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| Appeal to
Federal Court
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269. The Minister or any person to whom an
order, as confirmed or varied by a review
officer under section 263, is directed may, by
filing a written notice of appeal within 30 days
after the written reasons are provided by the
review officer under section 266, appeal to the
Federal Court - Trial Division from the
decision of the review officer.
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| Standing on
appeal to
Federal Court
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270. The Minister or the person to whom the
order is directed, as the case may be, has the
right, on an appeal to the Federal Court made
under section 269, to be heard on all questions
of fact and law.
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| Order not
suspended
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271. The filing of a notice of appeal under
section 269 does not suspend the operation of
an order, as confirmed or varied by a review
officer.
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| Contravention
of the Act, the
regulations or
agreements
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272. (1) Every person commits an offence
who contravenes
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(a) a provision of this Act or the regulations;
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(b) an obligation or a prohibition arising
from this Act or the regulations;
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(c) an order or a direction made under this
Act;
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(d) an order, direction or decision of a court
made under this Act; or
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(e) an agreement respecting environmental
protection alternative measures within the
meaning of section 295.
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| Penalties
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(2) Every person who commits an offence
under subsection (1) is liable
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(a) on conviction on indictment, to a fine of
not more than $1,000,000 or to
imprisonment for a term of not more than
three years, or to both; and
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(b) on summary conviction, to a fine of not
more than $300,000 or to imprisonment for
a term of not more than six months, or to
both.
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| False or
misleading
information,
etc.
|
273. (1) Every person commits an offence
who, with respect to any matter related to this
Act or the regulations,
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(a) provides any person with any false or
misleading information, results or samples;
or
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(b) files a document that contains false or
misleading information.
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| Penalties
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(2) Every person who commits an offence
under subsection (1) is liable
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(a) on conviction on indictment, to a fine of
not more than $1,000,000 or to
imprisonment for a term of not more than
three years, or to both, if the offence is
committed knowingly;
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(b) on summary conviction, to a fine of not
more than $300,000 or to imprisonment for
a term of not more than six months, or to
both, if the offence is committed
knowingly;
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(c) on conviction on indictment, to a fine of
not more than $500,000 or to imprisonment
for a term of not more than three years, or
to both, if the offence is committed
negligently; and
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(d) on summary conviction, to a fine of not
more than $200,000 or to imprisonment for
a term of not more than six months, or to
both, if the offence is committed
negligently.
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| Damage to
environment
and risk of
death or harm
to persons
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274. (1) Every person is guilty of an offence
and liable on conviction on indictment to a
fine or to imprisonment for a term of not more
than five years, or to both, who, in committing
an offence under subsection 272(1) or 273(1),
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(a) intentionally or recklessly causes a
disaster that results in a loss of the use of the
environment; or
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(b) shows wanton or reckless disregard for
the lives or safety of other persons and
thereby causes a risk of death or harm to
another person.
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| Criminal
negligence
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(2) Every person who, in committing an
offence under subsection 272(1) or 273(1),
shows wanton or reckless disregard for the
lives or safety of other persons and thereby
causes death or bodily harm to another person
is subject to prosecution and punishment
under section 220 or 221 of the Criminal
Code.
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| Limitation
period
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275. (1) Proceedings by way of summary
conviction in respect of an offence under this
Act may be instituted at any time within, but
not later than, two years after the time when
the Minister became aware of the
subject-matter of the proceedings.
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| Minister's
certificate
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(2) A document purporting to have been
issued by the Minister, certifying the day on
which the Minister became aware of the
subject-matter of any proceedings, shall be
received in evidence and, in the absence of
any evidence to the contrary, the document
shall be considered as proof of that fact
without proof of the signature or of the official
character of the person appearing to have
signed the document and without further
proof.
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| Continuing
offence
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276. Where an offence under this Act is
committed or continued on more than one day,
the person who committed the offence is liable
to be convicted for a separate offence for each
day on which it is committed or continued.
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| Construction
of subsection
389(5) of
Canada
Shipping Act
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277. Subsection 389(5) of the Canada
Shipping Act is not to be construed so as to
relieve any person from liability under this
Act.
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| Regulations
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278. The Governor in Council may make
regulations prescribing the manner in which
the proceeds or any part of the proceeds
resulting from the payment of a fine or the
execution of an order in relation to an offence
under this Act shall be distributed in order to
reimburse any person, government or body
that has commenced the proceedings in
respect of the offence for costs incurred by that
person, government or body in respect of the
prosecution of the offence.
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| Nearest court
has
jurisdiction
for Division 3
of Part 7
offences
|
279. (1) Where an offence arising out of a
contravention of Division 3 of Part 7 is
committed by a person, whether or not the
person is a Canadian citizen, in Canadian
waters, the offence
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(a) is within the competence of and shall be
tried by the court having jurisdiction in
respect of similar offences in the territorial
division nearest to the place where the
offence was committed; and
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(b) shall be tried in the same manner as if it
had been committed within that territorial
division.
