Regulations Amending the Contraventions Regulations (Transportation of Dangerous Goods Act, 1992): SOR/2023-265
Canada Gazette, Part II, Volume 157, Number 26
Registration
SOR/2023-265 December 8, 2023
CONTRAVENTIONS ACT
P.C. 2023-1212 December 8, 2023
Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, makes the annexed Regulations Amending the Contraventions Regulations (Transportation of Dangerous Goods Act, 1992) under subsection 8(1)footnote a of the Contraventions Act footnote b.
Regulations Amending the Contraventions Regulations (Transportation of Dangerous Goods Act, 1992)
Amendment
| Item | Column III Fine ($) |
|---|---|
| 1 | 2000 |
| 2 | 2000 |
| 3 | 2000 |
| 4 | 2000 |
| 5 | 2500 |
| 6 | 2000 |
| 7 | 2000 |
| 8 | 2000 |
| 9 | 2000 |
| 10 | 4000 |
| 11 | 4000 |
| 12 | 4000 |
Coming into Force
2 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
The purpose of the amendments to the Contraventions Regulations (CR) is to ensure the effectiveness of the ticketing procedure established under the Contraventions Act, known as the Contraventions Regime. Amendments are required to increase the fine amounts for offences under the Transportation of Dangerous Goods Act, 1992 (TDGA). These increases are required as fine amounts have not been increased in over 15 years and are no longer sufficiently significant to deter potential offenders.
Background
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 regulatory offences and provides for fines that are proportionate to the seriousness of these offences.
Made under section 8 of the Contraventions Act, the CR identify which federal offences are designated as contraventions, provide a short-form description, and prescribe the amount of the fine for each of these offences. The CR are amended when a federal department proposes to designate a given regulatory offence “as a contravention” or when amendments to existing short-form descriptions or fine amounts are required.
The 2017 Evaluation of the Contraventions Act Program found the inherent value in a ticketing regime because it bridges the gap between non-binding warnings and the summary conviction procedure. 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 reported that, in the absence of a ticketing regime, they would routinely elect not to enforce many offences or turn to warnings.
One of the recommendations of the 2021 Evaluation of the Contraventions Act Program was that Justice Canada “should engage the relevant federal departments and agencies 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.”
In response to this recommendation, the Department of Justice Canada has been engaging with departments, including Transport Canada, that use the Contraventions Regime to increase the existing fine amounts.
The TDGA imposes requirements for the transportation of dangerous goods, including proper classification and transportation in means of containment that meet applicable standards, for all modes of transport in Canada (rail, air, marine and road). In the case of offences under the TDGA that have been designated as contraventions, fines have remained the same since these offences were first included in the CR in 2007. In order to maintain their deterrent effect, the fines need to be updated to a level appropriate for 2023. In setting the new fine amounts, Transport Canada consulted inspectors, regional managers as well as the provinces and territories. Factors such as inflation, the reasonableness of the proposed amount and the level of risk associated with the offence were also considered.
Objective
The objective of the amendments is to increase the fine amounts associated with designated offences under the TDGA to ensure the continued effectiveness of the Contraventions Regime as an appropriate enforcement tool.
As a result, the amendments aim to deter the commission of offences under the TDGA, therefore promoting public safety in the transportation of dangerous goods by all modes of transport regulated by Transport Canada.
Description
The amendments increase the fine amounts for the 12 offences under the TDGA designated in Schedule XV of the CR. The amounts were multiplied by a factor of three to five, depending on the nature of the offence and potential resulting prejudice. This results in fine amounts ranging from $2,000 to $4,000. For example, the offence under subsection 18(3) of the TDGA of “Failing to report loss or theft to prescribed person” has been increased from $1,000 to $4,000.
Regulatory development
Consultation
In February 2023, Transport Canada consulted internally with Transportation of Dangerous Goods (TDG) law enforcement personnel and TDG regional managers on the proposed fine amounts. These stakeholders were generally supportive of the initiative and agreed that it would enhance the deterrence of the Contraventions Regime. Internal consultations revealed that certain offences should incur higher fines because of their nature and potential prejudice. As a result, the fines for offences pertaining to safety and security requirements that apply to importing, offering for transport, handling or transporting dangerous goods (paragraph 5(a) and section 5.1 of the TDGA) have been increased to a greater degree.
