Bill C-16

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1999, c. 33

CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

52. Subsection 159(3) of the Canadian Environmental Protection Act, 1999 is replaced by the following:

Detention of vehicles or engines

(3) The Minister may not detain any vehicle, engine, equipment or component for more than 90 days after completion of the tests conducted under subsection (2) unless, before that time, proceedings have been instituted in respect of an offence related to the vehicle, engine, equipment or component, in which case it may be detained until the proceedings are concluded.

53. The Act is amended by adding the following after section 217:

Immunity

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

54. (1) Subsection 218(7) of the Act is replaced by the following:

Stopping and detaining conveyances

(7) For the purposes of this Act and the regulations, 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, platform or other structure.

Moving and detaining shipping containers

(7.1) For the purposes of this Act and the regulations, an enforcement officer may, at any reasonable time, direct that any shipping container be moved to a place specified by the officer and the officer may, for a reasonable time, detain the container.

(2) Subsection 218(11) of the Act is replaced by the following:

Disposition of samples

(11) An enforcement officer may dispose a sample taken under paragraph (10)(d) in any manner that the enforcement officer considers appropriate.

55. Subsection 220(2) of the Act is replaced by the following:

Warrant for seizure of ships, etc.

(2) If on ex parte application a justice is satisfied by information on oath that there are reasonable grounds to believe that an offence under this Act has been committed by an owner of any ship, aircraft, platform or other structure, the justice may issue a warrant authorizing an enforcement officer, or authorizing any other person named in the warrant, to seize the ship, aircraft, platform or structure anywhere in Canada and, in the case of a ship, platform or structure, within Canadian waters.

56. Subsection 222(2) of the Act is replaced by the following:

Seized ship, etc., to be returned unless proceedings instituted

(2) Anything referred to in subsection (1) that has been seized under section 220, or any security given to the Minister under subsection (1), shall be returned or paid to the person from whom the thing was seized within 30 days after the seizure unless, before the expiry of those 30 days, proceedings are instituted in respect of an offence under this Act alleged to have been committed by the owner of the thing.

57. Subsection 225(1) of the Act is replaced by the following:

Detention of ships

225. (1) If an enforcement officer has reasonable grounds to believe that the owner or master of a ship has committed an offence under this Act and that a ship was used in connection with the commission of the offence, the enforcement officer may make a detention order in respect of the ship.

58. Section 226 of the Act is replaced by the following:

Right of passage

226. While carrying out powers, duties or functions under this Act, enforcement officers and analysts, 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.

59. The Act is amended by adding the following after section 228:

Liability for Costs

Liability for costs

228.1 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.

60. Section 231 of the Act is replaced by the following:

Court may order forfeiture

231. If the owner of any ship, aircraft, platform or other structure has been convicted of an offence under this Act, the convicting court may, if the ship, aircraft, platform or structure was seized under section 220 or subsection 223(1), in addition to any other penalty imposed, order that the ship, aircraft, platform or structure, or any security given under subsection 222(1), be forfeited, and on the making of such an order the ship, aircraft, platform, structure or security is forfeited to Her Majesty in right of Canada.

61. (1) Subsection 235(1) of the Act is replaced by the following:

Order

235. (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 in the circumstances described in subsection (2) by a person who is continuing the commission of the offence, or that any of those provisions are likely to be contravened in the circumstances described in that subsection, the enforcement officer may issue an environmental protection compliance order directing any person described in subsection (3) to take any of the measures referred to in subsection (4) and, if applicable, subsection (5) that are reasonable in the circumstances and consistent with the protection of the environment and public safety, in order to cease or refrain from committing the alleged contravention.

(2) Subsection 235(3) of the Act is amended by striking out “or” at the end of paragraph (a), by adding “or’’ at the end of paragraph (b) and by adding the following after paragraph (b):

(3) The portion of subsection 235(4) of the English version of the Act before paragraph (a) is replaced by the following:

Specific measures

(4) For the purposes of subsection (1), an order in relation to an alleged contravention of any provision of this Act or the regulations may specify that the person to whom the order is directed take one or more of the following measures:

(4) Paragraphs 235(4)(c) and (d) of the French version of the Act are replaced by the following:

c) cesser l’exercice d’une activité ou l’exploitation d’une partie notamment d’un ouvrage ou d’une entreprise jusqu’à ce que l’agent de l’autorité soit convaincu qu’ils sont conformes à la présente loi et aux règlements;

d) déplacer un moyen de transport vers un autre lieu, y compris faire entrer un navire au port ou faire atterrir un aéronef;

(5) The portion of paragraph 235(4)(f) of the Act before subparagraph (i) is replaced by the following:

(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

(6) Paragraph 235(6)(b) of the Act is replaced by the following:

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

(7) Paragraphs 235(6)(d) and (e) of the Act are replaced by the following:

(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;

(8) Subsection 235(7) of the Act is replaced by the following:

Duration of order

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

Failing to file report

(8) 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

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

62. Subsection 236(1) of the English version of the Act is replaced by the following:

Exigent circumstances

236. (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 235.

63. Paragraph 237(1)(b) of the English version of the Act is replaced by the following:

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

64. Subsection 238(2) of the Act is replaced by the following:

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.

