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| Custody of
things seized
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87. (1) Subject to subsections (2) to (4), if an
enforcement officer seizes a thing under this
Act or under a warrant issued under the
Criminal Code,
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(a) sections 489.1 and 490 of the Criminal
Code apply; and
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(b) the enforcement officer, or any person
that the officer may designate, must retain
custody of the thing subject to any order
made under section 490 of the Criminal
Code.
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| Forfeiture if
ownership not
ascertainable
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(2) If the lawful ownership of or entitlement
to the seized thing cannot be ascertained
within 30 days after its seizure, the thing or
any proceeds of its disposition are forfeited to
Her Majesty in right of Canada, if the thing
was seized by an enforcement officer
employed in the public service of Canada or
by the government of a territory, or to Her
Majesty in right of a province, if the thing was
seized by an enforcement officer employed by
the government of that province.
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| Perishable
things
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(3) If the seized thing is perishable, the
enforcement officer may dispose of it or
destroy it, and any proceeds of its disposition
must be paid to the lawful owner or person
lawfully entitled to possession of the thing,
unless proceedings under this Act are
commenced within 90 days after its seizure, in
which case the proceeds must be retained by
the enforcement officer pending the outcome
of the proceedings.
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| Release of
individual
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(4) An enforcement officer who seizes an
individual of a species at risk may, at the time
of the seizure, return the individual to the wild
if the enforcement officer believes the
individual to be alive.
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| Abandonment
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(5) The owner of the seized thing may
abandon it to Her Majesty in right of Canada
or a province.
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| Disposition by
competent
minister
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88. Any thing that has been forfeited or
abandoned under this Act is to be dealt with
and disposed of as the competent minister may
direct.
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| Liability for
costs
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89. The lawful owner and any person
lawfully entitled to possession of any thing
seized, forfeited or abandoned under this Act
and who has been convicted of an offence
under this Act in relation to that thing, are
jointly and severally, or solidarily, liable for
all the costs of inspection, seizure,
abandonment, forfeiture or disposition
incurred by Her Majesty in excess of any
proceeds of disposition of the thing that have
been forfeited to Her Majesty under this Act.
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| Right of
passage
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90. An enforcement officer may, while
carrying out powers, duties or functions under
this Act, enter on and pass through or over
private property without being liable for
trespass or without the owner of the property
having the right to object to that use of the
property.
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| Assistance
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91. The owner or the person in charge of a
place entered by an enforcement officer under
section 86, and every person found in the
place, must
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(a) give the enforcement officer all
reasonable assistance to enable the
enforcement officer to carry out duties and
functions under this Act; and
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(b) provide the enforcement officer with
any information in relation to the
administration of this Act, the regulations
or an emergency order that the enforcement
officer may reasonably require.
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| Obstruction
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92. While an enforcement officer is
exercising powers or carrying out duties or
functions under this Act, no person shall
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(a) knowingly make any false or misleading
statement, either orally or in writing, to the
enforcement officer; or
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(b) otherwise obstruct or hinder the
enforcement officer.
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| Application
for
investigation
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93. (1) A person who is a resident of Canada
and at least 18 years of age may apply to the
competent minister for an investigation of
whether an alleged offence has been
committed or whether anything directed
towards its commission has been done.
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| Statement to
accompany
application
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(2) The application must be in a form
approved by the competent minister and must
include a solemn affirmation or declaration
containing
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(a) the name and address of the applicant;
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(b) a statement that the applicant is at least
18 years old and a resident of Canada;
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(c) a statement of the nature of the alleged
offence and the name of each person alleged
to be involved;
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(d) a summary of the evidence supporting
the allegations;
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(e) the name and address of each person
who might be able to give evidence about
the alleged offence, together with a
summary of the evidence that the person
might give, to the extent that information is
available to the applicant;
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(f) a description of any document or other
material that the applicant believes should
be considered in the investigation and, if
possible, a copy of the document; and
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(g) details of any previous contact between
the applicant and the competent minister
about the alleged offence.
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| Investigation
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94. (1) The competent minister must
acknowledge receipt of the application within
20 days after receiving it and, subject to
subsections (2) and (3), investigate all matters
that he or she considers necessary to
determine the facts relating to the alleged
offence.
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| Frivolous or
vexatious
applications
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(2) No investigation is required if the
competent minister decides that the
application is frivolous or vexatious.
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| Notice of
decision
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(3) If the competent minister decides not to
conduct an investigation, he or she must,
within 60 days after the application for
investigation is received, give notice of the
decision, with reasons, to the applicant.
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| When notice
need not be
given
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(4) The competent minister need not give
the notice if an investigation in relation to the
alleged offence is ongoing apart from the
application.
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| Competent
minister may
send evidence
to Attorney
General
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95. At any stage of the investigation, the
competent minister may send any documents
or other evidence to the Attorney General for
a consideration of whether an offence has been
or is about to be committed, and for any action
that the Attorney General may wish to take.
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| Suspension or
conclusion of
investigation
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96. (1) The competent minister may
suspend or conclude the investigation if he or
she is of the opinion that the alleged offence
does not require further investigation or the
investigation does not substantiate the alleged
offence or any other offence.
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| Report if
investigation
suspended
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(2) If the investigation is suspended, the
competent minister must prepare a written
report describing the information obtained
during the investigation and stating the
reasons for its suspension and the action, if
any, that the competent minister has taken or
proposes to take and send a copy of the report
to the applicant. The competent minister must
notify the applicant if the investigation is
subsequently resumed.
