Bill C-65

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	ENDANGERED SPECIES PROTECTION ACTION
Circumstances in which a person may bring an action	60. (1) A person who has applied for an investigation may bring an endangered species protection action if
	(a) the responsible minister has decided not to conduct the investigation and has given a justification for the decision that is not reasonable;
	(b) the responsible minister has, without giving notice required by subsection 57(3), not conducted and reported on the investigation within a reasonable time;
	(c) the responsible minister's reasons for suspending or concluding the investigation are unreasonable; or
	(d) the responsible minister's response to the investigation is unreasonable.
Nature of the action	(2) The action may be brought in any court of competent jurisdiction against a person who committed, or has done anything directed towards the commission of, an offence that
	(a) was alleged in the application for the investigation; and
	(b) caused or will cause significant harm to a listed endangered or threatened species or its critical habitat.
Relief that may be claimed	(3) In the action, the person may claim any or all of the following:
	(a) a declaratory order;
	(b) an order, including an interlocutory order, requiring the defendant to refrain from doing anything that, in the opinion of the court, may constitute or be directed towards an offence;
	(c) an order, including an interlocutory order, requiring the defendant to do anything that, in the opinion of the court, may prevent an offence;
	(d) an order to the parties to negotiate corrective measures with respect to the significant harm resulting from the offence and to report to the court on the negotiations within a time set by the court; and
	(e) any other appropriate relief, including the costs of the action, but not including damages.
Limitation period of two years	61. (1) An endangered species protection action may be brought only within a limitation period of two years beginning when the plaintiff becomes aware of the conduct on which the action is based, or should have become aware of it.
Time during investigation not included	(2) The limitation period does not include any time following the plaintiff's application for an investigation, but before the plaintiff receives a report under subsection 59(2) or (3).
No action for remedial conduct	62. An endangered species protection action may not be brought if the alleged conduct was or will be
	(a) taken to protect a listed endangered or threatened species or its habitat or to protect the environment, national security, safety or health, including animal and plant health; and
	(b) reasonable and consistent with public safety.


Notice of the action	63. (1) The plaintiff in an endangered species protection action must give notice of the action in the public registry no later than ten days after the document originating the action is first served on a defendant.
Notice of other matters	(2) The court may order any party to the action to give notice in the public registry of any other matter relating to the action.
Attorney General to be served	64. (1) A plaintiff must serve the Attorney General with a copy of the document originating an endangered species protection action within ten days after first serving the document on a defendant.
Attorney General may participate	(2) The Attorney General is entitled to participate in the action, either as a party or otherwise. Notice of a decision of the Attorney General to participate must be given to the plaintiff and the public registry within 45 days after the copy of the originating document is served on the Attorney General.
Right of appeal	(3) The Attorney General is entitled to appeal from a judgment in the action and to make submissions and present evidence in an appeal.
Other participants	65. (1) The court may allow any person to participate in an endangered species protection action in order to provide fair and adequate representation of the private and public interests involved, including governmental interests.
Manner and terms of participation	(2) The court may determine the manner and terms of the person's participation, including the payment of costs.
Burden of proof	66. The burden of proof in an endangered species protection action is on a balance of probabilities.
Defence of due diligence	67. (1) The defence of due diligence in complying with this Act, the regulations or an emergency order is available in an endangered species protection action.
Other defences not excluded	(2) This section does not limit the availability of any other defence.
Undertakings to pay damages	68. In deciding whether to dispense with an undertaking to pay damages caused by an interlocutory order, the court in an endangered species protection action may consider any special circumstances, including whether the action is a test case or raises a novel point of law.
Remedies	69. If a court finds that the plaintiff is entitled to judgment in an endangered species protection action, it may grant any relief mentioned in subsection 60(3).
Orders to negotiate corrective measures	70. (1) A court order to negotiate corrective measures with respect to significant harm caused by an offence may include the following measures to the extent that they are reasonable, practical and ecologically sound:
	(a) measures for the prevention, reduction or elimination of the harm or the risk of harm;
	(b) measures to assist in the recovery of the species involved and its habitat; and
	(c) the payment of money by the defendant, as the court may direct to achieve the purposes of the measures.
	Before making the order, the court must take into account any efforts that the defendant has already made to deal with the harm or risk of harm.
Other orders	(2) The court may also make interlocutory or ancillary orders to ensure that the negotiation of the corrective measures runs smoothly, including orders
	(a) for the payment of the costs of negotiation;
	(b) requiring any party to prepare a draft of the measures; and
	(c) setting a time limit for the negotiations.
Appointment of other person to prepare measures	(3) The court may appoint a person who is not a party to prepare draft corrective measures if the parties cannot agree on the measures or the court is not satisfied with the measures that they negotiate.
Order to prepare other measures	(4) The court may order the parties to prepare other corrective measures if it is not satisfied with the measures that they negotiate.
Approval and effective date	(5) The court may approve corrective measures that the parties negotiate or corrective measures prepared by a person appointed under subsection (3) and the approved measures come into effect on a day determined by the court.
Restriction on orders to negotiate corrective measures	71. A court may not order the negotiation of corrective measures if it determines that
	(a) the objectives mentioned in paragraphs 70(1)(a) to (c) have already been achieved; or
	(b) corrective measures that meet the same objectives have already been ordered under this Act or any other law in force in Canada.
Settlement or discontinu- ance	72. An endangered species protection action may be settled or discontinued only with the approval of the court and on terms that it considers appropriate.
Settlements and orders binding	73. If an endangered species protection action results in a final order of a court or a settlement approved by a court,
	(a) the resolution of any question of fact by the order or settlement is binding on a court in any other endangered species protection action in which it arises; and
	(b) no other endangered species protection action may be brought with respect to the facts of the offence dealt with by the order or settlement.
Costs	74. In deciding whether to award costs in an endangered species protection action, the court may consider any special circumstances, including whether the action is a test case or raises a novel point of law.
Evidence of offence	75. (1) In an endangered species protection action, the record of proceedings in any court in which the defendant was convicted of an offence is evidence that the defendant committed the offence.
Certificate evidence of conviction	(2) In the action, evidence that a defendant was convicted of an offence may be given by a certificate stating with reasonable particularity the defendant's conviction and sentence.
Signature on certificate	(3) The certificate must be signed by
	(a) the judge or other person who made the conviction; or
	(b) the clerk of the court in which the conviction was made.
	Once it is proved that the defendant is the offender mentioned in the certificate, it is evidence without proof of the signature or the official character of the person appearing to have signed it.
Civil remedies not affected	76. (1) No civil remedy for any conduct is suspended or affected by reason only that the conduct is an offence.
Remedies not repealed, etc.	(2) Nothing in this Act may be interpreted so as to repeal, remove or reduce any remedy available to any person under any law in force in Canada.
	OFFENCES AND PUNISHMENT
Contraven- tions	77. (1) Every person who contravenes section 31 or 32 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 $100,000, 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 $500,000, 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	78. 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	79. 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	80. No person may be found guilty of an offence if the person establishes that they exercised all due diligence to prevent its commission.
Venue	81. 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	82. (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	83. 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	84. 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;

Bill C-65

ENDANGERED SPECIES PROTECTION ACTION

OFFENCES AND PUNISHMENT