65. (1) Subsection 239(1) of the Act is replaced by the following:

Intervention by enforcement officer

239. (1) If any 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.

(2) Subsection 239(3) of the Act is replaced by the following:

Personal liability

(3) Any person, other than a person described in subsection 235(3), 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 assist- ance or advice or taking any measures under that subsection unless it is established that the person acted in bad faith.

66. (1) Subsection 240(3) of the English version of the Act is replaced by the following:

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.

(2) Subsections 240(5) and (6) of the French version of the Act are replaced by the following:

Poursuites

(5) Sa Majesté du chef du Canada peut recouvrer les créances, ainsi que les dépens afférents, par action en recouvrement devant tout tribunal compétent.

Recours contre des tiers et indemnité

(6) Le présent article ne limite pas les recours contre les tiers ni le droit à une indemnité.

67. (1) The portion of subsection 241(1) of the Act before paragraph (a) is replaced by the following:

Variation or cancellation of order

241. (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,

(2) The portion of subsection 241(3) of the French version of the Act before paragraph (a) is replaced by the following:

Teneur de l’avis d’intention

(3) L’avis d’intention quant à l’exercice des pouvoirs prévus à l’alinéa (1)a) doit préciser les trois éléments suivants :

68. Section 247 of the Act is replaced by the following:

Knowledge

247. A person is not eligible to be appointed as a review officer unless the person is knowledgeable about the conservation and protection of the Canadian environment, environmental and human health, administrative law as it relates to environmental regulation or traditional aboriginal ecological knowledge.

69. Section 257 of the Act is replaced by the following:

Review

257. On receipt of a request made under subsection 256(1), the Chief Review Officer shall conduct a review of the order, including a hearing, or cause a review and hearing of the order to be conducted by a review officer, or by a panel of three review officers, assigned by the Chief Review Officer. The Chief Review Officer may be a member of that panel.

70. Section 266 of the Act is replaced by the following:

Decision

266. The review officer or the panel, as the case may be, shall, within 15 days after the completion of the review of an order, render a decision, with written reasons, and provide all persons to whom the order was directed and the Minister with a copy of the decision and the reasons.

71. Section 267 of the Act is renumbered as subsection 267(1) and is amended by adding the following:

Rules for other Acts

(2) The Chief Review Officer may make rules under subsection (1) with respect to the review of orders made under any Act of Parliament that provides for the review of those orders in accordance with sections 257 to 271 of this Act.

2005, c. 23, s. 37

72. Sections 272 to 275 of the Act are replaced by the following:

Offence — persons

272. (1) Every person commits an offence who

(a) contravenes subsection 16(3) or (4), any of subsections 81(1), (2), (3), (4), (10), (11) and (14), 84(2) and 96(3) and (4), section 101, any of subsections 106(1), (2), (3), (4), (10) and (11) and 109(2), section 117 or 123, any of subsections 124(1), (2) and (3), 125(1), (2), (3), (4) and (5), 126(1) and (2) and 139(1), section 142 or 144, subsection 150(3) or (4), section 152, subsection 153(1), section 154, subsection 155(5), section 171 or 181 or subsection 185(1), 186(2), 189(1), 202(3) or (4) or 213(3) or (4), paragraph 228(a) or subsection 238(1);

(b) fails to comply with an obligation set out in section 70, 86, 95 or 111, subsection 169(1), 172(1), 179(1), 182(1), 201(1) or 212(1);

(c) contravenes a prohibition imposed under subsection 82(1) or (2), paragraph 84(1)(b), subsection 107(1) or (2), paragraph 109(1)(b) or subsection 186(1) or 225(4);

(d) contravenes a condition of a permission granted under paragraph 84(1)(a) or 109(1)(a);

(e) contravenes an interim order made under subsection 94(1), 173(1), 183(1) or 200.1(1);

(f) fails to comply with a direction given under section 99, 119 or 148;

(g) knowingly contravenes paragraph 228(b);

(h) contravenes any provision of the regulations designated by regulations made under section 286.1 for the purpose of this paragraph;

(i) contravenes an agreement as defined in section 295;

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

(k) knowingly, with respect to any matter related to this Act or the regulations, provides any person with any false or misleading information, results or samples; or

(l) knowingly, with respect to any matter related to this Act or the regulations, files a document that contains false or misleading information.

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 three 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 six months, 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 272.3 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

272.1 (1) Every person commits an offence who

(a) contravenes any provision of this Act, other than a provision the contravention of which is an offence under subsection 272(1);

(b) fails to comply with an obligation arising from this Act, a requirement imposed under this Act or a request made under this Act, other than an obligation, a requirement or a request the failure to comply with is an offence under 272(1);

(c) contravenes a prohibition arising from this Act, other than a prohibition the contravention of which is an offence under subsection 272(1);

(d) contravenes a condition of any permission granted under this Act, other than a condition of a permission the contravention of which is an offence under subsection 272(1);

(e) fails to comply with a direction given under this Act, other than a direction the failure to comply with is an offence under 272(1);

(f) contravenes any provision of the regulations, other than a provision the contravention of which is an offence under subsection 272(1) or 272.2(1);

(g) negligently, with respect to any matter related to this Act or the regulations, provides any person with any false or misleading information, results or samples; or

(h) negligently, with respect to any matter related to this Act or the regulations, files a document that contains false or misleading information.

