulations creating or adjusting offences already designated as contraventions. The amendments also raise the fine amounts for contraventions under the MBR 2022 to encourage greater compliance and increase deterrence.
Description
Canadian Environmental Protection Act, 1999 (CEPA)
The amendments designate approximately 46 offences contained in the following regulations made under CEPA, now added to Schedule I.3 to the CR:
- New Substances Notification Regulations (Organisms);
- Reduction in the Release of Volatile Organic Compounds Regulations (Petroleum Sector);
- Single-use Plastics Prohibition Regulations; and
- Volatile Organic Compound Concentration Limits for Certain Products Regulations.
The offences now designated as contraventions relate primarily to administrative requirements involving preparation of reports or the regular presentation of information (e.g. failure to keep records, failure to provide the specified information, etc.). The fine amount for each offence is $500. This is the same amount prescribed for offences already included in Schedule I.3 to the CR for regulations made under CEPA. The following are examples of the short-form descriptions of offences now designated as contraventions:
New Substances Notification Regulations (Organisms)
- Section 4.1: Failure to provide the specified notice within the required time;
- Section 7: Failure to keep the specified information in the specified manner.
Reduction in the Release of Volatile Organic Compounds Regulations (Petroleum Sector)
- Paragraph 3(2)(a): Failure to establish and keep up to date an inventory of equipment components;
- Subsection 7(2): Failure to keep a record of the specified information.
Single-use Plastics Prohibition Regulations
- Subsection 9(1): Failure to keep the specified records in the specified manner;
- Subsection 9(2): Failure to notify the Minister in writing within the required time.
Volatile Organic Compound Concentration Limits for Certain Products Regulations
- Subsection 8(4): Failure to notify the Minister in writing of a change to information within the required time;
- Subsection 24(1): Failure to maintain the specified records.
Migratory Birds Conventions Act, 1994 (MBCA)
The amendments also repeal and replace Part II (MBR) of Schedule III.01 (MBCA) to the CR. The amendments are made to
- update the wording and numbering of the existing MBR;
- reflect changes that have been made to the substantive regulations creating new restrictions, mostly related to hunting, and designating these new offences as new contraventions; and
- adjust the fine amounts for contraventions previously designated under the MBR.
All fine amounts related to MBR previously ranged from $100 and $500. These fines are updated to range from $100 to $1,000 for MBR 2022 contraventions. Below are examples of the short-form description of offences under the regulation along with the fine amount:
Migratory Birds Regulations, 2022
- Subsection 28(1): Hunting in a specified area during a closed season; $250 per bird;
- Paragraph 37(2)(b): Possessing a detachable magazine capable of holding more than two cartridges while hunting in a hunting area; $250.
Regulatory development
Consultation
ECCC conducted a 60-day public consultation between December 9, 2022, and February 7, 2023, via the Consulting with Canadians website, seeking comments on proposed amendments to CR Schedule I.3 concerning CEPA and Schedule III.01, Part II for the MBCA. The focus of this consultation was to engage with provinces/territories, other federal departments and agencies, U.S. government, Canadians, Indigenous organizations, hunters and hunting organizations, conservation organizations, industry sectors, and manufacturers or importers of living organisms or animate products of biotechnology.
The online document presented three examples of prohibitions and explained (via a note) that it is possible to obtain, upon request, a list of all the amendments proposed for CEPA and the MBCA. Interested parties were encouraged to contact ECCC to obtain a table, allowing them to make comparisons between the current items in the CR and the proposed amendments (including fine amounts).
In the specific context of the amendment to Schedule III.01, Part II to the CR, ECCC also contacted, by email, on the day of the opening of the consultation, its provincial and territorial law enforcement partners. The objective was to request their comments on the proposed changes as well and the same table available to interested parties was attached to the communication email to stakeholders.