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| Report when
investigation
concluded
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(3) When the investigation is concluded,
the competent minister must prepare a written
report describing the information obtained
during the investigation and stating the
reasons for its conclusion and the action, if
any, that the competent minister has taken or
proposes to take and send a copy of the report
to the applicant and to each person whose
conduct was investigated.
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| Personal
information
not to be
disclosed
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(4) A copy of the report sent to a person
whose conduct was investigated must not
disclose the name or address of the applicant
or any other personal information about him
or her.
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| When report
need not be
sent
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(5) If another investigation in relation to the
alleged offence is ongoing apart from the
application, the competent minister need not
send copies of a report described in subsection
(2) or (3) until the other investigation is
suspended or concluded.
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| Contravention
s
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97. (1) Every person who contravenes
subsection 32(1) or (2), section 33, subsection
36(1), 58(1), 60(1), 61(1) or 74(1) or section
91 or 92 or any prescribed provision of a
regulation or an emergency order, or who fails
to comply with an alternative measures
agreement the person has entered into under
this Act,
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(a) is guilty of an offence punishable on
summary conviction and is liable
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(i) in the case of a corporation, other than
a non-profit corporation, to a fine of not
more than $300,000,
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(ii) in the case of a non-profit
corporation, to a fine of not more than
$50,000, and
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(iii) in the case of any other person, to a
fine of not more than $50,000 or to
imprisonment for a term of not more than
one year, or to both; or
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(b) is guilty of an indictable offence and is
liable
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(i) in the case of a corporation, other than
a non-profit corporation, to a fine of not
more than $1,000,000,
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(ii) in the case of a non-profit
corporation, to a fine of not more than
$250,000, and
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(iii) in the case of any other person, to a
fine of not more than $250,000 or to
imprisonment for a term of not more than
five years, or to both.
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| Prescription
of provisions
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(2) A regulation or emergency order may
prescribe which of its provisions may give rise
to an offence.
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| Subsequent
offence
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(3) If a person is convicted of an offence a
subsequent time, the amount of the fine for the
subsequent offence may, despite subsection
(1), be double the amount set out in that
subsection.
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| Continuing
offence
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(4) 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.
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| Fines
cumulative
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(5) 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.
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| Additional
fine
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(6) 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, 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, which
additional fine may exceed the maximum
amount of any fine that may otherwise be
imposed under this Act.
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(7) For the purposes of subparagraphs
(1)(a)(i), (ii) and (iii) and (b)(i), (ii) and (iii),
``non-profit corporation'' means a
corporation, no part of the income of which is
payable to, or is otherwise available for, the
personal benefit of any proprietor, member or
shareholder of the corporation.
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| Officers, etc.,
of
corporations
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98. If a corporation commits an offence, any
officer, director, agent or mandatory 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.
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| Offences by
employees or
agents
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99. In any prosecution for an offence, the
accused may be convicted of the offence if it
is established that it was committed by an
employee, agent or mandatory of the accused,
whether or not the employee, agent or
mandatory has been prosecuted for the
offence.
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| Due diligence
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100. Due diligence is a defence in a
prosecution for an offence.
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| Venue
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101. A prosecution for an offence may be
instituted, heard and determined in the place
where the offence was committed, the
subject-matter of the prosecution arose, the
accused was apprehended or the accused
happens to be or is carrying on business.
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| Sentencing
considerations
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102. 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) whether the offender was found to have
committed the offence intentionally,
recklessly or inadvertently;
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(c) 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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(d) 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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(e) any evidence from which the court may
reasonably conclude that the offender has a
history of non-compliance with legislation
designed to protect wildlife species; and
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(f) all available sanctions that are
reasonable in the circumstances, with
particular attention to the circumstances of
aboriginal offenders.
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| Forfeiture
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103. (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.
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| Return if no
forfeiture
ordered
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(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.
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| Retention or
sale
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104. 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.
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| Orders of
court
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105. 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 having any or all
of the following effects:
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(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;
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(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;
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(c) directing the person to have an
environmental audit conducted by a person
of a class and at the times specified by the
court and directing the person to remedy
any deficiencies revealed during the audit;
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(d) directing the person to publish, in any
manner that the court considers
appropriate, the facts relating to the
commission of the offence;
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(e) directing the person to perform
community service in accordance with any
conditions that the court considers
reasonable;
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(f) directing the person to submit to the
competent minister, on application to the
court by the competent minister within
three years after the conviction, any
information about the activities of the
person that the court considers appropriate;
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(g) directing the person to pay a competent
minister or the government of a province or
a territory 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
competent minister or that government as a
result of the commission of the offence;
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(h) directing the person to pay, in the
manner prescribed by the court, an amount
for the purpose of conducting research into
the protection of the wildlife species in
respect of which the offence was
committed;
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(i) directing the person to pay, in the manner
prescribed by the court, an amount to an
educational institution for scholarships for
students enrolled in environmental studies;
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(j) directing the person to post a bond or pay
to the court an amount that the court
considers appropriate for the purpose of
ensuring compliance with any prohibition,
direction or requirement under this section;
and
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(k) 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.
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| Suspended
sentence
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106. (1) If a person is convicted of an
offence and the court suspends the passing of
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 105.
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| Imposition of
sentence
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(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.
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| Limitation
period
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107. (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 competent minister.
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| Competent
minister's
certificate
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(2) A document appearing to have been
issued by the competent minister, certifying
the day on which the subject-matter of any
proceedings became known to the competent
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.
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