| References to
the competent
minister
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(3) A reference to the competent minister in
this section includes a provincial or territorial
minister if the competent minister has
delegated responsibility for the enforcement
of this Act, the regulations or an emergency
order in the province or territory to the
provincial or territorial minister and the
offence is alleged to have been committed in
the province or territory.
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| When
alternative
measures may
be used
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108. (1) Alternative measures may be used
to deal with a person who is 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:
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(a) the measures are part of a program of
alternative measures authorized by the
Attorney General, after consultation with
the competent minister;
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(b) an information has been laid in respect
of the offence;
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(c) the Attorney General, after consultation
with the competent minister, is satisfied that
the alternative measures would be
appropriate, having regard to the nature of
the offence, the circumstances surrounding
its commission and the following factors,
namely,
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(i) the protection of species at risk,
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(ii) the person's history of compliance
with this Act,
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(iii) whether the offence is a repeated
occurrence,
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(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
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(v) whether any remedial or preventive
action has been taken by or on behalf of
the person in relation to the offence;
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(d) the person applies, in accordance with
regulations made under paragraph 119(a),
to participate in the alternative measures
after having been informed of them;
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(e) the person and the Attorney General
have concluded an agreement respecting
the alternative measures within 180 days
after the person has, with respect to the
offence, been served with a summons, been
issued an appearance notice or entered into
a promise to appear or a recognizance;
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(f) before consenting to participate in the
alternative measures, the person has been
advised of the right to be represented by
counsel;
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(g) the person accepts responsibility for the
act or omission that forms the basis of the
offence;
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(h) there is, in the opinion of the Attorney
General, sufficient evidence to proceed
with the prosecution of the offence; and
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(i) the prosecution of the offence is not
barred at law.
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| Restriction on
use
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(2) Alternative measures may not be used to
deal with a person who
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(a) denies participation or involvement in
the commission of the alleged offence; or
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(b) expresses the wish to have any charge
against them dealt with by the court.
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| Admissions
not admissible
in evidence
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(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.
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| Dismissal of
charge
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(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
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(a) the court is satisfied on a balance of
probabilities that the person has totally
complied with the agreement; or
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(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.
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| No bar to
proceedings
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(5) The use of alternative measures in
respect of a person who is alleged to have
committed an offence is not a bar to any
proceedings against the person under this Act.
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| Laying of
information,
etc.
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(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.
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| Terms and
conditions in
agreement
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109. (1) An alternative measures agreement
may contain any terms and conditions,
including
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(a) terms and conditions having any or all of
the effects set out in section 105 or any other
terms and conditions having any of the
effects prescribed by regulations that the
Attorney General, after consultation with
the competent minister, considers
appropriate; and
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(b) terms and conditions relating to the costs
associated with ensuring compliance with
the agreement.
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| Supervision
of compliance
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(2) Any governmental organization may
supervise compliance with the agreement.
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| Duration of
agreement
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110. 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.
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| Filing in court
for purpose of
public access
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111. (1) The Attorney General must consult
the competent 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 30 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.
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| Reports
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(2) A report relating to the administration
of, and compliance with, the agreement must
be filed with the same court by the Attorney
General 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.
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| Third party
information
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(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:
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(a) trade secrets of any person;
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(b) financial, commercial, scientific or
technical information that is confidential
information and is treated consistently in a
confidential manner by any person;
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(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
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(d) information the disclosure of which
could reasonably be expected to interfere
with contractual or other negotiations of
any person.
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| Agreement on
information to
be in schedule
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(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).
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| How schedule
is to be kept
secret
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(5) The schedule is confidential and must
not be filed with the court.
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| Prohibition of
disclosure
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(6) The competent minister must not
disclose any information set out in a schedule
to the agreement or to the report, except as
authorized by section 117 or the Access to
Information Act.
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| Stay of
proceedings
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112. (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.
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| Recommence
ment of
proceedings
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(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 expiry of the
agreement, the proceedings are deemed to
have never been commenced.
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| Application to
vary
agreement
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113. (1) Subject to subsections 111(2) and
(3), the Attorney General may vary the terms
and conditions of an alternative measures
agreement on application by the person bound
by the agreement and after consultation with
the competent minister. The Attorney General
must be of the opinion that the variation is
desirable because of a material change in the
circumstances since the agreement was
concluded or last varied. The variation may
include
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(a) decreasing the period for which the
agreement is to remain in force; and
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(b) relieving the person of compliance with
any condition that is specified in the
agreement, either absolutely or partially or
for any period that the Attorney General
considers desirable.