This supplementary information was intended to help interested parties and stakeholders better understand the reason for the proposed amendments. Most fine amounts in Schedule III.01, Part II to the CR had not been updated since 1997. To determine new amounts, ECCC compared Schedule III.01, Part II fine regimes with a regime for similar offences and adjusted amounts with inflation using the Bank of Canada’s Inflation Calculator. ECCC also considered greater deterrence for the most common offences, examined the potential impact of the offence on wildlife conservation and reviewed the reasonableness of the proposed amounts. The amounts, which ranged from $100 to $500, were proposed to increase in range from $100 to $1,000. This would also bring fine amounts closer to the penalty amounts found in the EVAMPR.
A report on the consultation period provided by ECCC stated that four comments were received: two from the general public, one from a biologist from a conservation organization and one from an officer from a provincial law enforcement organization. None of the comments raised any significant concerns.
Concerning the amendments to Schedule I.3, the participants recommended that the proposed fine amounts be doubled because, according to them, the fines are too low, Canada’s resources demand protection and fines should be increased. ECCC studied these recommendations and intends to propose an increase of the fine amounts via a subsequent regulatory process.
Concerning the amendments to Schedule III.01, Part II, the first participant asked if the consultation process included Indigenous communities. The process specifically invited Indigenous Organizations to participate. ECCC also sent personalized emails to four Indigenous interested parties to invite them to the consultation. The second participant suggested that the orders of magnitude are under-representative of the true ecological values associated with wildlife and provided the Department with examples to consider. ECCC took note of these suggestions and examples. The third comment was a request to obtain the full list of proposed changes to Schedule III.01. The participant also provided suggestions for short-form description amendments. ECCC has reviewed these recommendations and made suggestions to legal drafters where appropriate.
These amendments to the CR do not create new offences nor do they impose any new restrictions or burdens. They designate existing offences as contraventions in order to allow enforcement officers to use the Contraventions Regime as an enforcement tool. Therefore, these amendments were not prepublished in the Canada Gazette, Part I.
Modern treaty obligations and Indigenous engagement and consultation
ECCC conducted an assessment of modern treaty implications as part of the regulatory amendment proposal for the MBR 2022. The assessment did not identify any modern treaty implications.
ECCC specifically invited Indigenous groups to provide comments during the consultation period that ran from December 9, 2022, to February 7, 2023. According to the department’s report, ECCC received no comments from those Indigenous groups contacted.
As well, analysis performed by Justice Canada identified no adverse impact on Indigenous people resulting from these amendments.
Instrument choice
In order to have these offences enforced through the Contraventions Regime and to allow enforcement officers to issue contraventions tickets for these offences, they must be designated as contraventions and included in the CR. Therefore, no non-regulatory options were considered.
The CR have been amended multiple times in order to designate new contraventions and to reflect amendments made to acts and regulations creating the offences.
Regulatory analysis
Benefits and costs
Designating offences as contraventions provides enforcement officers with an appropriate and efficient enforcement tool to enforce the provisions of CEPA, the MBCA and their respective regulations. Prior to their designation as contraventions, enforcement officers could only enforce those CEPA offences by issuing a warning or proceed under the summary conviction procedure of the Criminal Code. The designation of the offences under the MBR 2022 as contraventions simply reinstates the enforcement tool that existed under the now-repealed MBR.
Simple warnings are not always an effective tool for deterring non-compliance and using the Criminal Code summary conviction procedure to enforce minor offences may be seen as disproportionate to the nature of the offence. As highlighted in the 2021 Evaluation of the Contraventions Act Program, in the absence of alternative means such as the contraventions or AMP regimes, enforcement officers are likely to face some level of resistance from prosecution services or the courts in attempting to charge individuals through the summary conviction process for offences of a statutory nature. Interviews with both prosecution services and enforcement authorities indicate that the significant burden placed on the courts, combined with the requirement to proceed with charges within a reasonable timeframe, is forcing all justice stakeholders to make decisions on the most appropriate use of the court’s limited time and resources. This places enforcement officers in a challenging position where their cases may compete with other offences of a criminal nature in attempting to get the attention of the courts.
