Bill C-16
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ENFORCEMENT
Enforcement Officers and Analysts
Designation
10. (1) The Minister may designate as an enforcement officer or analyst for the purpose of this Act or any provision of this Act any person or member of a class of persons who, in the Minister’s opinion, is qualified to be so designated.
Powers
(2) For the purposes of this Act, an enforcement officer has all the powers of a peace officer, but the Minister may specify limits on those powers when designating the enforcement officer.
Limits
(3) The Minister may limit the powers that may be exercised by an enforcement officer or analyst under this Act.
Production of certificate
(4) The Minister must provide every enforce- ment officer and analyst with a certificate of designation that includes any limits under subsection (2) or (3). On entering any place, the enforcement officer or analyst must, if so requested, produce the certificate to the person in charge of the place.
Immunity
11. Enforcement officers and analysts are not personally liable for anything they do or omit to do in good faith under this Act.
Right of passage
12. While carrying out 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.
Inspections
Power to enter and inspect
13. (1) Subject to subsection (2), for the purposes of this Act, an enforcement officer may, at any reasonable time, enter and inspect any place in which the officer believes, on reasonable grounds, there is anything to which this Act applies or any document relating to its administration.
Dwelling-place
(2) An enforcement officer may not enter a dwelling-place without the occupant’s consent or a warrant issued under subsection (3).
Authority to issue warrant — dwelling-places
(3) On ex parte application, a justice may issue a warrant authorizing an enforcement officer named in the warrant to conduct an inspection of a dwelling-place, subject to any conditions specified in the warrant — and authorizing any other person named in the warrant to accompany the enforcement officer and exercise any power specified in the warrant subject to any conditions specified in the warrant — if the justice is satisfied by information on oath that
(a) the conditions for entry described in subsection (1) exist in relation to the dwelling-place;
(b) entry to the dwelling-place is necessary for any purpose relating to the administration of this Act; and
(c) entry to the dwelling-place has been refused or there are reasonable grounds for believing that entry will be refused.
Authority to issue warrant — non-dwellings
(4) On ex parte application, a justice may issue a warrant authorizing an enforcement officer named in the warrant to conduct an inspection of a place other than a dwelling-place, subject to any conditions specified in the warrant — and authorizing any other person named in the warrant to accompany the enforcement officer and exercise any power specified in the warrant subject to any conditions specified in the warrant — if the justice is satisfied by information on oath that
(a) the conditions for entry described in subsection (1) exist in relation to that place;
(b) entry to the place is necessary for any purpose relating to the administration of this Act;
(c) entry to the place has been refused, the enforcement officer was not able to enter without the use of force or the place was abandoned; and
(d) subject to subsection (5), all reasonable attempts were made to notify the owner, operator or person in charge of the place.
Waiving notice
(5) The justice may waive the requirement to give notice under paragraph (4)(d) if he or she is satisfied that attempts to give the notice would be unsuccessful because the owner, operator or person in charge is absent from the jurisdiction of the justice or that it is not in the public interest to give the notice.
Use of force
(6) In executing a warrant issued under subsection (3) or (4), an enforcement officer shall not use force unless its use has been specifically authorized in the warrant.
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.
Enforcement officer’s powers
(8) In carrying out an inspection of a place under this section, an enforcement officer may, for the purposes of this Act,
(a) examine any thing relevant to the administration of this Act that is found in the place;
(b) open and examine any receptacle or package found that the officer believes on reasonable grounds contains any thing referred to in paragraph (a);
(c) examine any books, records, electronic data or other documents that the officer believes on reasonable grounds contain any information relevant to the administration of this Act and make copies of them or take extracts from them;
(d) take samples of anything relevant to the administration of this Act; and
(e) conduct any tests or take any measurements.
Analysts
(9) An analyst may, for the purposes of this Act, accompany an enforcement officer who is carrying out an inspection of a place under this section, and the analyst may, when accompanying the enforcement officer, enter the place and exercise any of the powers described in subsection (8).
Disposition of samples
(10) An enforcement officer or analyst may dispose of a sample taken under paragraph 8(d) in any manner that the officer or analyst considers appropriate.
