Bill C-16

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C-16

Second Session, Fortieth Parliament,

57-58 Elizabeth II, 2009

HOUSE OF COMMONS OF CANADA

BILL C-16

An Act to amend certain Acts that relate to the environment and to enact provisions respecting the enforcement of certain Acts that relate to the environment

first reading, March 4, 2009

MINISTER OF THE ENVIRONMENT

90456

RECOMMENDATION

Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend certain Acts that relate to the environment and to enact provisions respecting the enforcement of certain Acts that relate to the environment”.

SUMMARY

This enactment amends certain enforcement, offence, penalty and sentencing provisions of the following Acts:

(a) the Antarctic Environmental Protection Act;

(b) the Canada National Marine Conservation Areas Act;

(d) the Canada Wildlife Act;

(e) the Canadian Environmental Protection Act, 1999;

(f) the International River Improvements Act;

(g) the Migratory Birds Convention Act, 1994;

(h) the Saguenay-St. Lawrence Marine Park Act; and

(i) the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.

It adds enforcement officer immunity to the Acts that did not expressly provide any. It also adds the power to designate analysts for the purposes of the Canada Wildlife Act and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. It also adds inspection and search and seizure powers to the International River Improvements Act.

It amends the penalty provisions of the Acts by establishing distinct ranges of fines for different offences, by creating minimum fines for the most serious offences, by increasing maximum fines, by specifying ranges of fines for individuals, other persons, small revenue corporations and ships of different sizes and by doubling the fine amounts for second and subsequent offenders.

It amends the Acts to make the liability and duty provisions of directors, officers, agents and mandataries of corporations, and those of ship masters, chief engineers, owners and operators, consistent between the Acts.

The enactment amends the sentencing provisions of the Acts by adding a purpose clause, by specifying aggravating factors that, if associated with an offence, must contribute to higher fines, by requiring courts to add profits gained or benefits realized from the commission of an offence to fine amounts, by requiring courts to order corporate offenders to disclose details of convictions to their shareholders and by expanding the power of the courts to make additional orders having regard to the nature of the offence and the circumstances surrounding its commission.

The enactment adds to each of the Acts a requirement that details of convictions of corporations be made available to the public and that all fines collected be credited to the Environmental Damages Fund and be available for environmental projects or the administration of that Fund.

This enactment also creates the Environmental Violations Administrative Monetary Penalties Act which establishes an administrative monetary penalty scheme applicable to the Acts listed above as well as to the Canada Water Act.

Also available on the Parliament of Canada Web Site at the following address:
http://www.parl.gc.ca

TABLE OF PROVISIONS

AN ACT TO AMEND CERTAIN ACTS THAT RELATE TO THE ENVIRONMENT AND TO ENACT PROVISIONS RESPECTING THE ENFORCEMENT OF CERTAIN ACTS THAT RELATE TO THE ENVIRONMENT

SHORT TITLE

1. Environmental Enforcement Act

ANTARCTIC ENVIRONMENTAL PROTECTION ACT

2-19. Amendments

CANADA NATIONAL MARINE CONSERVATION AREAS ACT

20-28. Amendments

CANADA NATIONAL PARKS ACT

29-40. Amendments

CANADA WILDLIFE ACT

41-51. Amendments

CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

52-88. Amendments

INTERNATIONAL RIVER IMPROVEMENTS ACT

89-93. Amendments

MIGRATORY BIRDS CONVENTION ACT, 1994

94-107. Amendments

SAGUENAY-ST. LAWRENCE MARINE PARK ACT

108-115. Amendments

WILD ANIMAL AND PLANT PROTECTION AND REGULATION OF INTERNATIONAL AND INTERPROVINCIAL TRADE ACT

116-125. Amendments

ENACTMENT OF THE ENVIRONMENTAL VIOLATIONS ADMINISTRATIVE MONETARY PENALTIES ACT

126. Enactment of Act

AN ACT TO ESTABLISH A SYSTEM OF ADMINISTRATIVE MONETARY PENALTIES FOR THE ENFORCEMENT OF THE ANTARCTIC ENVIRONMENTAL PROTECTION ACT, THE CANADA NATIONAL MARINE CONSERVATION AREAS ACT, THE CANADA NATIONAL PARKS ACT, THE CANADA WATER ACT, THE CANADA WILDLIFE ACT, THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999, THE INTERNATIONAL RIVER IMPROVEMENTS ACT, THE MIGRATORY BIRDS CONVENTION ACT, 1994, THE SAGUENAY-ST. LAWRENCE MARINE PARK ACT, AND THE WILD ANIMAL AND PLANT PROTECTION AND REGULATION OF INTERNATIONAL AND INTERPROVINCIAL TRADE ACT

SHORT TITLE

1. Environmental Violations Administrative Monetary Penalties Act

INTERPRETATION

2. Definitions

PURPOSE OF ACT

3. Purpose of Act

HER MAJESTY

4. Binding on Her Majesty

REGULATIONS

5. Regulations

MINISTER’S POWERS

6. Powers regarding notices of violation

COMMISSION OF VIOLATIONS

7. Commission

8. Liability of directors, officers, etc. of corporations

9. Proof of violations — persons

10. Issuance and service of notice of violation

RULES ABOUT VIOLATIONS

11. Certain defences not available

12. Continuing violation

13. Violation or offence

14. Limitation period

REVIEWS

15. Right to request review

16. Variation or cancellation of notice of violation

17. Review

18. Right to appear

19. Witnesses

20. Decision

21. Service of copy and reasons

22. Responsibility

23. Determination is final

24. Rules

RESPONSIBILITY

25. Payment

26. Failure to act

RECOVERY OF PENALTIES

27. Debts to Her Majesty

28. Certificate

GENERAL

29. Admissibility of documents

COORDINATING AMENDMENT

127. Contraventions Act

COMING INTO FORCE

128. Order in council

2nd Session, 40th Parliament,

57-58 Elizabeth II, 2009

house of commons of canada

BILL C-16

An Act to amend certain Acts that relate to the environment and to enact provisions respecting the enforcement of certain Acts that relate to the environment

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Short title

1. This Act may be cited as the Environmental Enforcement Act.

2003, c. 20

ANTARCTIC ENVIRONMENTAL PROTECTION ACT

2. (1) Paragraph (b) of the definition “Canadian” in subsection 2(1) of the English version of the Antarctic Environmental Protection Act is replaced by the following:

(b) a corporation established or continued under the laws of Canada or a province.

(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

“Chief Review Officer”
« réviseur-chef »

“Chief Review Officer” means the review officer appointed as Chief Review Officer under subsection 244(1) of the Canadian Environmental Protection Act, 1999 and includes any review officer designated under subsection 244(3) of that Act to perform the functions of the Chief Review Officer.

“vessel”
« bâtiment »

“vessel” means a boat, ship or craft designed, used or capable of being used solely or partly for navigation in, on, through or immediately above water, without regard to the method or lack of propulsion, but does not include a fixed platform.