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 272.3 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.

Offence — failure to comply with designated regulations

272.2 (1) Every person who fails to comply with a provision of a regulation designated under section 286.1 for the purpose of this subsection commits an offence and is liable

(a) on conviction on indictment,

(i) in the case of an individual, to a fine determined in accordance with the regulations or to imprisonment for a term of not more than three years, or to both, and

(ii) in the case of a person, other than an individual, to a fine determined in accordance with the regulations; or

(b) on summary conviction,

(i) in the case of an individual, to a fine determined in accordance with the regulations or to imprisonment for a term of not more than six months, or to both, and

(ii) in the case of a person, other than an individual, to a fine determined in accordance with the regulations.

Regulations

(2) The Governor in Council may make regulations prescribing the method of calculating the fine in respect of the offence referred to in subsection (1) committed by individuals, other persons and corporations determined under section 272.3 to be small revenue corporations, which method may be based on a monetary range specified in the regulations.

Tradeable units

(3) If a person is convicted of an offence under subsection (1) by reason of having failed to comply with a provision that requires the remission or the cancellation of tradeable units described in regulations made under section 326, the court shall, in addition to any other punishment that may be imposed under subsection (1), make an order requiring the person to remit or cancel tradeable units of the type and number determined in accordance with regulations made under subsection (4) or, if there are no regulations made under that subsection, in accordance with subsection (5). In the case of an order to remit, the court shall specify in the order the name of the person or entity to whom the tradeable units are to be remitted.

Regulations

(4) The Governor in Council may make regulations prescribing the types of tradeable units described in regulations made under section 326 that a person may be required to remit or cancel in an order made under subsection (3) and the manner of determining the number of those tradeable units that the person may be required to remit or cancel.

Absence of regulations

(5) If there are no regulations made under subsection (4), the court shall require the person to remit or cancel tradeable units of a type and in the number that, in the court’s opinion, the person failed to remit or cancel.

Determination of small revenue corporation status

272.3 For the purpose of sections 272, 272.1 and 272.2, 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 — ships

272.4 (1) Every ship commits an offence if it contravenes

(a) section 123, subsection 124(1.1), 125(1), (2.1) or (3.1) or 126(1.1) or (3);

(b) any provision of the regulations designated by regulations made under section 286.1; or

Penalty — ships of 7 500 tonnes deadweight or over

(2) Every ship 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 ships

(3) Every other ship 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 — ships

272.5 (1) Every ship commits an offence if it contravenes

(a) any provision of this Act that expressly applies to ships, other than a provision the contravention of which is an offence under subsection 272.4(1); or

(b) any provision of the regulations other than a provision the contravention of which is an offence under subsection 272.4(1).

Penalty — ship of 7 500 tonnes deadweight or over

(2) Every ship 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 ships

(3) Every other ship 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.

Relief from minimum fine

273. The court may impose a fine that is less than the minimum amount provided for in subsection 272(2), (3) or (4) or 272.4(2) or (3) 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 subsections.

Deeming — second and subsequent offence

273.1 (1) For the purposes of subsections 272(2) to (4), 272.1(2) to (4), 272.4(2) and (3) and 272.5(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.

Damage to environment and risk of death or harm to persons

274. (1) Every person is guilty of an offence and liable on conviction on indictment to a fine or to imprisonment for a term of not more than five years, or to both, who, in committing an offence under this Act,

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

(b) shows wanton or reckless disregard for the lives or safety of other persons and thereby causes a risk of death or harm to another person.

Criminal negligence

(2) Every person who, in committing an offence under this Act, shows wanton or reckless disregard for the lives or safety of other persons and thereby causes death or bodily harm to another person is subject to prosecution and punishment under section 220 or 221 of the Criminal Code.

Additional fine

274.1 If a person or ship is convicted of an offence and the court is satisfied that, as a result of the commission of the offence, the person — or, if the offender is a ship, the owner or operator of the ship — 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

274.2 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.

Limitation period

275. 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.

2005, c. 23, s. 41

73. Section 280 of the Act is replaced by the following:

Liability of directors, officer, etc., of corporation

280. (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 masters and chief engineers

(2) If a ship commits an offence under this Act and the master or chief engineer of the ship directed, authorized, assented to, acquiesced in or participated in the commission of the offence, the master and chief engineer are a party to and guilty of the offence, and are liable on conviction to the penalty provided for by this Act for an individual who commits an offence under subsection 272.1(1), whether or not the ship has been prosecuted or convicted.

2005, c. 23, s. 41

74. Subsection 280.1(3) of the Act is replaced by the following:

Liability of directors and officers — Division 3 of Part 7

(3) If a corporation commits an offence arising out of a contravention of Division 3 of Part 7, a regulation made under that Division or an order or direction of, or prohibition or requirement imposed by, the Minister, an enforcement officer or a review officer in connection with an obligation or prohibition under that Division or a regulation made under that Division, every director and officer of the corporation 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 to the penalty provided 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.