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| Where
offence
deemed to
have been
committed
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(2) An offence to which subsection (1)
applies is, for the purpose of that subsection,
deemed to have been committed either in the
place where the offence was actually
committed or in the place in which the accused
is found.
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| Any court has
jurisdiction
for Division 3
of Part 7
offences
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(3) Where an offence arising out of a
contravention of Division 3 of Part 7 is
committed by a person, whether or not the
person is a Canadian citizen, in an area of the
sea referred to in paragraph 122(2)(f) or (g),
the offence
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(a) is within the competence of and shall be
tried by any court having jurisdiction in
respect of similar offences committed by
persons within the limits of its ordinary
jurisdiction; and
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(b) shall be tried in the same manner as if it
had been committed within the jurisdiction
of the court before which it is tried.
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| Liability of
directors
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280. (1) Where a corporation commits an
offence under this Act, any officer, director or
agent of the corporation who directed,
authorized, assented to, acquiesced in or
participated in the commission of the offence
is a party to and guilty of the offence, and is
liable to the punishment provided for the
offence, whether or not the corporation has
been prosecuted or convicted.
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| Duties of
directors
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(2) Every director and officer of a
corporation shall take all reasonable care to
ensure that the corporation complies with
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(a) this Act and the regulations; and
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(b) orders and directions of, and
prohibitions and requirements imposed by,
the Minister and enforcement officers and
review officers.
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| Identifying
owner, master,
etc.
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281. The owner or master of a ship, the
owner or pilot in command of an aircraft or the
owner or person in charge of any platform or
other structure may be charged with an
offence arising out of a contravention of
Division 3 of Part 7 as owner, master, pilot in
command or person in charge, as the case may
be, of the ship, aircraft, platform or structure
if it is adequately identified, and no such
charge is invalid by reason only that it does not
name the owner, master, pilot in command or
person in charge, as the case may be, of the
ship, aircraft, platform or structure.
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| Proof of
offence
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282. (1) In any prosecution of an offence
under this Act, other than an offence under
section 273 if the offence is committed
knowingly or under section 228 or 274, it is
sufficient proof of the offence to establish that
it was committed by an employee or agent of
the accused, whether or not the employee or
agent is identified or prosecuted for the
offence.
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| Proof of
offence
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(2) In any prosecution of the master of a
ship, the pilot in command of an aircraft or the
owner or person in charge of any platform or
other structure for an offence arising out of a
contravention of Division 3 of Part 7, it is
sufficient proof of the offence to establish that
it was committed by a crew member or other
person on board the ship, aircraft, platform or
structure, whether or not the crew member or
other person is identified or prosecuted for the
offence.
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| Defence
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283. No person shall be found guilty of an
offence under this Act, other than an offence
under section 273 if the offence is committed
knowingly or under section 228 or 274, where
the person establishes that the person
exercised all due diligence to prevent its
commission.
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| Importing
substances by
analysts
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284. Despite any other provision of this Act
or the regulations, the Minister may, subject to
any reasonable condition specified by the
Minister, authorize in writing an analyst to
import, possess and use a substance for the
purpose of conducting measurements, tests
and research with respect to the substance.
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| Certificate of
analyst
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285. (1) Subject to subsections (2) and (3),
a certificate of an analyst stating that the
analyst has analysed or examined a substance
or product and stating the result of the analysis
or examination is admissible in evidence in
any prosecution for an offence under this Act
and, in the absence of evidence to the contrary,
is proof of the statements contained in the
certificate without proof of the signature or the
official character of the person appearing to
have signed the certificate.
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| Attendance of
analyst
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(2) The party against whom a certificate of
an analyst is produced may, with leave of the
court, require the attendance of the analyst for
the purposes of cross-examination.
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| Notice
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(3) No certificate of an analyst shall be
received in evidence unless the party
intending to produce it has given to the party
against whom it is intended to be produced
reasonable notice of that intention together
with a copy of the certificate.
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| Safety marks
and
prescribed
documents
|
286. In any prosecution for an offence under
this Act, evidence that a means of containment
or transport bore a safety mark or was
accompanied by a prescribed document is, in
the absence of evidence to the contrary, proof
of the information shown or indicated by the
safety mark or contained in the prescribed
document.