3. (1) Paragraph 26(1)(c) of the French version of the Act is replaced by the following:

c) régir la délivrance, le renouvellement, l’annulation et la suspension des permis et les conditions dont le ministre peut assortir les permis;

(2) Subsection 26(1) of the Act is amended by striking out “and” at the end of paragraph (j) and by adding the following after that paragraph:

(j.1) designating provisions of the regulations for the purposes of paragraphs 50(1)(b) and 50.3(1)(b); and

4. The Act is amended by adding the following after section 29:

Immunity

29.1 Enforcement officers and analysts are not personally liable for anything they do or omit to do in good faith under this Act.

5. (1) Subsection 30(7) of the Act is replaced by the following:

Stopping and detaining conveyances

(7) For the purposes of this Act, an enforcement officer may, at any reasonable time, direct that any conveyance be stopped — or be moved, by the route and in the manner that the officer may specify, to a place specified by the officer where an inspection can be carried out — and the officer may, for a reasonable time, detain any conveyance.

(2) Paragraph 30(8)(a) of the Act is replaced by the following:

(a) direct that the vessel be stopped — or be moved, by the route and in the manner that the officer may specify, to a place specified by the officer where an inspection can be carried out — and the officer may, for a reasonable time, detain the vessel;

(3) Subsection 30(11) of the Act is replaced by the following:

Disposition of samples

(11) An enforcement officer or analyst may dispose of a sample taken under paragraph (9)(d) in any manner that the officer or analyst considers appropriate.

6. Subsection 32(2) of the Act is replaced by the following:

Warrant for seizure of vessel or aircraft

(2) If, on ex parte application, a justice is satisfied by information on oath that there are reasonable grounds to believe that an offence has been committed by a Canadian vessel or any other vessel or the pilot in command of a Canadian aircraft, he or she may issue a warrant authorizing an enforcement officer, or authorizing any other person named in the warrant, to seize the vessel or aircraft anywhere in Canada.

7. The heading before section 37 of the Act is replaced by the following:

Detention of Vessels

8. (1) Subsection 37(1) of the Act is replaced by the following:

Detention

37. (1) An enforcement officer may make a detention order in respect of a Canadian vessel, or any other vessel in Canada, if the enforcement officer has reasonable grounds to believe that

(a) the vessel has committed an offence under this Act; or

(b) an authorized representative of the Canadian vessel or of the other vessel, or the master of the Canadian vessel, has committed an offence under this Act and that the vessel was used in connection with the commission of the offence.

(2) Subsection 37(6) of the Act is replaced by the following:

When clearance given

(6) A person to whom a detention order is addressed and who has received notice of the order may give clearance in respect of the vessel to which the order relates if

(a) the vessel or the authorized representative or master of the vessel, as the case may be,

(i) has not, within 30 days after the day on which the order was made, been charged with the offence that gave rise to the order, or

(ii) has, within 30 days after the day on which the order was made, been charged with that offence and appears in Canada to answer to the charge;

(b) security for payment of the maximum fine that might be imposed as a result of a conviction of the vessel or the person charged with that offence and of costs related to proceedings in connection with the charge, or security for payment of any lesser amount that is approved by the Minister or a person designated by the Minister for the purpose, is given to Her Majesty in right of Canada; or

Foreign state to be notified

(7) If a vessel to which a detention order relates is registered in a foreign state, that state is to be notified that the order was made.

9. The Act is amended by adding the following after section 37:

Direction of Vessels

Power to direct

37.01 An enforcement officer may direct a Canadian vessel, or any other vessel in Canada, to proceed, by the route and in the manner that the enforcement officer may specify, to any place specified by the enforcement officer if the officer has reasonable grounds to believe that

(a) the vessel is committing, has committed or is about to commit an offence under this Act; or

(b) a person on board the vessel is committing, has committed or is about to commit such an offence and the vessel was, is being or is about to be used in connection with the commission of the offence.

Environmental Protection Compliance Orders

Meaning of “order”

37.02 For the purpose of sections 37.03 to 37.12, “order” means an environmental protection compliance order issued under section 37.03.

Order

37.03 (1) Whenever, during the course of an inspection or a search, an enforcement officer has reasonable grounds to believe that any provision of this Act or the regulations has been contravened by a person who is continuing the commission of the offence, or that any of those provisions are likely to be contravened, the enforcement officer may issue an environmental protection compliance order directing any person described in subsection (2) to take any of the measures referred to in subsection (3) that are reasonable in the circumstances and consistent with the protection of the Antarctic environment and dependent and associated ecosystems, and with public safety, in order to cease or refrain from committing the alleged contravention.

Persons subject to order

(2) Subsection (1) applies to

(a) any person who causes or contributes to the alleged contravention;

(b) any person who is likely to cause or contribute to the alleged contravention; or

(c) in the case of an alleged contravention by a person to whom a permit applies, any person to whom that permit applies.

Specific measures

(3) The order may specify that the person to whom the order is directed take one or more of the following measures:

(a) refrain from doing anything in contravention of this Act or the regulations, or do anything to comply with this Act or the regulations;

(b) stop or shut down any activity, work, undertaking or thing for a specified period;

(c) cease the operation of any activity or any part of a work, undertaking or thing until the enforcement officer is satisfied that the activity, work, undertaking or thing will be operated in accordance with this Act and the regulations;

(d) move any conveyance to another location including, in the case of a Canadian vessel, moving the vessel into port or, in the case of an aircraft, landing the aircraft;

(e) unload or reload the contents of any conveyance; and

(f) take any other measure that the enforcement officer considers necessary to facilitate compliance with the order — or to restore the components of the environment damaged by the alleged contravention or to protect the components of the environment put at risk by the alleged contravention — including, but not limited to,

(i) maintaining records on any relevant matter,

(ii) reporting periodically to the enforcement officer, and

(iii) submitting to the enforcement officer any information, proposal or plan specified by the enforcement officer that sets out any action to be taken by the person with respect to the subject matter of the order.

Contents of order

(4) Subject to section 37.04, an order must be made in writing and must set out

(a) the name of the person or persons to whom it is directed;

(b) the provision of this Act or the regulations that is alleged to have been or that is likely to be contravened;

(d) the measures to be taken;

(e) the time or the day when each measure is to begin or the period during which it is to be carried out;

(f) subject to subsection (5), the duration of the order;

(g) a statement that a request for a review may be made to the Chief Review Officer; and

(h) the period within which a request for a review may be made.

Duration of order

(5) An order may not be in force for a period of more than 180 days.

Failing to file report

(6) For the purposes of subsection (1), a person who commits an offence by failing to file a report required by this Act or the regulations is deemed to be continuing the commission of the offence each day that the report is not filed.

Statutory Instruments Act

(7) An order is not a statutory instrument for the purposes of the Statutory Instruments Act.