2005, c. 23, s. 41

75. Subsection 280.2(2) of the Act is replaced by the following:

Liability of master and chief engineer

(2) If a ship commits an offence arising out of a contravention of Division 3 of Part 7, a regulation made under that Division or an order or direction of, or prohibition or requirement imposed by, the Minister, an enforcement officer or a review officer in connection with an obligation or prohibition under that Division or a regulation made under that Division, the master and the chief engineer of the ship are a party to and guilty of the offence, and are liable to the penalty provided for by this Act for an individual who commits an offence under subsection 272(1), whether or not the ship has been prosecuted or convicted.

2005, c. 23, s. 41

76. Sections 280.3 to 280.5 of the Act are replaced by the following:

Duties of ship owners

280.3 (1) Every owner of a ship — and, if the owner is a corporation, every director and officer of the corporation who is in a position to direct or influence its policies or activities relating to conduct prohibited by Division 3 of Part 7 — shall take all reasonable care to ensure that the ship complies, and all persons on board the ship comply, with

(a) Division 3 of Part 7 and regulations made under that Division; and

(b) orders and directions of, and prohibitions and requirements imposed by, the Minister, enforcement officers and review officers in connection with obligations or prohibitions under that Division or those regulations.

Liability of ship’s owner — individual

(2) If a ship commits an offence arising out of a contravention of Division 3 of Part 7, a regulation made under that Division or an order or direction of, or prohibition or requirement imposed by, the Minister, an enforcement officer or a review officer in connection with an obligation or prohibition under that Division or a regulation made under that Division and the owner of the ship, other than an owner that is a corporation, directed, authorized, assented to, acquiesced in or participated in the commission of the offence, the owner is a party to and guilty of the offence and is liable to the penalty provided by this Act for an individual who commits an offence under subsection 272(1), whether or not the ship has been prosecuted or convicted.

Liability of directors and officers of corporate ship owners

(3) If a ship commits an offence arising out of a contravention of Division 3 of Part 7, a regulation made under that Division or an order or direction of, or prohibition or requirement imposed by, the Minister, an enforcement officer or a review officer in connection with an obligation or prohibition under that Division or a regulation made under that Division, every director or officer of a corporation that is an owner of the ship 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 to penalty provided by this Act for an individual who commits an offence under subsection 272(1), whether or not the ship has been prosecuted or convicted.

For greater certainty

280.4 For greater certainty, section 283 applies to a person who is a party to an offence by reason of subsection 280.1(3), 280.2(2) or 280.3(2) or (3).

Direction binds ship

280.5 For the purpose of prosecuting a ship for contravening a direction made under section 225.1, any direction made under that section that is given to the master or a crew member of the ship binds the ship as though it had been given to the ship.

2005, c. 23, s. 42

77. Subsection 281.1(2) of the Act is replaced by the following:

Service on ship

(2) If a ship is charged with having committed an offence under this Act, the summons may be served by leaving it with the owner, master or any officer of the ship or by posting the summons on some conspicuous part of the ship.

Appearance at trial

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

78. Subsection 282(1) of the Act is replaced by the following:

Proof of offence

282. (1) In any prosecution of an offence under this Act, other than an offence under paragraph 272(1)(k) or (l) or an offence of contravening section 228 or an offence under 274, 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.

79. Section 283 of the Act is replaced by the following:

Defence

283. No person shall be found guilty of an offence under this Act, other than an offence of contravening paragraph 228(a) or knowingly contravening paragraph 228(b), an offence under paragraph 272(1)(k) or (l) or an offence under section 274, if the person establishes that the person exercised all due diligence to prevent its commission.

80. The Act is amended by adding the following after section 286:

Regulations

286.1 The Governor in Council may, by regulation, designate provisions of regulations made under this Act for the purposes of paragraph 272(1)(h) and subsection 272.2(1) and paragraph 272.4(1)(b).

81. Section 287 of the Act and the heading before it are replaced by the following:

Sentencing

Fundamental purpose of sentencing

287. The fundamental purpose of sentencing for offences under this Act is to contribute, in light of the significant and many threats to the environment and to human health and to the importance of a healthy environment to the well-being of Canadians, to respect for the law protecting the environment and human health 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 dam- ages or creates a risk of damage to the environment or harms or creates a risk of harm to human health; and

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

Sentencing principles

287.1 (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 environment or environmental quality;

(b) the offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable component of the environment;

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

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

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

(g) 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;

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

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

(j) 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), (b) and (d), “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.

82. Subsection 288(2) of the Act is replaced by the following:

Conditions of order

(2) If an order is made under subsection (1) and the offender contravenes or fails to comply with it, or is convicted of an offence under this Act, the prosecutor may apply to the court to revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time the order was made.

83. Subsection 289(2) of the Act is replaced by the following:

Application by prosecutor

(2) If the passing of sentence has been suspended under subsection (1) and the offender contravenes or fails to comply with an order made under section 291, or is convicted of an offence under this Act, the prosecutor may apply to the court to impose any sentence that could have been imposed if the passing of sentence had not been suspended.

84. Section 290 of the Act is repealed.

85. (1) Paragraph 291(1)(d) of the French version of the Act is replaced by the following:

d) mener des études de suivi des effets 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) Paragraphs 291(1)(g) and (h) of the Act are replaced by the following:

(f.1) directing the offender to pay to 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 environment;

(g) 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;

(h) directing the offender to notify, at the offender’s own cost and in the manner specified 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;

(3) Paragraph 291(1)(k) of the Act is replaced by the following:

(k) 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 costs of assessing appropriate remedial or preventive action;

(4) Paragraph 291(1)(m) of the Act is repealed.