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| Filing varied
agreement
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(2) An agreement that has been varied must
be filed in accordance with section 111 with
the court in which the original agreement was
filed.
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| Application of
provisions
dealing with
records
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114. Sections 115 to 117 apply only in
respect of persons who have entered into an
alternative measures agreement, regardless of
the degree of their compliance with the terms
and conditions of the agreement.
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| Disclosure of
information
by peace
officer or
enforcement
officer
|
115. Where it is necessary in the conduct of
an investigation of an offence, a peace officer
or enforcement officer may disclose to a
department or agency of a government in
Canada any information in a record relating to
an offence alleged to have been committed by
a person, including the original or a copy of
any fingerprints or photographs of the person.
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| Government
records
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116. (1) The competent minister, any
enforcement officer and any department or
agency of a government in Canada with which
the competent minister has entered into an
agreement under section 10 may keep records
and use information obtained as a result of the
use of alternative measures to deal with a
person
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(a) for the purposes of an inspection under
this Act or an investigation of an offence
alleged to have been committed by a
person;
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(b) in proceedings against a person under
this Act;
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(c) for the purpose of the administration of
alternative measures programs; or
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(d) otherwise for the administration of this
Act.
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| Private
records
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(2) Any person or organization may keep
records of information obtained by them as a
result of supervising compliance with an
alternative measures agreement and use the
information for the purpose of supervising
such compliance.
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| Disclosure of
records
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117. (1) A record or information referred to
in section 115 or 116 may be made available
to
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(a) any judge or court for any purpose with
respect to proceedings relating to offences
under this or any other Act committed or
alleged to have been committed by the
person to whom the record relates;
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(b) any peace officer, enforcement officer
or prosecutor
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(i) for the purpose of investigating an
offence under this or any other Act that
the person is suspected on reasonable
grounds of having committed, or in
respect of which the person has been
arrested or charged, or
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(ii) for any purpose related to the
administration of the case to which the
record relates;
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(c) any member of a department or agency
of a government in Canada, or any agent of
such a government, that is
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(i) engaged in the administration of
alternative measures in respect of the
person, or
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(ii) preparing a report in respect of the
person under this Act; or
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(d) any other person who is deemed, or any
person within a class of persons that is
deemed, by a judge of a court to have a valid
interest in the record, to the extent directed
by the judge, if
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(i) the judge is satisfied that the
disclosure is desirable in the public
interest for research or statistical
purposes or in the interest of the proper
administration of justice, and
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(ii) the person gives a written
undertaking not to subsequently disclose
the information except in accordance
with subsection (2).
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| Subsequent
disclosure for
research or
statistical
purposes
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(2) If a record is made available for
inspection to any person under paragraph
(1)(d) for research or statistical purposes, that
person may subsequently disclose
information contained in the record, but may
not disclose the information in any form that
would reasonably be expected to identify the
person to whom it relates.
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| Information,
copies
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(3) A person to whom a record is authorized
to be made available under this section may be
given any information contained in the record
and may be given a copy of any part of the
record.
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| Evidence
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(4) This section does not authorize the
introduction into evidence of any part of a
record that would not otherwise be admissible
in evidence.
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| Exception for
public access
to court
record
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(5) For greater certainty, this section does
not apply in respect of an alternative measures
agreement, a varied alternative measures
agreement or a report that is filed with the
court in accordance with section 111.
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| Information
exchange
agreements
|
118. The competent minister may enter into
an agreement with a department or agency of
a government in Canada respecting the
exchange of information for the purpose of
administering alternative measures or
preparing a report in respect of a person's
compliance with an alternative measures
agreement.
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| Regulations
|
119. The competent minister may make
regulations respecting the alternative
measures that may be used for the purposes of
this Act including regulations respecting
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(a) the form and manner in which and the
period within which an application to
participate in the alternative measures is to
be made, and the information that must be
contained in or accompany the application;
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(b) the manner of preparing and filing
reports relating to the administration of and
compliance with alternative measures
agreements;
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(c) the types of costs, and the manner of
paying the costs, associated with ensuring
compliance with alternative measures
agreements; and
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(d) the terms and conditions that may be
included in an alternative measures
agreement and the effects of those terms
and conditions.
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