Exigent circumstances

37.04 (1) In the case of exigent circumstances, an order may be given orally on the condition that it is followed, within seven days, by a written order issued in accordance with section 37.03.

Meaning of “exigent circumstances”

(2) For greater certainty, “exigent circumstances” includes circumstances in which the delay necessary to issue a written order that meets the requirements of subsection 37.03(4) would result in danger to human life or the environment.

Notice of intent

37.05 (1) Except in exigent circumstances, an enforcement officer shall, whenever practicable, before issuing an order,

(a) provide every person who will be subject to the order with an oral or written notice of the officer’s intention to issue it; and

(b) allow a reasonable opportunity in the circumstances for the person to make oral representations.

Contents of notice of intent

(2) The notice of intent to issue the order must include

(a) a statement of the purpose of the notice;

(b) a reference to the statutory authority under which the order is to be issued; and

(c) a statement that the party notified may make oral representations to the enforcement officer within the period stated in the notice.

Compliance with order

37.06 (1) A person to whom an order is directed shall, immediately on receipt of the order or a copy of it or on being directed by an enforcement officer in an order given orally under subsection 37.04(1), comply with the order.

No bar to proceedings

(2) The issuance of or compliance with an order in respect of a person’s alleged contravention of this Act or the regulations is not a bar to any proceedings against the person under this or any other Act in relation to the alleged contravention.

Intervention by enforcement officer

37.07 (1) If a person to whom an order is directed fails to take any measures specified in the order, an enforcement officer may take the measures or cause them to be taken.

Access to property

(2) An enforcement officer or other person authorized or required by an enforcement officer to take measures under subsection (1) may enter and have access to any place or property and may do any reasonable thing that may be necessary in the circumstances.

Personal liability

(3) Any person, other than a person described in paragraph 37.03(2)(a) or (b), who provides assistance or advice in taking the measures specified in an order or who takes any measures authorized or required by an enforcement officer under subsection (1) is not personally liable either civilly or criminally in respect of any act or omission in the course of providing assistance or advice or taking any measures under that subsection unless it is established that the person acted in bad faith.

Recovery of reasonable costs and expenses by Her Majesty

37.08 (1) Her Majesty in right of Canada may recover the costs and expenses of and incidental to any measures taken under subsection 37.07(1) from any person referred to in paragraph 37.03(2)(a) to the extent of the person’s negligence in causing or contributing to the alleged contravention.

Costs must have been reasonably incurred

(2) The costs and expenses may only be recovered to the extent that they can be established to have been reasonably incurred in the circumstances.

Liability

(3) The persons referred to in subsection (1) are jointly and severally, or solidarily, liable for the costs and expenses referred to in that subsection.

Procedure

(4) A claim under this section may be sued for and recovered by Her Majesty in right of Canada with costs in proceedings brought or taken in the name of Her Majesty in right of Canada in any court of competent jurisdiction.

Recourse or indemnity

(5) This section does not limit or restrict any right of recourse or indemnity that a person may have against any other person.

Limitation period

(6) If events giving rise to a claim under this section occur, no proceedings in respect of the claim may be instituted more than five years after the day on which the events occur or become evident to the Minister, whichever is later.

Minister’s certificate

(7) A document purporting to have been issued by the Minister certifying the day on which the events giving rise to a claim under this section came to the knowledge of the Minister shall be received in evidence and, in the absence of any evidence to the contrary, the document is to 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.

Request for review

37.09 (1) Any person to whom an order is directed may, by notice in writing given to the Chief Review Officer within 30 days after the day on which the person receives a copy of the written order or after the oral order is given, make a request to the Chief Review Officer for a review of the order.

Extension of period for request

(2) The Chief Review Officer may extend the period within which a request for a review may be made if, in his or her opinion, it is in the public interest to do so.

Variation or cancellation of order

37.1 (1) At any time before a notice requesting a review of an order is received by the Chief Review Officer, the enforcement officer may, after giving reasonable notice,

(a) amend or suspend a term or condition of the order, or add a term or condition to, or delete a term or condition from, the order;

(b) cancel the order;

(d) extend the duration of the order for a period of not more than 180 days less the number of days that have passed since the day on which the order was received by the person who is subject to it.

Notice of intent

(2) Except in exigent circumstances, an enforcement officer shall, whenever practicable, before exercising a power under paragraph (1)(a) or (d),

(a) provide every person who will be subject to the order with an oral or written notice of the officer’s intention to exercise the power; and

(b) allow a reasonable opportunity in the circumstances for the person to make oral representations.

Contents of notice of intent

(3) The notice of intent to exercise a power under paragraph (1)(a) must include

(a) a statement of the purpose of the notice;

(b) a reference to the statutory authority under which the power is to be exercised; and

(c) a statement that the party notified may make oral representations to the enforcement officer within the period stated in the notice.

Regulations

37.11 The Minister may make regulations

(a) prescribing the form of reporting to enforcement officers under subparagraph 37.03(3)(f)(ii) and specifying the information required to be contained in or to accompany the report; and

(b) of either particular or general application, respecting representations made to enforcement officers under paragraph 37.05(1)(b) or 37.1(2)(b).

Review

37.12 Sections 257 to 271 of the Canadian Environmental Protection Act, 1999 apply, with any modifications that the circumstances require, to a review requested of any order.

10. The Act is amended by adding the following after section 44:

Liability for Costs

Liability for costs

44.1 If a thing is seized under this Act, the person who owned the thing at the time it was seized, the person who had charge or control of the thing immediately before it was seized and the person who possessed it immediately before it was seized are jointly and severally, or solidarily, liable for all the costs of seizure, detention, maintenance and forfeiture, including any destruction or disposal costs, incurred by Her Majesty in right of Canada in relation to the thing in excess of any proceeds of its disposition, if any.

11. The Act is amended by adding the following after section 46:

Immunity

46.1 Inspectors are not personally liable for anything they do or omit to do in good faith under this Act.

12. Sections 49 to 52 of the Act are replaced by the following:

Knowingly providing false or misleading information, etc.

49. (1) No person in Canada, and no Canadian or permit holder in the Antarctic, shall, with respect to any matter related to this Act, knowingly

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

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

Negligently providing false or misleading information, etc.

(2) No person in Canada, and no Canadian or permit holder in the Antarctic, shall, with respect to any matter related to this Act, negligently

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

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

Offence — persons

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

(a) section 11, subsection 12(1) or 13(1), section 14, 16, 17 or 20, subsection 37(4) or 37.06(1), section 48 or subsection 49(1);

(b) any provision of the regulations designated by regulations made under paragraph 26(1)(j.1); or

Penalty — individuals

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

(a) on conviction on indictment,

(i) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both, and

(ii) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000 or to imprisonment for a term of not more than five years, or to both; or

(b) on summary conviction,

(i) for a first offence, to a fine of not less than $5,000 and not more than $300,000 or to imprisonment for a term of not more than six months, or to both, and

(ii) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000 or to imprisonment for a term of not more than one year, or to both.