(5) Subsection 291(1) of the Act is amended by striking out “and” at the end of paragraph (p) and by replacing paragraph (q) with the following:

(q) 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;

(r) requiring the offender to surrender to the Minister any permit or other authorization issued under this Act to the offender; and

(s) prohibiting the offender from applying for any new permit or other authorization under this Act during any period that the court considers appropriate.

(6) Subsections 291(2) to (4) of the Act are replaced by the following:

Publication

(2) If an offender fails to comply with an order made under paragraph (1)(g), 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)(f.1) or (k) directing an offender 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)(k) 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, etc.

(5) If the court makes an order under paragraph (1)(r), any permit or other authorization 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.

86. The Act is amended by adding the following after section 294:

Application of fines

294.1 (1) Subject to regulations made under section 278, 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

294.2 (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.

Minister may refuse or suspend permit

294.3 The Minister may refuse to issue a permit or other authorization under this Act, or may cancel such a permit or other authorization, if the applicant or the holder has been convicted of an offence under this Act.

Contraventions Act

294.4 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

294.5 (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 272 to 294.4.

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.

87. Paragraph 296(1)(b) of the Act is replaced by the following:

(b) the offence alleged to have been committed is an offence under this Act, except an offence

(i) in respect of the contravention of subsection 16(4), 81(1), (2), (3) or (4), 82(1) or (2), 84(2) or 96(4), section 99, subsection 106(1), (2), (3) or (4), 107(1) or (2), 109(1) or (2), 119(1), 148(1), 202(4) or 213(4) or section 227 or 228, or any obligation or prohibition arising from any of those provisions,

(ii) for failing to comply with

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

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

(iii) under any of paragraphs 272(1)(k) and (l) and subsections 274(1) and (2);

88. Section 297 of the Act is replaced by the following:

Sentencing considerations

297. If an information in respect of an offence of contravening an agreement has been laid and proceedings in respect of the alleged offence for which the agreement was entered into have been recommenced, the court imposing a sentence for either offence shall take into account, in addition to the principles and factors referred to in section 287.1, any sentence that has previously been imposed for the other offence.

R.S., c. I-20

INTERNATIONAL RIVER IMPROVEMENTS ACT

89. Section 2 of the International River Improvements 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;

90. (1) The portion of section 3 of the French version of the Act before paragraph (a) is replaced by the following:

Règlements

3. Aux fins de l’aménagement et de l’utilisation des ressources en eau du Canada dans l’intérêt national, le gouverneur en conseil peut prendre des règlements :

(2) Section 3 of the Act is amended by striking out “and” at the end of paragraph (c) and by replacing paragraph (d) with the following:

(d) respecting the exemption of international river improvements from the operation of this Act;

(e) authorizing the conduct of inspections under this Act in respect of any improvement exempted from the operation of this Act under the authority of regulations made under paragraph (d) and setting out the purposes for which those inspections may be carried out; and

(f) designating provisions of the regulations for the purpose of paragraph 33(1)(b).

91. Sections 4 to 6 of the Act are replaced by the following:

Constructing, operating, etc., improvement without licence or contrary to a licence

4. Except in accordance with a licence issued under this Act, no person shall construct, operate or maintain an international river improvement.

92. Section 7 of the Act is renumbered as subsection 7(1) and is amended by adding the following:

Inspections permitted

(2) Despite subsection (1), inspections may be carried out under this Act in respect of any international river improvement referred to in paragraph (1)(c) to verify that the improvement is being constructed or continues to be operated or maintained solely for domestic, sanitary or irrigation purposes or other similar consumptive uses.

93. Section 10 of the Act is replaced by the following:

Explanatory Notes

Canadian Environmental Protection Act, 1999

Clause 52: Existing text of subsection 159(3):

(3) The Minister may not detain any vehicle, engine, equipment or component for more than 30 days after completion of the tests conducted under subsection (2) unless, before that time, proceedings have been instituted in respect of an offence related to the vehicle, engine, equipment or component, in which case it may be detained until the proceedings are concluded.

Clause 53: New.

Clause 54: (1) Existing text of subsection 218(7):

(7) For the purposes of this Act and the regulations, an enforcement officer may, at any reasonable time, direct that any conveyance be stopped or be moved to a place where an inspection can be carried out and may, for a reasonable time, detain any conveyance, platform or other structure.

(2) Existing text of subsection 218(11):

(11) An enforcement officer who takes a sample under paragraph (10)(d) may dispose of it in any manner that the enforcement officer considers appropriate.

Clause 55: Existing text of subsection 220(2):

(2) Where 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 under section 272 by an owner of any ship, aircraft, platform or other structure, the justice may issue a warrant authorizing an enforcement officer, or authorizing any other person named in the warrant, to seize the ship, aircraft, platform or structure anywhere in Canada and, in the case of a ship, platform or structure, within Canadian waters.