Operation of computer systems and copying equipment
(11) In carrying out an inspection, an enforcement officer may
(a) use or cause to be used any computer system or data processing system at the place being inspected to examine any data contained in, or available to, the system;
(b) reproduce any record, or cause it to be reproduced from the data, in the form of a printout or other intelligible output and remove the printout or other output for examination or copying; and
(c) use or cause to be used any copying equipment at the place being inspected to make copies of any books, records, electronic data or other documents.
Duty of person in possession or control
(12) Every person who is in possession or control of a place being inspected under this section shall permit the enforcement officer to do anything referred to in subsection (11).
Production of documents and samples
14. (1) The Minister may, for the purposes of this Act, by registered letter or by a demand served personally, require any person, within any reasonable time and in any reasonable manner that may be stipulated in the letter or demand,
(a) to produce at a place specified by the Minister any sample taken or any document; or
(b) to conduct any tests or take any measurements or samples there.
Compliance
(2) Any person who is required to do anything under subsection (1) shall, despite any other law to the contrary, comply with the requirement.
Search and Seizure
Search and seizure without warrant
15. For the purpose of this Act and the regulations, an enforcement officer may exercise the powers of search and seizure provided in section 487 of the Criminal Code without a search warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would not be feasible to obtain it.
Assistance to Enforcement Officers and Analysts
Assistance
16. The owner or the person in charge of a place entered by an enforcement officer or analyst under this Act, and every person found in the place, shall
(a) give the enforcement officer or analyst all reasonable assistance to enable the officer or analyst to carry out their duties or functions under this Act; and
(b) provide the enforcement officer or analyst with any information with respect to the administration of this Act that the officer or analyst may reasonably require.
Miscellaneous Provisions
Custody of things seized
17. (1) Subject to subsection (2), if an enforcement officer seizes a thing under this Act or under a warrant issued under the Criminal Code,
(a) sections 489.1 and 490 of the Criminal Code apply; and
(b) the officer, or any person that the officer may designate, shall retain custody of the thing subject to any order made under section 490 of the Criminal Code.
Forfeiture if ownership not ascertainable
(2) If the lawful ownership of or entitlement to a seized thing cannot be ascertained within 30 days after the day on which it is seized, the thing, or any proceeds of its disposition, are forfeited to Her Majesty in right of Canada.
Disposition by Minister
18. Any thing that has been forfeited under this Act may be dealt with and disposed of as the Minister may direct.
Liability for costs
19. If a thing is seized under this Act or under a warrant issued under the Criminal Code, 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.
Compliance Orders
Meaning of “order”
20. For the purpose of sections 21 to 30, “order” means a compliance order issued under section 21.
Order
21. (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 a compliance order directing any person who causes or contributes to the alleged contravention, or who is likely to do so, to take any of the measures referred to in subsection (2) that are reasonable in the circumstances in order to cease or refrain from committing the alleged contravention.
Specific measures
(2) 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;
(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, including, but not limited to,
(i) maintaining records on any relevant matter,
(ii) reporting periodically to the officer, and
(iii) submitting to the enforcement officer any information, proposal or plan specified by the officer that sets out any action to be taken by the person with respect to the subject matter of the order.
Contents of order
(3) Subject to section 22, an order must be made in writing and must set out
(a) the name of the person or persons to whom the order is directed;
(b) the provision of this Act or the regulations that is alleged to have been or that is likely to be contravened;
(c) the relevant facts surrounding the alleged contravention;
(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 (4), 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
(4) An order may not be in force for a period of more than 180 days.
Failing to file report
(5) 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
(6) An order is not a statutory instrument for the purposes of the Statutory Instruments Act.
Exigent circumstances
22. (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 21.
Meaning of “exigent circumstances”
(2) For greater certainty, “exigent circumstances” includes circumstances in which the delay that is necessary to issue a written order that meets the requirements of subsection 21(3) would result in danger to human life or to the environment.
Notice of intent
23. (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
24. (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 22(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
25. (1) If a person to whom an order is directed fails to take any measures specified in it, 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 referred to in subsection 21(1), 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
26. (1) Her Majesty in right of Canada may recover the costs and expenses of and incidental to any measures taken under subsection 25(1) from any person who caused or contributed to the alleged contravention, 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.
