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Bill C-32

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Federal Court

Appeal to Federal Court

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.

Standing on appeal to Federal Court

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.

Order not suspended

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.

Offences and Punishment

Contraven-
tion of the Act, the regulations or agreements

272. (1) Every person commits an offence who contravenes

    (a) a provision of this Act or the regulations;

    (b) an obligation or a prohibition arising from this Act or the regulations;

    (c) an order or a direction made under this Act;

    (d) an order, direction or decision of a court made under this Act; or

    (e) an agreement respecting environmental protection alternative measures within the meaning of section 295.

Penalties

(2) Every person who commits an offence under subsection (1) is liable

    (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

    (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.

False or misleading information, etc.

273. (1) Every person commits an offence who, for the purpose of complying with this Act or the regulations,

    (a) provides any person with any false or misleading information, results or samples; or

    (b) files a document that contains false or misleading information.

Penalties

(2) Every person who commits an offence under subsection (1) is liable

    (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;

    (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;

    (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

    (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.

Damage to environment and risk of death or harm to persons

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),

    (a) intentionally or recklessly causes a disaster that results in a loss of the use of the environment; or

    (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.

Criminal negligence

(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.

Limitation period

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.

Minister's certificate

(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.

Continuing offence

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.

Construction of subsection 389(5) of Canada Shipping Act

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.

Regulations

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.

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

    (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

    (b) shall be tried in the same manner as if it had been committed within that territorial division.

Where offence deemed to have been committed

(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.

Any court has jurisdiction for Division 3 of Part 7 offences

(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

    (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

    (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.

Liability of directors

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.

Duties of directors

(2) Every director and officer of a corporation shall take all reasonable care to ensure that the corporation complies with

    (a) this Act and the regulations; and

    (b) orders and directions of, and prohibitions and requirements imposed by, the Minister and inspectors, investigators and review officers.

Identifying owner, master, etc.

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.

Proof of offence

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.

Proof of offence

(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.

Defence

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.

Importing substances by analysts

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.

Certificate of analyst

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.

Attendance of analyst

(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.

Notice

(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.

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.

Sentencing Criteria

Sentencing considera-
tions

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:

    (a) the harm or risk of harm caused by the commission of the offence;

    (b) an estimate of the total costs to remedy or reduce any damages caused by the commission of the offence;

    (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;

    (d) whether any reporting requirements under this Act or the regulations were complied with by the offender;

    (e) whether the offender was found to have committed the offence intentionally, recklessly or inadvertently;

    (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;

    (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;

    (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

    (i) all available sanctions that are reasonable in the circumstances, with particular attention to the circumstances of aboriginal offenders.

Discharge

Absolute or conditional discharge

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).

Conditions of order

(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.

Suspended sentence

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.

Application by prosecutor

(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.

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.

Orders of court

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:

    (a) prohibiting the offender from doing any act or engaging in any activity that may result in the continuation or repetition of the offence;

    (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;

    (c) directing the offender to prepare and implement a pollution prevention plan or an environmental emergency plan;

    (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;

    (e) directing the offender to implement an environmental management system that meets a recognized Canadian or international standard;

    (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;

    (g) directing the offender to publish, in the manner directed by the court, the facts relating to the conviction;

    (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;

    (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;

    (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;

    (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;

    (l) directing the offender to perform community service, subject to any reasonable conditions that may be imposed in the order;

    (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;

    (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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