While there is no data from which one can draw a comparison, there is consensus among all key players (federal institutions, enforcement authorities, the courts and the public) that prosecutions by way of ticketing results in savings to the entire justice system, as it provides the offenders, law enforcement, and courts with a quick and convenient process for handling offences. Ticketing, to a large extent, is intended to divert designated offences from the courts, resulting in savings for the government in terms of prosecutions costs, and enabling the courts to focus on matters that require judicial consideration. Ticketing also frees up a great amount of enforcement officers’ time. Less time in the office preparing for court means more time dedicated for monitoring and control efforts. Furthermore, offenders will be subject to a process that is more appropriate and proportionate to the nature of the offence. The offender can pay the fine and avoid having to appear in court or, should they choose to plead not guilty, the ticket can be contested in court. The Contraventions Regime provides tangible benefits as it allows enforcement officers to use a more graduated approach to enforcement that reflects the severity of each offence.
There are also costs associated with these amendments. Nominal administrative costs result from the labour necessary to update electronic court systems with new information in the provinces where the regime is implemented. Administrative costs also include processing the federal contraventions tickets issued, collecting revenues generated by voluntary payments of fines, managing unpaid fines and scheduling disputed ticket trials. However, costs incurred by the provinces in the administration of federal contraventions are deducted from the revenues generated by the payment of fines, making management of the Contraventions Regime on behalf of the federal government cost-neutral. The surplus fine revenues are shared equally between the federal and provincial governments. The agreements signed with the provinces include clauses to that effect.
Generally, issuing contraventions tickets is more costly than relying on warnings or simply not enforcing the offences. However, those are not meaningful alternatives to the Contraventions Regime. The Contraventions Act provides enforcement officers with a quick and convenient process to lay charges by means of tickets. As a court appearance is not required where the accused voluntarily pays the set fine, the result is savings in terms of prosecutions costs and time spent by enforcement officers preparing for court. The actual payment of fines is not considered a cost for cost benefit analysis purposes since individuals whose activities are contrary to prevailing laws and regulations do not have standing (i.e. whether the costs should count) in this context.
Training on the Contraventions Regime is provided by the Department of Justice in collaboration with client departments, provincial courts services counterparts and the Public Prosecution Service of Canada at the request of client departments on an as-needed basis. The costs associated with this training are integral to ongoing activities and are generally not dependent on any one specific amendment to the CR. Other costs to the federal government in relation to these amendments, such as changes to websites and documentation, are acknowledged but not expected to be significant.
In the case of the MBR 2022, the amendments are meant to repeal and replace what previously existed in the CR while bringing the fine amounts into greater harmony with existing fines for similar offences. The increase in fine amounts for designated offences will have the benefit of greater cost recovery and higher compliance, as the updated fines are expected to improve deterrence and generate higher revenue per offence in instances where deterrence is not achieved.
Small business lens
Analysis under the small business lens concluded that the amendments will not impact Canadian small businesses. Contraventions are not considered to be administrative or compliance burden for the purpose of the small business lens.
One-for-one rule
The one-for-one rule does not apply as there is no incremental change in administrative burden on businesses and no regulatory titles are repealed or introduced. Contraventions are not considered to be administrative burden for the purpose of the one-for-one rule.
Regulatory cooperation and alignment
These amendments are not related to a work plan or commitment under a formal regulatory cooperation forum.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.
Gender-based analysis plus
A gender-based analysis plus (GBA+) was conducted and no differential impacts are expected on the basis of gender or other identity factors, as these amendments do not create new requirements or burdens on individuals; they merely designate existing offences as contraventions.
It is important to note that the purpose of the Contraventions Act is to ensure that the enforcement of offences designated as contraventions will be less onerous on the offender and more proportionate and appropriate to the seriousness of the offence when compared to the procedure set out in the Criminal Code.
Rationale
The amendments to the CR enable the reasonable enforcement of CEPA, the MBCA and their respective regulations while ensuring consistency of enforcement with similar types of offences.
Implementation, compliance and enforcement, and service standards
Implementation
These Regulations will come into force on the day on which they are registered.
Compliance and enforcement
The amendments to the CR give enforcement officers an appropriate enforcement measure, allowing them to fulfil their mandate effectively and promote legislative and regulatory compliance.
Contact
Ryan Jeffries
Legal Counsel
Programs Branch
Legal Services Division
Policy Sector
Department of Justice Canada
284 Wellington Street
Ottawa, Ontario
K1A 0H8