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| Sentencing
considerations
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287. A court that imposes a sentence shall
take into account, in addition to any other
principles that it is required to consider, the
following factors:
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(a) the harm or risk of harm caused by the
commission of the offence;
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(b) an estimate of the total costs to remedy
or reduce any damages caused by the
commission of the offence;
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(c) whether any remedial or preventive
action has been taken or proposed by or on
behalf of the offender, including having in
place an environmental management
system that meets a recognized Canadian or
international standard or a pollution
prevention plan;
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(d) whether any reporting requirements
under this Act or the regulations were
complied with by the offender;
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(e) whether the offender was found to have
committed the offence intentionally,
recklessly or inadvertently;
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(f) whether the offender was found by the
court to have been negligent or incompetent
or to have shown a lack of concern with
respect to the commission of the offence;
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(g) any property, benefit or advantage
received or receivable by the offender to
which, but for the commission of the
offence, the offender would not have been
entitled;
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(h) any evidence from which the court may
reasonably conclude that the offender has a
history of non-compliance with legislation
designed to prevent or minimize harm to the
environment; and
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(i) all available sanctions that are
reasonable in the circumstances, with
particular attention to the circumstances of
aboriginal offenders.
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| Absolute or
conditional
discharge
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288. (1) Where an offender has pleaded
guilty to or been found guilty of an offence, the
court may, instead of convicting the offender,
by order direct that the offender be discharged
absolutely or on conditions having any or all
of the effects described in paragraphs
291(1)(a) to (q).
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| Conditions of
order
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(2) Where an order is made under
subsection (1) and the offender contravenes or
fails to comply with it, or is convicted of an
offence under this Act, including an offence
under paragraph 272(1)(c), the prosecutor
may apply to the court to revoke the discharge,
convict the offender of the offence to which
the discharge relates and impose any sentence
that could have been imposed if the offender
had been convicted at the time the order was
made.
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| Suspended
sentence
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289. (1) Where an offender is convicted of
an offence under this Act, the court may
suspend the passing of sentence and may,
having regard to the nature of the offence and
the circumstances surrounding its
commission, make an order under section 291.
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| Application
by prosecutor
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(2) Where the passing of sentence has been
suspended under subsection (1) and the
offender contravenes or fails to comply with
an order made under section 291, or is
convicted of an offence under this Act,
including an offence under paragraph
272(1)(c), the prosecutor may apply to the
court to impose any sentence that could have
been imposed if the passing of sentence had
not been suspended.
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| Additional
fine
|
290. Where an offender has been convicted
of an offence under this Act, the court may,
where it is satisfied that as a result of the
commission of the offence the offender
acquired any property, benefit or advantage or
that any property, benefit or advantage
accrued to the offender, order the offender to
pay, despite the maximum amount of any fine
that may otherwise be imposed under this Act,
an additional fine in an amount equal to the
court's estimation of the amount of that
property, benefit or advantage.
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| Orders of
court
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291. (1) Where an offender has been
convicted of an offence under this Act, in
addition to any other punishment that may be
imposed under this Act, the court may, having
regard to the nature of the offence and the
circumstances surrounding its commission,
make an order having any or all of the
following effects:
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(a) prohibiting the offender from doing any
act or engaging in any activity that may
result in the continuation or repetition of the
offence;
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(b) directing the offender to take any action
that the court considers appropriate to
remedy or avoid any harm to the
environment that results or may result from
the act or omission that constituted the
offence;
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(c) directing the offender to prepare and
implement a pollution prevention plan or an
environmental emergency plan;
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(d) directing the offender to carry out
environmental effects monitoring in the
manner established by the Minister or
directing the offender to pay, in the manner
prescribed by the court, an amount for the
purposes of environmental effects
monitoring;
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(e) directing the offender to implement an
environmental management system that
meets a recognized Canadian or
international standard;
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(f) directing the offender to have an
environmental audit conducted by a person
of a class and at the times specified by the
court and directing the offender to remedy
any deficiencies revealed during the audit;
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(g) directing the offender to publish, in the
manner directed by the court, the facts
relating to the conviction;
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(h) directing the offender to notify, at the
offender's own cost and in the manner
directed by the court, any person aggrieved
or affected by the offender's conduct of the
facts relating to the conviction;
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(i) directing the offender to post any bond or
pay any amount of money into court that
will ensure compliance with any order
made under this section;
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(j) directing the offender to submit to the
Minister, on application by the Minister
made within three years after the date of
conviction, any information with respect to
the offender's activities that the court
considers appropriate and just in the
circumstances;
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(k) directing the offender to compensate the
Minister, in whole or in part, for the cost of
any remedial or preventive action taken by
or caused to be taken on behalf of the
Minister as a result of the act or omission
that constituted the offence;
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(l) directing the offender to perform
community service, subject to any
reasonable conditions that may be imposed
in the order;
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(m) directing that the amount of any fine or
other monetary award be allocated, subject
to the Criminal Code and any regulations
that may be made under section 278, in
accordance with any directions of the court
that are made on the basis of the harm or risk
of harm caused by the commission of the
offence;
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(n) directing the offender to pay, in the
manner prescribed by the court, an amount
for the purposes of conducting research into
the ecological use and disposal of the
substance in respect of which the offence
was committed or research relating to the
manner of carrying out environmental
effects monitoring;
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