Clause 56: Existing text of subsection 222(2):

(2) Anything referred to in subsection (1) that has been seized under section 220, or any security given to the Minister under subsection (1), shall be returned or paid to the person from whom the thing was seized within 30 days after the seizure unless, before the expiry of those 30 days, proceedings are instituted in respect of an offence under section 272 alleged to have been committed by the owner of the thing.

Clause 57: Existing text of subsection 225(1):

225. (1) Where an enforcement officer has reasonable grounds to believe that the owner or master of a ship has committed an offence under section 272 and that a ship was used in connection with the commission of the offence, the enforcement officer may make a detention order in respect of the ship.

Clause 58: Existing text of section 226:

226. An enforcement officer or analyst or any other person may, while carrying out powers, duties or functions under this Act, enter on and pass through or over private property without being liable for trespass or without the owner of the property having the right to object to that use of the property.

Clause 59: New.

Clause 60: Existing text of section 231:

231. Where the owner of any ship, aircraft, platform or other structure has been convicted of an offence under section 272, the convicting court may, if the ship, aircraft, platform or structure was seized under section 220 or subsection 223(1), in addition to any other penalty imposed, order that the ship, aircraft, platform or structure, or any security given under subsection 222(1), be forfeited, and on the making of such an order the ship, aircraft, platform, structure or security is forfeited to Her Majesty in right of Canada.

Clause 61: (1) Existing text of subsection 235(1):

235. (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 in the circumstances described in subsection (2) by a person who is continuing the commission of the offence, or that any of those provisions will be contravened in the circumstances described in that subsection, the enforcement officer may issue an environmental protection compliance order directing any person described in subsection (3) to take any of the measures referred to in subsection (4) and, where applicable, subsection (5) that are reasonable in the circumstances and consistent with the protection of the environment and public safety, in order to cease or refrain from committing the alleged contravention.

(2) Existing text of subsection 235(3):

(3) Subsection (1) applies to any person who

(a) owns or has the charge, management or control of the substance or any product containing the substance to which the alleged contravention relates or the property on which the substance or product is located; or

(b) causes or contributes to the alleged contravention.

(3) to (5) Relevant portion of subsection 235(4):

...

(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 ship, move the ship into port or, in the case of an aircraft, land the aircraft;

...

(f) take any other measure that the enforcement officer considers necessary to facilitate compliance with the order or to protect or restore the environment, including, but not limited to,

(6) and (7) Relevant portion of subsection 235(6):

(6) Subject to section 236, an order must be made in writing and must set out

...

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

...

(d) the measures to be taken and the manner in which they are to be carried out;

(e) the period within which a measure is to begin and is to be carried out;

(8) Existing text of subsection 235(7):

(7) An order may not be issued for a period of more than 180 days.

Clause 62: Existing text of subsection 236(1):

236. (1) In the case of exigent circumstances, an order may be given orally, but within the period of seven days immediately after it is so given, a written order must be issued in accordance with section 235.

Clause 63: Relevant portion of subsection 237(1):

237. (1) Except in exigent circumstances, the enforcement officer shall, wherever practicable, before issuing an order,

...

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

Clause 64: Existing text of subsection 238(2):

Clause 65: (1) Existing text of subsection 239(1):

239. (1) Where any person fails to take any measures specified in an order, an enforcement officer may take the measures or cause them to be taken.

(2) Existing text of subsection 239(3):

(3) Any person, other than a person described in subsection 235(3), who provides assistance or advice in taking the measures specified in an order or who takes any measures authorized 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.

Clause 66: (1) Existing text of subsection 240(3):

(3) Subject to subsection (4), the persons referred to in subsection (1) are jointly and severally liable or solidarily liable for the costs and expenses referred to in that subsection.

(2) Existing text of subsections 240(5) and (6):

(5) 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 therefor in the name of Her Majesty in right of Canada in any court of competent jurisdiction.

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

Clause 67: (1) Relevant portion of subsection 241(1):

241. (1) At any time before a notice requesting a review of an order is received by the Chief Review Officer, the enforcement officer may, in accordance with section 236, after giving reasonable notice,

(2) Relevant portion of subsection 241(3):

(3) A notice of intent to exercise a power under paragraph (1)(a) shall include

Clause 68: Existing text of section 247:

247. A person is not eligible to be appointed as a review officer unless the person is knowledgeable about the Canadian environment, environmental and human health, administrative law or traditional aboriginal ecological knowledge.

Clause 69: Existing text of section 257:

257. On receipt of a notice under subsection 256(1), the Chief Review Officer shall conduct a review of the order, including a hearing, or cause a review and hearing of the order to be conducted by a review officer assigned by the Chief Review Officer.

Clause 70: Existing text of section 266:

266. The review officer shall, within five days after the completion of the review of an order, render a decision and give written reasons for doing so within 10 days after the completion of the review, and provide a copy of the decision and those reasons to all persons to whom the order was directed and to the Minister.

Clause 71: New.

Clause 72: Existing text of sections 272 to 275:

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

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

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

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

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

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

(a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both; and

(b) on summary conviction, to a fine of not more than $300,000 or to imprisonment for a term of not more than six months, or to both.

(3) For the purposes of this section, a ship is deemed to be a person in respect of every provision of this Act or the regulations that expressly applies to ships.

