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Bill C-5

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Investigations

Application for investigation

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.

Statement to accompany application

(2) The application must be in a form approved by the competent minister and must include a solemn affirmation or declaration containing

    (a) the name and address of the applicant;

    (b) a statement that the applicant is at least 18 years old and a resident of Canada;

    (c) a statement of the nature of the alleged offence and the name of each person alleged to be involved;

    (d) a summary of the evidence supporting the allegations;

    (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;

    (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

    (g) details of any previous contact between the applicant and the competent minister about the alleged offence.

Investigation

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.

Frivolous or vexatious applications

(2) No investigation is required if the competent minister decides that the application is frivolous or vexatious.

Notice of decision

(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.

When notice need not be given

(4) The competent minister need not give the notice if an investigation in relation to the alleged offence is ongoing apart from the application.

Competent minister may send evidence to Attorney General

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.

Suspension or conclusion of investigation

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.

Report if investigation suspended

(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.

Report when investigation concluded

(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.

Personal information not to be disclosed

(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.

When report need not be sent

(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.

OFFENCES AND PUNISHMENT

Contraven-
tions

97. (1) Every person who contravenes subsection 32(1) or (2), section 33, subsection 36(1), 58(1), 60(1) or 61(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,

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

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

      (ii) 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

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

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

      (ii) 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.

Prescription of provisions

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

Subsequent offence

(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.

Continuing offence

(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.

Fines cumulative

(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.

Additional fine

(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.

Officers, etc., of corporations

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.

Offences by employees or agents

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.

Due diligence

100. Due diligence is a defence in a prosecution for an offence.

Venue

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.

Sentencing considera-
tions

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:

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

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

    (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;

    (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;

    (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

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

Forfeiture

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.

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

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.

Orders of court

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:

    (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 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;

    (d) directing the person to publish, in any manner that the court considers appropriate, the facts relating to 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 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;

    (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;

    (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;

    (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;

    (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

    (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.

Suspended sentence

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.

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

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.

Competent minister's certificate

(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.

References to the competent minister

(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.

ALTERNATIVE MEASURES

When alternative measures may be used

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:

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

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

    (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,

      (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 applies, in accordance with regulations made under paragraph 119(a), 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 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;

    (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 may 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

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