Penalty — other persons

(3) Every person, other than an individual or a corporation referred to in subsection (4), that commits an offence under subsection (1) is liable,

(a) on conviction on indictment,

(i) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and

(ii) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000; or

(b) on summary conviction,

(i) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and

(ii) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000.

Penalty — small revenue corporations

(4) Every corporation that commits an offence under subsection (1) and that the court determines under section 50.2 to be a small revenue corporation is liable,

(a) on conviction on indictment,

(i) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and

(ii) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or

(b) on summary conviction,

(i) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and

(ii) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.

Offence — persons

50.1 (1) Every person commits an offence who contravenes

(a) any provision of this Act or the regulations, other than a provision whose contravention is an offence under subsection 50(1); or

(b) any obligation arising from this Act, whose contravention is not an offence under subsection 50(1).

Penalty — individuals

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

(a) on conviction on indictment,

(i) for a first offence, to a fine of not more than $100,000, and

(ii) for a second or subsequent offence, to a fine of not more than $200,000; or

(b) on summary conviction,

(i) for a first offence, to a fine of not more than $25,000, and

(ii) for a second or subsequent offence, to a fine of not more than $50,000.

Penalty — other persons

(3) Every person, other than an individual or a corporation referred to in subsection (4), that commits an offence under subsection (1) is liable,

(a) on conviction on indictment,

(i) for a first offence, to a fine of not more than $500,000, and

(ii) for a second or subsequent offence, to a fine of not more than $1,000,000; or

(b) on summary conviction,

(i) for a first offence, to a fine of not more than $250,000, and

(ii) for a second or subsequent offence, to a fine of not more than $500,000.

Penalty — small revenue corporations

(4) Every corporation that commits an offence under subsection (1) and that the court determines under section 50.2 to be a small revenue corporation is liable,

(a) on conviction on indictment,

(i) for a first offence, to a fine of not more than $250,000, and

(ii) for a second or subsequent offence, to a fine of not more than $500,000; or

(b) on summary conviction,

(i) for a first offence, to a fine of not more than $50,000, and

(ii) for a second or subsequent offence, to a fine of not more than $100,000.

Determination of small revenue corporation status

50.2 For the purpose of sections 50 and 50.1, a court may determine a corporation to be a small revenue corporation if the court is satisfied that the corporation’s gross revenues for the 12 months immediately before the day on which the subject matter of the proceedings arose — or, if it arose on more than one day, for the 12 months immediately before the first day on which the subject matter of the proceedings arose — were not more than $5,000,000.

Offence — vessels

50.3 (1) Every Canadian vessel or other vessel commits an offence that contravenes

(a) subsection 9(1), section 11, subsection 13(1), any of sections 14 to 16, any of subsections 18(1) to (3) or section 20;

(b) any provision of the regulations designated by regulations made under paragraph 26(1)(j.1); or

Penalty — vessels of 7 500 tonnes deadweight or over

(2) Every Canadian vessel or other vessel of 7 500 tonnes deadweight or over that commits an offence under subsection (1) is liable,

(a) on conviction on indictment,

(i) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and

(ii) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000; or

(b) on summary conviction,

(i) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and

(ii) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000.

Penalty — other vessels

(3) Every Canadian vessel or other vessel of less than 7 500 tonnes deadweight that commits an offence under subsection (1) is liable,

(a) on conviction on indictment,

(i) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and

(ii) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or

(b) on summary conviction,

(i) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and

(ii) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.

Offences — vessels

50.4 (1) Every Canadian vessel or other vessel commits an offence that contravenes any provision of this Act or the regulations, other than a provision whose contravention is an offence under subsection 50.3(1).

Penalty — vessels of 7 500 tonnes deadweight or over

(2) Every Canadian vessel or other vessel of 7 500 tonnes deadweight or over that commits an offence under subsection (1) is liable,

(a) on conviction on indictment,

(i) for a first offence, to a fine of not more than $500,000, and

(ii) for a second or subsequent offence, to a fine of not more than $1,000,000; or

(b) on summary conviction,

(i) for a first offence, to a fine of not more than $250,000, and

(ii) for a second or subsequent offence, to a fine of not more than $500,000.

Penalty — other vessels

(3) Every Canadian vessel or other vessel of less than 7 500 tonnes deadweight that commits an offence under subsection (1) is liable,

(a) on conviction on indictment,

(i) for a first offence, to a fine of not more than $250,000, and

(ii) for a second or subsequent offence, to a fine of not more than $500,000; or

(b) on summary conviction,

(i) for a first offence, to a fine of not more than $50,000, and

(ii) for a second or subsequent offence, to a fine of not more than $100,000.

Deeming — second and subsequent offence

50.5 (1) For the purposes of subsections 50(2) to (4), 50.1(2) to (4), 50.3(2) and (3) and 50.4(2) and (3), a conviction for a particular offence under this Act is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the offender has been previously convicted — under any Act of Parliament, or any Act of the legislature of a province, that relates to environmental or wildlife conservation or protection — of a substantially similar offence.

Application

(2) Subsection (1) applies only to previous convictions on indictment and to previous convictions on summary conviction, and to previous convictions under any similar procedure under any Act of the legislature of a province.

Relief from minimum fine

50.6 The court may impose a fine that is less than the minimum amount provided for in section 50 or 50.3, as the case may be, if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in any of those sections.

Additional fine

50.7 If a person or a Canadian vessel or other vessel is convicted of an offence under this Act and the court is satisfied that, as a result of the commission of the offence, the person — or, if the offender is a Canadian vessel or other vessel, the owner or operator of the vessel — acquired any property, benefit or advantage, the court shall order the offender to pay an additional fine in an amount equal to the court’s estimation of the value of that property, benefit or advantage. The additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.

Notice to shareholders

50.8 If a corporation that has shareholders is convicted of an offence under this Act, the court shall make an order directing the corporation to notify its shareholders, in the manner and within the time directed by the court, of the facts relating to the commission of the offence and of the details of the punishment imposed.

Fundamental purpose of sentencing

50.9 The fundamental purpose of sentencing for offences under this Act is to contribute to respect for the law protecting the Antarctic environment and dependent and associated ecosystems in light of the global significance of the Antarctic and the Treaty through the imposition of just sanctions that have as their objectives

(a) to deter the offender and any other person from committing offences under this Act;

(b) to denounce unlawful conduct that damages or creates a risk of damage to the environment; and

(c) to reinforce the “polluter pays” principle by ensuring that offenders are held responsible for effective clean-up and environmental restoration.

Sentencing principles

50.91 (1) In addition to the principles and factors that the court is otherwise required to consider, including those set out in sections 718.1 to 718.21 of the Criminal Code, the court shall consider the following principles when sentencing a person who is convicted of an offence under this Act:

(a) the amount of the fine should be increased to account for every aggravating factor associated with the offence, including the aggravating factors set out in subsection (2); and

(b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.

