OFFENCES AND PUNISHMENT

Contraven-
tions

80. (1) Every person who contravenes section 33 or 34 or any prescribed provision of a regulation or an emergency order

    (a) is guilty of an offence punishable on summary conviction and is liable

      (i) in the case of a corporation, to a fine not exceeding $300,000, and

      (ii) in the case of any other person, to a fine not exceeding $50,000 or to imprisonment for a term not exceeding one year, or to both; or

    (b) is guilty of an indictable offence and is liable

      (i) in the case of a corporation, to a fine not exceeding $1,000,000, and

      (ii) in the case of any other person, to a fine not exceeding $250,000 or to imprisonment for a term not exceeding five years, or to both.

A regulation or emergency order may prescribe which of its provisions may give rise to an offence.

Subsequent offence

(2) If a person is convicted of an offence a second or subsequent time, the amount of the fine for the subsequent offence may, despite subsection (1), be double the amount set out in that subsection.

Continuing offence

(3) A person who commits or continues an offence on more than one day is liable to be convicted for a separate offence for each day on which the offence is committed or continued.

Fines cumulative

(4) A fine imposed for an offence involving more than one animal, plant or other organism may be calculated in respect of each one as though it had been the subject of a separate information and the fine then imposed is the total of that calculation.

Additional fine

(5) If a person is convicted of an offence and the court is satisfied that monetary benefits accrued to the person as a result of the commission of the offence,

    (a) the court may order the person to pay an additional fine in an amount equal to the court's estimation of the amount of the monetary benefits; and

    (b) the additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.

Officers, etc., of corporations

81. If a corporation commits an offence, any officer, director or agent of the corporation who directed, authorized, assented to, or acquiesced or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.

Offences by employees or agents

82. In any prosecution for an offence, 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 has been prosecuted for the offence.

Defence of due diligence

83. No person may be found guilty of an offence if the person establishes that they exercised all due diligence to prevent its commission.

Venue

84. A prosecution for an offence may be instituted, heard and determined in the place where

    (a) the offence was committed;

    (b) the subject matter of the prosecution arose;

    (c) the accused was apprehended; or

    (d) the accused happens to be, or is carrying on business.

Forfeiture

85. (1) If a person is convicted of an offence, the convicting court may, in addition to any punishment imposed, order that any seized thing by means of or in relation to which the offence was committed, or any proceeds of its disposition, be forfeited to Her Majesty.

Return if no forfeiture ordered

(2) If the convicting court does not order the forfeiture, the seized thing, or the proceeds of its disposition, must be returned to its lawful owner or the person lawfully entitled to it.

Retention or sale

86. If a fine is imposed on a person convicted of an offence, any seized thing, or any proceeds of its disposition, may be retained until the fine is paid or the thing may be sold in satisfaction of the fine and the proceeds applied, in whole or in part, in payment of the fine.

Orders of court

87. If a person is convicted of an offence, the court may, in addition to any punishment imposed and having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing one or more of the following prohibitions, directions or requirements:

    (a) prohibiting the person from doing any act or engaging in any activity that could, in the opinion of the court, result in the continuation or repetition of the offence;

    (b) directing the person to take any action that the court considers appropriate to remedy or avoid any harm to any wildlife species that resulted or may result from the commission of the offence;

    (c) directing the person to publish, in any manner that the court considers appropriate, the facts relating to the commission of the offence;

    (d) directing the person to pay a responsible minister or the government of a province an amount for all or any of the cost of remedial or preventive action taken, or to be taken, by or on behalf of the responsible minister or that government as a result of the commission of the offence;

    (e) directing the person to perform community service in accordance with any conditions that the court considers reasonable;

    (f) directing the person to submit to the responsible minister, on application to the court by the responsible minister within three years after the conviction, any information about the activities of the person that the court considers appropriate;

    (g) requiring the person to comply with any other conditions that the court considers appropriate for securing the person's good conduct and for preventing the person from repeating the offence or committing other offences; and

    (h) directing the person to post a bond or pay into court an amount of money that the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction or requirement under this section.

Suspended sentence

88. (1) If a person is convicted of an offence and the court suspends the passing of the sentence under paragraph 731(1)(a) of the Criminal Code, the court may, in addition to any probation order made under that Act, make an order containing one or more of the prohibitions, directions or requirements mentioned in section 87.

Imposition of sentence

(2) If the person does not comply with the order or is convicted of another offence, within three years after the order is made, the court may, on the application of the prosecution, impose any sentence that could have been imposed if the passing of sentence had not been suspended.

Limitation period

89. (1) Proceedings by way of summary conviction in respect of an offence may be commenced at any time within, but not later than, two years after the day on which the subject matter of the proceedings became known to the responsible minister.

Responsible minister's certificate

(2) A document appearing to have been issued by the responsible minister, certifying the day on which the subject matter of any proceedings became known to the responsible minister, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is proof of the matter asserted in it.

References to the responsible minister

(3) A reference to the responsible minister in this section includes a provincial minister if

    (a) the responsible minister has delegated responsibility for the enforcement of this Act, the regulations or an emergency order to the provincial minister; and

    (b) the offence is alleged to have been committed in that province.