273. (1) Every person commits an offence who, with respect to any matter related to this Act or the regulations,

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

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

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

(a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both, if the offence is committed knowingly;

(b) on summary conviction, to a fine of not more than $300,000 or to imprisonment for a term of not more than six months, or to both, if the offence is committed knowingly;

(c) on conviction on indictment, to a fine of not more than $500,000 or to imprisonment for a term of not more than three years, or to both, if the offence is committed negligently; and

(d) on summary conviction, to a fine of not more than $200,000 or to imprisonment for a term of not more than six months, or to both, if the offence is committed negligently.

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

(b) shows wanton or reckless disregard for the lives or safety of other persons and thereby causes a risk of death or harm to another person.

(2) Every person who, in committing an offence under subsection 272(1) or 273(1), shows wanton or reckless disregard for the lives or safety of other persons and thereby causes death or bodily harm to another person is subject to prosecution and punishment under section 220 or 221 of the Criminal Code.

275. (1) Proceedings by way of summary conviction in respect of an offence under this Act may be instituted at any time within, but not later than, two years after the time when the Minister became aware of the subject-matter of the proceedings.

(2) A document purporting to have been issued by the Minister, certifying the day on which the Minister became aware of the subject-matter of any proceedings, shall be received in evidence and, in the absence of any evidence to the contrary, the document shall be considered as proof of that fact without proof of the signature or of the official character of the person appearing to have signed the document and without further proof.

Clause 73: Existing text of section 280:

280. (1) If a corporation commits an offence under this Act or the regulations, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence, and is liable to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.

(2) If a ship commits an offence under this Act or the regulations and the master or the chief engineer of the ship directed, authorized, assented to, acquiesced in or participated in the commission of the offence, the master or chief engineer, as the case may be, is a party to and guilty of the offence, and is liable to the punishment provided for the offence, whether or not the ship has been prosecuted or convicted.

Clause 74: Existing text of subsection 280.1(3):

(3) If a corporation commits an offence arising out of a contravention of Division 3 of Part 7, a regulation made under that Division or an order or direction of, or prohibition or requirement imposed by, the Minister, an enforcement officer or a review officer in connection with an obligation or prohibition under that Division or a regulation made under that Division, every director and officer of the corporation who is in a position to direct or influence 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 to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.

Clause 75: Existing text of subsection 280.2(2):

(2) If a ship commits an offence arising out of a contravention of Division 3 of Part 7, a regulation made under that Division or an order or direction of, or prohibition or requirement imposed by, the Minister, an enforcement officer or a review officer in connection with an obligation or prohibition under that Division or a regulation made under that Division, the master and the chief engineer of the ship are a party to and guilty of the offence, and are liable to the punishment provided for the offence, whether or not the ship has been prosecuted or convicted.

Clause 76: Existing text of sections 280.3 to 280.5:

280.3 (1) Every owner of a ship shall take all reasonable care to ensure that the ship complies, and all persons on board the ship comply, with

(a) Division 3 of Part 7 and regulations made under that Division; and

(2) If a ship commits an offence arising out of a contravention of Division 3 of Part 7, a regulation made under that Division or an order or direction of, or prohibition or requirement imposed by, the Minister, an enforcement officer or a review officer in connection with an obligation or prohibition under that Division or a regulation made under that Division, every director or officer of a corporation that is an owner of the ship who is in a position to direct or influence 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 to the punishment provided for the offence, whether or not the ship has been prosecuted or convicted.

280.4 For greater certainty, section 283 applies to a person who is a party to an offence under subsection 280.1(3), 280.2(2) or 280.3(2).

280.5 For the purpose of prosecuting a ship for contravening a direction made under section 225.1 or an order made under section 235, a direction or an order, as the case may be, that is given to the master or a crew member of the ship is deemed to have been given to the ship.

Clause 77: Existing text of subsection 281.1(2):

(2) If a ship is charged with having committed an offence under this Act or the regulations, the summons may be served by leaving it with the owner, master or any officer of the ship or by posting the summons on some conspicuous part of the ship, and the ship may appear by counsel or representative. Despite the Criminal Code, if the ship does not so appear, a court may, on proof of service of the summons, proceed to hold the trial.

Clause 78: Existing text of subsection 282(1):

282. (1) In any prosecution of an offence under this Act, other than an offence under section 273 if the offence is committed knowingly or under section 228 or 274, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or prosecuted for the offence.

Clause 79: Existing text of section 283:

283. No person shall be found guilty of an offence under this Act, other than an offence under section 273 if the offence is committed knowingly or under section 228 or 274, where the person establishes that the person exercised all due diligence to prevent its commission.

Clause 80: New.

Clause 81: Existing text of the heading and section 287:

Sentencing Criteria

287. A court that imposes a sentence shall take into account, in addition to any other principles that it is required to consider, the following factors:

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

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

(c) whether any remedial or preventive action has been taken or proposed by or on behalf of the offender, including having in place an environmental management system that meets a recognized Canadian or international standard or a pollution prevention plan;

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

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

(f) whether the offender was found by the court to have been negligent or incompetent or to have shown a lack of concern with respect to the commission of the offence;

(g) any property, benefit or advantage received or receivable by the offender to which, but for the commission of the offence, the offender would not have been entitled;

(h) any evidence from which the court may reasonably conclude that the offender has a history of non-compliance with legislation designed to prevent or minimize harm to the environment; and

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

Clause 82: Existing text of subsection 288(2):

(2) Where an order is made under subsection (1) and the offender contravenes or fails to comply with it, or is convicted of an offence under this Act, including an offence under paragraph 272(1)(c), the prosecutor may apply to the court to revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time the order was made.