Aggravating factors

(2) The aggravating factors are the following:

(a) the offence caused damage or risk of damage to the Antarctic environment or any dependent and associated ecosystem;

(b) the damage caused by the offence is extensive, persistent or irreparable;

(d) the offender failed to take reasonable steps to prevent the commission of the offence despite having the financial means to do so;

(e) by committing the offence or failing to take action to prevent its commission, the offender increased revenue or decreased costs or intended to increase revenue or decrease costs;

(f) the offender committed the offence despite having been warned by an enforcement officer or an inspector of the circumstances that subsequently became the subject of the offence;

(g) the offender has a history of non-compliance with federal or provincial legislation that relates to environmental or wildlife conservation or protection; and

(h) after the commission of the offence, the offender

(i) attempted to conceal its commission,

(ii) failed to take prompt action to prevent, mitigate or remediate its effects, or

(iii) failed to take prompt action to reduce the risk of committing similar offences in the future.

Absence of aggravating factor

(3) The absence of an aggravating factor set out in subsection (2) is not a mitigating factor.

Meaning of “damage”

(4) For the purposes of paragraphs (2)(a) and (b), “damage” includes loss of use value and non-use value.

Reasons

(5) If the court is satisfied of the existence of one or more of the aggravating factors set out in subsection (2) but decides not to increase the amount of the fine because of that factor, the court shall give reasons for that decision.

Proceedings against vessels

50.92 (1) The provisions of this Act and the Criminal Code relating to indictable or summary conviction offences that apply to persons apply also to Canadian vessels and other vessels, with any modifications that the circumstances require.

Direction binds vessel

(2) For the purpose of prosecuting a Canadian vessel or any other vessel for contravening a direction made under subsection 30(8), section 37.01 or subsection 46(3), any direction made under any of those provisions that is given to the master or a crew member of the vessel binds the vessel as though it had been given to the vessel.

Service

(3) If a Canadian vessel or other vessel is charged with having committed an offence under this Act, the summons may be served by leaving it with the authorized representative, master or any officer of the vessel or by posting the summons on some conspicuous part of the vessel.

Appearance at trial

(4) If a Canadian vessel or other vessel is charged with having committed an offence under this Act, the vessel may appear by counsel or representative. Despite the Criminal Code, if the vessel does not so appear, a court may, on proof of service of the summons, proceed to hold the trial.

Liability of directors, officers, etc., of corporations

51. (1) If a corporation commits an offence under this Act, any director, officer, agent or mandatary 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 on conviction to the penalty provided for by this Act for an individual in respect of the offence committed by the corporation, whether or not the corporation has been prosecuted or convicted.

Liability of directors and officers of corporate owners of vessels

(2) If a Canadian vessel or other vessel commits an offence under this Act, every director or officer of a corporation that is an owner or an operator of the vessel who directed or influenced the corporation’s policies or activities in respect of conduct that is the subject matter of the offence is a party to and guilty of the offence and is liable on conviction to the penalty provided for by this Act for an individual who commits an offence under subsection 50(1), whether or not the vessel has been prosecuted or convicted.

Duties of directors and officers of corporations

(3) Every director and officer of a corporation, including every director and officer of a corporation that is the owner or operator of a Canadian vessel or other vessel who is in a position to direct or influence the corporation’s policies or activities relating to conduct prohibited by this Act, shall take all reasonable care to ensure that the corporation or the vessel, as the case may be, complies with

(a) this Act and the regulations; and

(b) any orders and directions of, and prohibitions and requirements imposed by, any court, the Minister, enforcement officers, inspectors and analysts.

Liability of owners, operators, masters and chief engineers of vessels

52. (1) If a Canadian vessel or other vessel commits an offence under this Act and the owner, operator, master or chief engineer of the vessel directed, authorized, assented to, acquiesced in or participated in the commission of the offence, the owner, operator, master or chief engineer, as the case may be, is a party to and guilty of the offence and is liable on conviction to the penalty provided for by this Act for an individual who commits an offence under subsection 50(1), whether or not the vessel has been prosecuted or convicted.

Duties of owners, operators, masters and chief engineers of vessels

(2) The owner, operator, master and the chief engineer of a Canadian vessel or other vessel shall take all reasonable care to ensure that the vessel complies with

(a) this Act and the regulations; and

(b) any orders and directions of, and prohibitions and requirements imposed by, any court, the Minister, enforcement officers, inspectors and analysts.

13. The Act is amended by adding the following after section 53:

Offences involving more than one animal, plant, etc.

53.1 If an offence involves more than one animal or plant, or more than one native bird or native plant as defined in subsection 12(2), the fine to be imposed in respect of that offence may, despite sections 50, 50.1, 50.3 and 50.4, be the total of the fines that would have been imposed if each of the animals, plants, native birds or native plants had been the subject of a separate information.

14. Section 57 of the Act is replaced by the following:

Limitation period

57. No proceedings by way of summary conviction in respect of an offence under this Act may be instituted more than five years after the day on which the subject matter of the proceedings arose, unless the prosecutor and the defendant agree that they may be instituted after the five years.

15. Sections 60 and 61 of the Act are replaced by the following:

Proof of offence

60. (1) In any prosecution of an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee, agent or mandatary of the accused, whether or not the employee, agent or mandatary is identified or prosecuted for the offence.

Proof of offence

(2) In any prosecution of the master of a Canadian vessel or any other vessel or the pilot in command of a Canadian aircraft for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by a crew member or other person on board the vessel or aircraft, whether or not the crew member or other person is identified or prosecuted for the offence.

16. Section 63 of the Act is repealed.

17. (1) Paragraph 66(1)(c) of the French version of the Act is replaced by the following:

c) mener des études de suivi des effects sur l’environnement, de la façon que le ministre indique, ou verser, selon les modalités prescrites par le tribunal, une somme d’argent destinée à permettre ces études;

(2) Subsection 66(1) of the Act is amended by adding the following after paragraph (c):

(c.1) directing the offender to implement an environmental management system that meets a recognized Canadian or international standard specified by the court;

(c.2) directing the offender to pay Her Majesty in right of Canada an amount of money that the court considers appropriate for the purpose of promoting the conservation or protection of the Antarctic environment or dependent and associated ecosystems;

(3) Paragraphs 66(1)(e) and (f) of the Act are replaced by the following:

(e) directing the offender to publish, in the manner specified by the court, the facts relating to the commission of the offence and the details of the punishment imposed, including any orders made under this subsection;

(f) 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 commission of the offence and of the details of the punishment imposed, including any orders made under this subsection;

(4) Paragraph 66(1)(i) of the Act is replaced by the following:

(i) directing the offender to compensate any person, monetarily or otherwise, in whole or in part, for the cost of any remedial or preventive action taken, caused to be taken or to be taken as a result of the act or omission that constituted the offence, including the costs of assessing appropriate remedial or preventive action;

(5) Paragraph 66(1)(k) of the Act is repealed.