In March 2023, Transport Canada consulted the National Compliance Working Group (NCWG) on the transportation of dangerous goods on this proposal. The NCWG provides a forum for provinces and territories to exchange information and seek clarification with the federal government on inspection and enforcement matters related to the transportation of dangerous goods. Comments received were supportive of the proposed changes. However, NCWG members expressed concerns that the proposed amounts, which at the time were closer to the maximum amount under the Contraventions Regime of $5,000, would be substantially greater than those of some provinces, such as Ontario or Quebec. Of note, fine amounts for these provinces have not been increased since 2005 and 2011, respectively. In response to these concerns, however, fine amounts were recalculated based on the range currently in place in the other schedules of the CR before moving on to the next phase of consultation.
In July 2023, Transport Canada launched a 52-day consultation period to allow key stakeholders and the public to comment on the proposed fine amounts. Comments could be conveyed through Transport Canada’s consultation page or via email to TDG container facilities or the TDG General Policy Advisory Council. The Council, which comprises members of the Canadian Association of Fire Chiefs, the Canadian Association of Chiefs of Police, the Federation of Canadian Municipalities, labour unions, and a variety of industry associations, provides Transport Canada with advice on all matters related to the transportation of dangerous goods. Most of the comments were in favour of the initiative, while one questioned the increase during difficult economic times. Given fines are only imposed when an offence has been committed, the general economic situation should not be factored in when establishing a fine amount.
Modern treaty obligations and Indigenous engagement and consultation
No impacts on modern treaties have been identified in relation to the CR. The amendments to the CR do not create new offences, nor do they impose any new restrictions or burdens.
Instrument choice
In order to improve the impact of existing contraventions through increases to fine amounts, amendments to the CR are required. No other instrument is appropriate to allow enforcement officers to issue contraventions tickets with increased fine amounts. Therefore, no non-regulatory options were considered.
Regulatory analysis
Benefits and costs
The costs and benefits of the Regulations have been assessed in accordance with the Treasury Board Secretariat’s Policy on Cost-Benefit Analysis by comparing the baseline scenario against the regulatory scenario. The baseline scenario depicts what is likely to happen in the future if the Government of Canada does not implement the Regulations. The regulatory scenario provides information on the intended outcomes of the Regulations.
Of note, the costs related to the administration of the Contraventions Regime, as well as the Government of Canada revenues generated through the payment of fines, are not considered costs nor benefits, as they occur only in instances of non-compliance with the law.
Baseline and regulatory scenarios
In the baseline scenario, fine amounts for offences under the TDGA remain at the current level. As such, tickets under the Contraventions Regime could lose their effectiveness over time, as they may not be perceived as a proper deterrent, increasing risk to safety and security. In the regulatory scenario, the CR are amended, establishing higher fine amounts.
Benefits
The CR allow enforcement officers to bring regulated parties into compliance with a flexible and agile tool that addresses non-compliance in a proportionate way while diverting the treatment of these offences outside of the courts and the justice system. The CR will provide Transport Canada with an additional enforcement option to respond to and deter non-compliance. Tickets under the Contraventions Regime, in contrast to the existing prosecution option, are recognized to be a less resource-intensive and a more agile option to address instances of non-compliance. As such, the Contraventions Regime could reduce costs to the government and lead to greater efficiency in enforcing the TDGA. At the macro-level, the systematic review of fine amounts enhances the credibility of the regime as an enforcement tool of choice.
Costs
While greater fine amounts will result in higher costs for entities and individuals, these costs are directly related to non-compliance with the TDGA and are therefore not considered costs for the purposes of the cost-benefit analysis.
Nominal implementation costs result from the labour necessary to update electronic court systems with new information in the provinces where the regime is implemented. Other costs may include processing costs for federal contraventions tickets issued, collecting revenues generated by voluntary payments of fines, managing unpaid fines and scheduling disputed ticket trials. 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.
Small business lens
Analysis under the small business lens concluded that the regulatory amendments will not impose an administrative or compliance burden on Canadian small businesses. Contraventions are not considered an administrative or a 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 an 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 a 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 (GBA+)
No differential impacts are expected based on gender or other identity factors, as these amendments do not create new requirements or burdens on individuals.
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.
Implementation, compliance and enforcement, and service standards
Implementation
These amendments will come into force on the day on which they are registered.
Compliance and enforcement
The amendments to the CR provide enforcement officers with an appropriate enforcement tool, allowing them to fulfil their mandate effectively and promote legislative and regulatory compliance.
Contact
Evelyne Borkowski-Parent
Legal Counsel
Programs Branch
Legal Services Division
Policy Sector
Department of Justice Canada
284 Wellington Street
Ottawa, Ontario
K1A 0H8