The penalties levied under the Code are not punitive. The portion of penalties which is aimed at encouraging compliance is very low in most cases. Where the government cannot disprove due diligence, the current system still allows penalties which encourage compliance without being unfairly punitive. This recognizes that larger penalties are appropriate where there is moral culpability, but in the absence of proof of negligence this allows imposition of a fine that deters future non-compliance. Unlike the proposed changes to the Forest Practices Code these systems do not require enforcement staff to gather evidence on due diligence in every case.
Due diligence is only relevant as a secondary issue.
This means that it is less of a barrier to investigation and adjudication. Under these systems, government can consider negligence in assessing a fine, but it can choose to not prove due diligence and still impose a penalty that reflects environmental damage, gravity of the contravention and past record. As an alternative, If the government believes that due diligence cannot currently be considered amendments could be introduced whereby consideration of due diligence is only one of many factors relevant to setting fines. This could be accomplished by adding a new paragraph to s.