(6) Subsection 66(1) of the Act is amended by striking out “and” at the end of paragraph (m) and by replacing paragraph (n) with the following:

(n) requiring the offender to comply with any other conditions that the court considers appropriate in the circumstances for securing the offender’s good conduct and for deterring the offender and any other person from committing offences under this Act;

(o) requiring the offender to surrender to the Minister any permit issued to the person; and

(p) prohibiting the offender from applying for any new permit during any period that the court considers appropriate.

(7) Subsections 66(2) and (3) of the Act are replaced by the following:

Publication

(2) If an offender fails to comply with an order made under paragraph (1)(e), the Minister may, in the manner that the court directed the offender to do so, publish the facts relating to the commission of the offence and the details of the punishment imposed and recover the costs of publication from the offender.

Debt due to Her Majesty

(3) If the court makes an order under paragraph (1)(c.2) or (i) directing a person to pay an amount to Her Majesty in right of Canada, or if the Minister incurs publication costs under subsection (2), the amount or the costs, as the case may be, constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.

Enforcement

(4) If the court makes an order under paragraph (1)(i) directing an offender to pay an amount to a person, other than to Her Majesty in right of Canada, and the amount is not paid without delay, the person may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

Cancellation or suspension of permits

(5) If the court makes an order under paragraph (1)(o), any permit to which the order relates is cancelled unless the court makes an order suspending it for any period that the court considers appropriate.

Coming into force and duration of order

(6) An order made under subsection (1) comes into force on the day on which it is made or on any other day that the court may determine and shall not continue in force for more than three years after that day unless the court provides otherwise in the order.

18. The Act is amended by adding the following after section 66:

Compensation for loss of property

66.1 (1) If an offender has been convicted of an offence under this Act, the court may, at the time sentence is imposed and on the application of the person aggrieved, order the offender to pay to that person an amount by way of satisfaction or compensation for loss of or damage to property suffered by that person as a result of the commission of the offence.

Enforcement

(2) If the amount ordered to be paid under subsection (1) is not paid without delay, the aggrieved person may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

19. The Act is amended by adding the following after section 68:

Application of fines

68.1 (1) All fines received by the Receiver General in respect of the commission of an offence under this Act, other than fines collected under the Contraventions Act, are to be credited to the Environmental Damages Fund, an account in the accounts of Canada, and used for purposes related to protecting, conserving or restoring the environment or for administering that Fund.

Recommendations of court

(2) The court imposing the fine may recommend to the Minister that all or a portion of the fine credited to the Environmental Damages Fund be paid to a person or an organization specified by the court for a purpose referred to in subsection (1).

Publication of information about contraventions

68.2 (1) For the purpose of encouraging compliance with this Act and the regulations, the Minister shall maintain, in a registry accessible to the public, information about all convictions of corporations for offences under this Act.

Retention

(2) Information in the registry is to be maintained for a minimum of five years.

Contraventions Act

68.3 If an offence under this Act is designated as a contravention under the Contraventions Act, subsection 8(5) of that Act does not apply in respect of the fine that may be established for that contravention.

Review

68.4 (1) The Minister shall, 10 years after the day on which this section comes into force and every 10 years after that, undertake a review of sections 50 to 68.3.

Report to Parliament

(2) The Minister shall, no later than one year after the day on which the review is undertaken, cause a report on the review to be tabled in each House of Parliament.

2002, c. 18

CANADA NATIONAL MARINE CONSERVATION AREAS ACT

20. (1) Paragraph 16(1)(a) of the French version of the Canada National Marine Conservation Areas Act is replaced by the following:

a) la protection des écosystèmes et de leurs composantes;

(2) Subsection 16(1) of the Act is amended by striking out “and” at the end of paragraph (l), by adding “and” at the end of paragraph (m) and by adding the following after paragraph (m):

(n) designating provisions of the regulations for the purpose of subsection 24(1).

21. Sections 20 and 21 of the Act are replaced by the following:

Contraventions Act

19.1 (1) The Minister may designate persons or classes of persons employed in the federal public administration or by a provincial, municipal or local authority or by an aboriginal government for the purpose of the enforcement of this Act or the regulations with respect to offences that have been designated as contraventions under the Contraventions Act.

Limitations regarding designations

(2) The Minister may specify that a designation is in respect of one or more marine conservation areas or in respect of all or specified offences under this Act that have been designated as contraventions under the Contraventions Act.

Certificate of designation and oath

20. (1) Every marine conservation area warden, enforcement officer and person designated under section 19.1 shall be provided with a certificate of designation in a form approved by the Minister and shall take and subscribe an oath prescribed by the Minister.

Limitations must be specified

(2) The certificate must specify the limitations, if any, to which the designation is subject.

Right of passage

20.1 In the discharge of their duties, marine conservation area wardens and enforcement officers and any persons accompanying them may enter on and pass through or over private property without being liable for doing so and without any person having the right to object to that use of the property.

Immunity

20.2 Marine conservation area wardens and enforcement officers are not personally liable for anything they do or omit to do in good faith under this Act.

Arrest without warrant

21. A marine conservation area warden or enforcement officer may, in accordance with the Criminal Code, arrest without warrant any person

(a) whom the warden or officer finds committing an offence under this Act; or

(b) who the warden or officer believes, on reasonable grounds, has committed or is about to commit an offence under this Act.

22. Subsections 23(2) and (3) of the French version of the Act are replaced by the following:

Confiscation de plein droit

(2) Dans le cas où leur propriétaire — ou la personne qui a droit à leur possession — ne peut être identifié dans les trente jours suivant la saisie, les objets, ou le produit de leur disposition, sont confisqués au profit de Sa Majesté du chef du Canada, si le garde ou l’agent saisissant est un fonctionnaire de l’administration publique fédérale, ou au profit de Sa Majesté du chef d’une province, si l’agent saisissant est un employé d’une autorité provinciale, municipale ou locale ou d’un gouvernement autochtone.

Biens périssables

(3) Le garde ou l’agent peut disposer, notamment par destruction, des objets saisis périssables; le produit de leur disposition est soit remis à leur propriétaire ou à la personne qui a droit à leur possession, soit, lorsque des poursuites fondées sur la présente loi ont été intentées dans les quatre-vingt-dix jours suivant la saisie, retenu par le garde ou l’agent jusqu’au règlement de l’affaire.

23. The Act is amended by adding the following after section 23:

Liability for costs

23.1 If a thing is seized under this Act, the person who owned the thing at the time that it was seized, the person who had charge or control of the thing immediately before it was seized and the person who possessed it immediately before it was seized are jointly and severally, or solidarily, liable for all the costs of seizure, detention, maintenance and forfeiture, including any destruction or disposal costs, incurred by Her Majesty in right of Canada in relation to the thing in excess of any proceeds of its disposition, if any.