Clause 83: Existing text of subsection 289(2):

(2) Where the passing of sentence has been suspended under subsection (1) and the offender contravenes or fails to comply with an order made under section 291, or is convicted of an offence under this Act, including an offence under paragraph 272(1)(c), the prosecutor may apply to the court to impose any sentence that could have been imposed if the passing of sentence had not been suspended.

Clause 84: Existing text of section 290:

290. Where an offender has been convicted of an offence under this Act, the court may, where it is satisfied that as a result of the commission of the offence the offender acquired any property, benefit or advantage or that any property, benefit or advantage accrued to the offender, order the offender to pay, despite the maximum amount of any fine that may otherwise be imposed under this Act, an additional fine in an amount equal to the court’s estimation of the amount of that property, benefit or advantage.

Clause 85: (1) to (5) Relevant portion of subsection 291(1):

291. (1) Where an offender has been convicted of an offence under this Act, in addition to any other punishment that may be imposed under this Act, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order having any or all of the following effects:

...

(d) directing the offender to carry out environmental effects monitoring in the manner established by the Minister or directing the offender to pay, in the manner prescribed by the court, an amount for the purposes of environmental effects monitoring;

...

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

(h) directing the offender to notify, at the offender’s own cost and in the manner directed by the court, any person aggrieved or affected by the offender’s conduct of the facts relating to the conviction;

...

(k) directing the offender to compensate the Minister, in whole or in part, for the cost of any remedial or preventive action taken by or caused to be taken on behalf of the Minister as a result of the act or omission that constituted the offence;

...

(m) directing that the amount of any fine or other monetary award be allocated, subject to the Criminal Code and any regulations that may be made under section 278, in accordance with any directions of the court that are made on the basis of the harm or risk of harm caused by the commission of the offence;

...

(q) requiring the offender to comply with any other reasonable conditions that the court considers appropriate and just in the circumstances for securing the offender’s good conduct and for preventing the offender from repeating the same offence or committing other offences.

(6) Existing text of subsections 291(2) to (4):

(2) Where an offender fails to comply with an order made under paragraph (1)(g) directing the publication of the facts relating to the offence, the Minister may publish the facts in compliance with the order and recover the costs of publication from the offender.

(3) Where the court makes an order under paragraph (1)(k) directing an offender to pay costs or the Minister incurs publication costs under subsection (2), the costs constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.

(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.

Clause 86: New.

Clause 87: Relevant portion of subsection 296(1):

296. (1) Environmental protection alternative measures may be used to deal with a person who is alleged to have committed an offence under this Act only if it is not inconsistent with the purposes of this Act and the following conditions are met:

...

(b) the offence alleged to have been committed is an offence under this Act, except an offence under

(i) paragraph 272(1)(a) or (b), in respect of subsection 16(4), 81(1), (2), (3) or (4), 82(1) or (2), 84(2) or 96(4), section 99, subsection 106(1), (2), (3) or (4), 107(1) or (2), 109(1) or (2), 119(1), 148(1), 202(4) or 213(4) or section 227 or 228,

(ii) paragraph 272(1)(c), (d) or (e),

(iii) subsection 273(1), if the offence is committed knowingly, or

(iv) subsection 274(1) or (2);

Clause 88: Existing text of section 297:

297. Where an information in respect of an offence of contravening an agreement under section 272 has been laid and proceedings in respect of the alleged offence for which the agreement was entered into have been recommenced, the court imposing a sentence for either offence shall take into account, in addition to the factors referred to in section 287, any sentence that has previously been imposed for the other offence.

International River Improvements Act

Clause 89: New.

Clause 90: (1) and (2) Relevant portion of section 3:

3. The Governor in Council may, for the purpose of developing and utilizing the water resources of Canada in the national interest, make regulations

...

(d) excepting any international river improvements from the operation of this Act.

Clause 91: Existing text of sections 4 to 6:

4. No person shall construct, operate or maintain an international river improvement unless that person holds a valid licence therefor issued under this Act.

PUNISHMENT

5. Every person who contravenes this Act or any regulation is guilty of an offence and liable

(a) on conviction on indictment to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding five years or to both; or

(b) on summary conviction to a fine not exceeding five hundred dollars or to imprisonment for a term not exceeding six months or to both.

6. (1) The Governor in Council may order that any international river improvement or part thereof constructed, operated or maintained in contravention of this Act or the regulations be forfeited to Her Majesty in right of Canada, and any thing so forfeited may be removed, destroyed or otherwise disposed of as the Governor in Council directs.

(2) The costs of and incidental to any removal, destruction or disposition under subsection (1), less any sum that may be realized from the sale or other disposition thereof, are recoverable by Her Majesty in right of Canada from the owner as a debt due to the Crown.

Clause 92: New.

Clause 93: Existing text of section 10:

10. As soon as practicable after the 31st day of December of each year, the Minister shall prepare and lay before Parliament a report of the operations under this Act for that year.