ALTERNATIVE MEASURES

When alternative measures may be used

90. (1) Alternative measures may be used to deal with a person alleged to have committed an offence, but only if it is not inconsistent with the purposes of this Act to do so and the following conditions are met:

    (a) the measures are part of a program of alternative measures authorized by the Attorney General, after consultation with the responsible minister;

    (b) an information has been laid in respect of the offence;

    (c) the Attorney General, after consulting with the responsible minister, is satisfied that the measures would be appropriate, having regard to the nature of the offence and the circumstances surrounding its commission and the following factors, namely,

      (i) the protection of species at risk,

      (ii) the person's history of compliance with this Act,

      (iii) whether the offence is a repeated occurrence,

      (iv) any allegation that information is being or was concealed or other attempts to subvert the purposes and requirements of this Act are being or have been made, and

      (v) whether any remedial or preventive action has been taken by or on behalf of the person in relation to the offence;

    (d) the person fully and freely consents to participate in the alternative measures after having been informed of them;

    (e) the person and the Attorney General have concluded an agreement respecting the alternative measures within one hundred and eighty days after the person has, with respect to the offence,

      (i) been served with a summons,

      (ii) been issued an appearance notice, or

      (iii) entered into a promise to appear or a recognizance;

    (f) before consenting to participate in the alternative measures, the person has been advised of the right to be represented by counsel;

    (g) the person accepts responsibility for the act or omission that forms the basis of the offence;

    (h) there is, in the opinion of the Attorney General, sufficient evidence to proceed with the prosecution of the offence; and

    (i) the prosecution of the offence is not barred at law.

Restriction on use

(2) Alternative measures must not be used to deal with a person who

    (a) denies participation or involvement in the commission of the alleged offence; or

    (b) expresses the wish to have any charge against them dealt with by the court.

Admissions not admissible in evidence

(3) No admission, confession or statement accepting responsibility for a given act or omission made by a person as a condition of being dealt with by alternative measures is admissible in evidence against the person in any civil or criminal proceedings.

Dismissal of charge

(4) A court must dismiss a charge laid against a person in respect of an offence if alternative measures have been used to deal with the person in respect of the alleged offence and

    (a) the court is satisfied on a balance of probabilities that the person has totally complied with the agreement; or

    (b) the court is satisfied on a balance of probabilities that the person has partially complied with the agreement and, in the opinion of the court, the prosecution of the charge would be unfair, having regard to the circumstances and the person's performance with respect to the agreement.

No bar to proceedings

(5) The use of alternative measures to deal with a person is not a bar to proceedings against them under this Act.

Laying of information, etc.

(6) This section does not prevent any person from laying an information, obtaining the issue or confirmation of any process, or proceeding with the prosecution of any offence, in accordance with law.

Terms and conditions in agreement

91. (1) An alternative measures agreement may contain any terms and conditions, including, but not limited to,

    (a) terms and conditions having any or all of the effects set out in section 87 or any other terms and conditions having any of the effects prescribed by regulations that the Attorney General, after consultation with the responsible minister, considers appropriate; and

    (b) terms and conditions relating to the costs associated with ensuring compliance with the agreement.

Supervision of compliance

(2) Any governmental or non-governmental organization may supervise compliance with the agreement.

Duration of agreement

92. An alternative measures agreement comes into effect on the day on which it is concluded or on any later day that is specified in the agreement and continues in effect for a period of not more than three years specified in the agreement.

Filing in court for the purpose of public access

93. (1) The Attorney General must consult with the responsible minister before concluding an alternative measures agreement and, subject to subsection (5), must have the agreement filed with the court in which the information was laid within thirty days after the agreement is concluded. The agreement is to be filed as part of the court record of the proceedings to which the public has access.

Reports

(2) A report relating to the administration of and compliance with the agreement must be filed with the same court immediately after all the terms and conditions of the agreement have been complied with or the charges in respect of which the agreement was entered into have been dismissed.

Third party information

(3) Subject to subsection (4), if any of the following information is to be part of the agreement or the report, it must be set out in a schedule to the agreement or to the report:

    (a) trade secrets of any person;

    (b) financial, commercial, scientific or technical information that is confidential information and is treated consistently in a confidential manner by any person;

    (c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to any person, or could reasonably be expected to prejudice the competitive position of any person; or

    (d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of any person.

Agreement on information to be in the Schedule

(4) The parties to the agreement must agree on which information that is to be part of the agreement or the report is information that meets the requirements of paragraphs (3)(a) to (d).

How the Schedule is to be kept secret

(5) The Schedule is confidential and must not be filed with the court.

Prohibition of disclosure

(6) The responsible minister must not disclose any information set out in a schedule to the agreement or to the report, except as authorized by section 98 or the Access to Information Act.

Filing in public registry

94. The following documents must be included in the public registry:

    (a) a copy of each agreement and report filed under section 93 or subsection 96(2); or

    (b) a notice that the agreement or report has been filed in court and is available to the public.

Stay of proceedings

95. (1) Despite section 579 of the Criminal Code, the Attorney General must, on filing an alternative measures agreement, stay the proceedings in respect of the alleged offence, or apply to the court for an adjournment of the proceedings, for a period of not more than one year after the expiry of the agreement.

Recommen-
cement of proceedings

(2) Proceedings stayed under subsection (1) may be recommenced without laying a new information or preferring a new indictment, as the case may be, by the Attorney General giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered. If no such notice is given within one year after the expiration of the agreement, the proceedings are deemed never to have been commenced.