24. (1) Subsection 24(1) of the Act is replaced by the following:

Offence

24. (1) Every person who contravenes any provision of this Act or any provision of the regulations designated by regulations made under paragraph 16(1)(n) is guilty of an offence and liable

(a) on conviction on indictment,

(i) in the case of an individual,

(A) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000, and

(B) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000,

(ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),

(A) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and

(B) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000, and

(iii) in the case of a corporation that the court has determined under section 24.1 to be a small revenue corporation,

(A) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and

(B) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or

(b) on summary conviction,

(i) in the case of an individual,

(A) for a first offence, to a fine of not less than $5,000 and not more than $300,000, and

(B) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000,

(ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),

(A) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and

(B) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000, and

(iii) in the case of a corporation that the court has determined under section 24.1 to be a small revenue corporation,

(A) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and

(B) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.

Contravention of other provisions of regulations or of conditions of permits, etc.

(1.1) Every person who contravenes any provision of the regulations, other than a provision designated by regulations made under paragraph 16(1)(n), or any condition of a permit or other authorizing instrument issued under this Act is guilty of an offence and liable

(a) on conviction on indictment,

(i) in the case of an individual,

(A) for a first offence, to a fine of not more than $100,000, and

(B) for a second or subsequent offence, to a fine of not more than $200,000,

(ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),

(A) for a first offence, to a fine of not more than $500,000, and

(B) for a second or subsequent offence, to a fine of not more than $1,000,000, and

(iii) in the case of a corporation that the court has determined under section 24.1 to be a small revenue corporation,

(A) for a first offence, to a fine of not more than $250,000, and

(B) for a second or subsequent offence, to a fine of not more than $500,000; or

(b) on summary conviction,

(i) in the case of an individual,

(A) for a first offence, to a fine of not more than $25,000, and

(B) for a second or subsequent offence, to a fine of not more than $50,000,

(ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),

(A) for a first offence, to a fine of not more than $250,000, and

(B) for a second or subsequent offence, to a fine of not more than $500,000, and

(iii) in the case of a corporation that the court has determined under section 24.1 to be a small revenue corporation,

(A) for a first offence, to a fine of not more than $50,000, and

(B) for a second or subsequent offence, to a fine of not more than $100,000.

(2) Subsection 24(2) of the French version of the Act is replaced by the following:

Infraction continue

(2) Il est compté une infraction distincte à la présente loi pour chacun des jours au cours desquels se commet ou se continue l’infraction.

(3) Section 24 of the Act is amended by adding the following after subsection (2):

Offences involving more than one animal, plant or object

(2.1) If an offence involves more than one animal, plant or object, the fine to be imposed in respect of that offence may, despite subsections (1) and (1.1), be the total of the fines that would have been imposed if each of the animals, plants or objects had been the subject of a separate information.

Deeming — second and subsequent offence

(2.2) For the purposes of this section, a conviction for a particular offence under this Act is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the offender has been previously convicted — under any Act of Parliament, or any Act of the legislature of a province, that relates to environmental or wildlife protection or conservation, or the protection of cultural, historical or archaeological resources — of a substantially similar offence.

Application

(2.3) Subsection (2.2) applies only to previous convictions on indictment and to previous convictions on summary conviction, and to previous convictions under any similar procedure under any Act of the legislature of a province.

25. The Act is amended by adding the following after section 24:

Determination of small revenue corporation status

24.1 For the purpose of section 24, a court may determine a corporation to be a small revenue corporation if the court is satisfied that the corporation’s gross revenues for the 12 months immediately before the day on which the subject matter of the proceedings arose — or, if it arose on more than one day, for the 12 months immediately before the first day on which the subject matter of the proceedings arose — were not more than $5,000,000.

Relief from minimum fine

24.2 The court may impose a fine that is less than the minimum amount provided for in subsection 24(1) if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in that subsection.

Additional fine

24.3 If a person is convicted of an offence under this Act and the court is satisfied that, as a result of the commission of the offence, the person acquired any property, benefit or advantage, the court shall order the person to pay an additional fine in an amount equal to the court’s estimation of the value of that property, benefit or advantage. The additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.

Notice to shareholders

24.4 If a corporation that has shareholders is convicted of an offence under this Act, the court shall make an order directing the corporation to notify its shareholders, in the manner and within the time directed by the court, of the facts relating to the commission of the offence and of the details of the punishment imposed.

Liability of directors, officers, etc., of corporations

24.5 (1) If a corporation commits an offence under this Act, any director, officer, agent or mandatary 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 on conviction to the penalty provided for by this Act for an individual in respect of the offence committed by the corporation, whether or not the corporation has been prosecuted or convicted.

Duties of directors and officers of corporations

(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;

(b) orders made by a court, the Minister or the superintendent under this Act; and

Fundamental purpose of sentencing

24.6 The fundamental purpose of sentencing for offences under this Act is to contribute to respect for the law establishing and protecting marine conservation areas through the imposition of just sanctions that have as their objectives

(a) to deter the offender and any other person from committing offences under this Act;

(b) to denounce unlawful conduct that damages or creates a risk of damage to marine conservation areas; and

Sentencing principles

24.7 (1) In addition to the principles and factors that the court is otherwise required to consider, including those set out in sections 718.1 to 718.21 of the Criminal Code, the court shall consider the following principles when sentencing a person who is convicted of an offence under this Act:

(a) the amount of the fine should be increased to account for every aggravating factor associated with the offence, including the aggravating factors set out in subsection (2); and

(b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.

Aggravating factors

(2) The aggravating factors are the following:

(a) the offence caused damage or risk of damage to any marine conservation area resources;

(b) the offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable marine conservation area resources;

(d) the offender committed the offence intentionally or recklessly;

(e) the offender failed to take reasonable steps to prevent the commission of the offence despite having the financial means to do so;

(f) by committing the offence or failing to take action to prevent its commission, the offender increased revenue or decreased costs or intended to increase revenue or decrease costs;

(g) the offender committed the offence despite having been warned by the superintendent, a marine conservation area warden or an enforcement officer of the circumstances that subsequently became the subject of the offence;

(h) the offender has a history of non-compliance with federal or provincial legislation that relates to environmental or wildlife protection or conservation or the protection of cultural, historical or archaeological resources; and

(i) after the commission of the offence, the offender

(i) attempted to conceal its commission,

(ii) failed to take prompt action to prevent, mitigate or remediate its effects, or

(iii) failed to take prompt action to reduce the risk of committing similar offences in the future.

Absence of aggravating factor

(3) The absence of an aggravating factor set out in subsection (2) is not a mitigating factor.

Meaning of “damage”

(4) For the purposes of paragraphs (2)(a) to (c), “damage” includes loss of use value and non-use value.

Reasons

26. The Act is amended by adding the following after section 26:

Application of fines

26.1 (1) All fines received by the Receiver General in respect of the commission of an offence under this Act, other than fines collected under the Contraventions Act, are to be credited to the Environmental Damages Fund, an account in the accounts of Canada, and used for purposes related to protecting, conserving or restoring marine conservation areas or for administering that Fund.

Recommendations of court

27. (1) Subsection 27(1) of the Act is replaced by the following:

Orders of court

27. (1) If a person is convicted of an offence under this Act, in addition to any punishment imposed, the court may, 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 may, in the court’s opinion, 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 damage to any marine conservation area resources that resulted or may result from the commission of the offence;

(c) directing the person to post a bond, provide surety or pay into court an amount of money that the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction or requirement mentioned in this section;

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

(e) directing the person to carry out, in the manner established by the Minister, monitoring of the environmental effects of any activity or undertaking on the resources of a marine conservation area or directing the person to pay, in the manner specified by the court, an amount for that purpose;

(f) directing the person to implement an environmental management system approved by the Minister;

(g) directing the person to have an environmental audit conducted by a person of a class and at the times specified by the Minister and directing the person to remedy any deficiencies revealed during the audit;

(h) directing the person to pay to Her Majesty in right of Canada an amount of money that the court considers appropriate for the purpose of promoting the protection, conservation or restoration of marine conservation areas;

(i) directing the person to publish, in the manner specified by the court, the facts relating to the commission of the offence and the details of the punishment imposed, including any orders made under this subsection;

(j) directing the person to notify, at the person’s own cost and in the manner specified by the court, any person aggrieved or affected by the person’s conduct of the facts relating to the commission of the offence and of the details of the punishment imposed, including any orders made under this subsection;

(k) directing the person to submit to the Minister, when requested to do so by the Minister at any time within three years after the date of conviction, any information with respect to the person’s activities that the court considers appropriate in the circumstances;

(l) directing the person to compensate any person, monetarily or otherwise, in whole or in part, for the cost of any remedial or preventive action taken, caused to be taken or to be taken as a result of the act or omission that constituted the offence, including any costs of assessing appropriate remedial or preventive action;

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

(n) directing the person to pay, in a manner specified by the court, an amount to enable research to be conducted into the protection, conservation or restoration of marine conservation areas;

(o) requiring the person to surrender to the Minister any permit or other authorizing instrument issued under this Act to the person;

(p) prohibiting the person from applying for any new permit or other authorizing instrument under this Act during any period that the court considers appropriate; and

(q) requiring the person to comply with any other conditions that the court considers appropriate.

Publication

(1.1) If a person fails to comply with an order made under paragraph (1)(i), the Minister may, in the manner that the court directed the person to do so, publish the facts relating to the commission of the offence and the details of the punishment imposed and recover the costs of publication from the person.

Debt due to Her Majesty

(1.2) If the court makes an order under paragraph (1)(h) or (l) directing a person to pay an amount to Her Majesty in right of Canada, or if the Minister incurs publication costs under subsection (1.1), the amount or the costs, as the case may be, constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.

Enforcement

(1.3) If the court makes an order under paragraph (1)(l) directing a person to pay an amount to another person, other than to Her Majesty in right of Canada, and the amount is not paid without delay, that other person may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the person who was directed to pay the amount in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

Cancellation or suspension of permit, etc.

(1.4) If the court makes an order under paragraph (1)(o), any permit or other authorizing instrument to which the order relates is cancelled unless the court makes an order suspending it for any period that the court considers appropriate.

(2) Section 27 of the Act is amended by adding the following after subsection (3):

Coming into force and duration of order

(4) An order made under subsection (1) comes into force on the day on which it is made or on any other day that the court may determine and shall not continue in force for more than three years after that day unless the court provides otherwise in the order.

28. Section 28 of the Act is replaced by the following:

Compensation for loss of property

28. (1) If a person has been convicted of an offence under this Act, the court may, at the time sentence is imposed and on the application of the person aggrieved, order the offender to pay to the aggrieved person an amount by way of satisfaction or compensation for loss of or damage to property suffered by that person as a result of the commission of the offence.

Enforcement

Limitation period

28.1 No proceedings by way of summary conviction in respect of an offence under this Act may be instituted more than five years after the day on which the subject matter of the proceedings arose, unless the prosecutor and the defendant agree that they may be instituted after the five years.

Contraventions Act

28.2 If an offence under this Act is designated as a contravention under the Contraventions Act, subsection 8(5) of that Act does not apply in respect of the fine that may be established for that contravention.

Publication of information about contraventions

28.3 (1) For the purpose of encouraging compliance with this Act and the regulations, the Minister shall maintain, in a registry accessible to the public, information about all convictions of corporations for offences under this Act.

Retention

(2) Information in the registry is to be maintained for a minimum of five years.

Review

28.4 (1) The Minister shall, 10 years after the day on which this section comes into force and every 10 years after that, undertake a review of sections 24 to 28.3.

Report to Parliament

(2) The Minister shall, no later than one year after the day on which the review is undertaken, cause a report on the review to be tabled in each House of Parliament.

2000, c. 32

CANADA NATIONAL PARKS ACT

29. Paragraph 16(1)(y) of the Canada National Parks Act is replaced by the following:

(y) designating provisions of the regulations for the purpose of subsection 24(1); and

30. Sections 20 and 21 of the Act are replaced by the following:

Contraventions Act

Limitations regarding designations

(2) The Minister may specify that a designation is in respect of one or more parks or in respect of all or specified offences under this Act that have been designated as contraventions under the Contraventions Act.

Certificate of designation and oath

20. (1) Every park warden, enforcement officer and person designated under section 19.1 shall be provided with a certificate of designation in a form approved by the Minister and shall take and subscribe an oath prescribed by the Minister.

Limitations must be specified

(2) The certificate must specify the limitations, if any, to which the designation is subject.

Right of passage

20.1 In the discharge of their duties, park wardens and enforcement officers and any persons accompanying them may enter on and pass through or over private property without being liable for doing so and without any person having the right to object to that use of the property.

Immunity

20.2 Park wardens and enforcement officers are not personally liable for anything they do or omit to do in good faith under this Act.

Arrest without warrant

21. A park warden or enforcement officer may, in accordance with the Criminal Code, arrest without warrant any person

(a) whom the warden or officer finds committing an offence under this Act; or

(b) who the warden or officer believes, on reasonable grounds, has committed or is about to commit an offence under this Act.

2002, c. 18, s. 31.4; 2003, c. 22, par. 224(q)(E)

31. Subsections 23(2) and (3) of the French version of the Act are replaced by the following:

Confiscation de plein droit

Biens périssables

32. The Act is amended by adding the following after section 23:

Liability for costs

33. Section 24 of the Act is replaced by the following:

Offence

24. (1) Every person who contravenes section 13, subsection 32(1) or a provision of the regulations designated by regulations made under paragraph 16(1)(y) is guilty of an offence and liable

(a) on conviction on indictment,

(i) in the case of an individual,

(A) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000, and

(B) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000,

(ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),

(A) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and

(B) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000, and

(iii) in the case of a corporation that the court has determined under section 27.1 to be a small revenue corporation,