Procedure
(3) 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
(4) This section does not limit or restrict any right of recourse or indemnity that a person may have against any other person.
Limitation period
(5) 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
(6) 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
27. (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
28. (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;
(c) correct a clerical error in the order; or
(d) extend the duration of the order for a period of not more than 180 days less the number of days that have passed after 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
29. The Minister may make regulations
(a) prescribing the form of reporting to enforcement officers under subparagraph 21(2)(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 23(1)(b) or 28(2)(b).
Review
30. 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.
OBSTRUCTION AND FALSE INFORMATION
Obstruction
31. No person shall obstruct an enforcement officer or analyst or hinder any of them in carrying out their functions under this Act.
Knowingly providing false or misleading information, etc.
32. (1) No person 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 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.
OFFENCES AND PUNISHMENT
Offence
33. (1) Every person commits an offence who contravenes
(a) section 4, subsection 24(1), section 31 or subsection 32(1);
(b) any provision of the regulations designated by regulations made under paragraph 3(e); or
(c) an order made by a court under this Act.
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 five 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 six months, or to both.
Penalty — other persons
(3) Every person, other than an individual or a corporation referred to in subsection (4), who commits and 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 37 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
34. (1) Every person commits an offence who contravenes any provision of the Act or the regulations, other than a provision the contravention of which is an offence under subsection 33(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 37 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.
Continuing offences
35. If a contravention of a provision of this Act or of the regulations is committed or continued on more than one day, it constitutes a separate offence for each day on which it is committed or continued.
Deeming — second and subsequent offence
36. (1) For the purposes of sections 33 and 34, 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 water resource management — 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.
Determination of small revenue corporation status
37. For the purpose of sections 33 and 34, 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
38. The court may impose a fine that is less than the minimum amount provided for in any of subsections 33(2) to (4) 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
39. 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
40. If a corporation that has shareholders has been 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 corporation
41. (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.
Directors’ and officers’ duties
(2) Every director and officer of a corporation shall take all reasonable care to ensure that the corporation complies with
(a) this Act and the regulations; and
(b) any orders and directions of, and prohibitions and requirements imposed by, any court, the Minister, enforcement officers and analysts.
Fundamental purpose of sentencing
42. The fundamental purpose of sentencing for offences under this Act is to contribute to respect for this Act 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 harms water resources; and
(c) to restore the environment harmed by the offence.
Sentencing principles
43. (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;
(b) the offence caused damage or risk of damage to any unique, particularly important or vulnerable environment;
(c) the damage caused by the offence is extensive, persistent or irreparable;
(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 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 water resource management; 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
(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.
Application of fines
44. (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).
Orders of court
45. (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 opinion of the court, result in the continuation or repetition of the offence;
(b) directing the person to take any action that the court considers appropriate to remedy or avoid any damage to the environment 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 carry out environmental effects monitoring in the manner established by the Minister or directing the person to pay, in the manner specified by the court, an amount for the purposes of environmental effects monitoring;
(e) directing the person to implement an environmental management system that meets a recognized Canadian or international standard specified by the court;
(f) 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;
(g) 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 sustainable water resource management;
(h) 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;
(i) 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;
(j) 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;
(k) 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 costs of assessing appropriate remedial or preventive action;
(l) directing the person to perform community service, subject to any reasonable conditions that may be imposed in the order;
(m) requiring the person to surrender to the Minister any licence issued under the regulations to the person;
(n) prohibiting the person from applying for any new licence under the regulations during any period that the court considers appropriate; and
(o) requiring the person to comply with any other conditions that the court considers appropriate for securing the offender’s good conduct and for deterring the person and any other person from committing offences under this Act.
Publication
(2) If a person fails to comply with an order made under paragraph (1)(h), 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
(3) If the court makes an order under paragraph (1)(g) or (k) 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)(k) directing a person to pay an amount to another person, other than to Her Majesty in right of Canada, 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 licences
(5) If the court makes an order under paragraph (1)(m), any licence 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.
Forfeiture
46. (1) If a person is convicted of an offence under this Act, the court may, in addition to any punishment imposed, order that any seized thing by means of or in relation to which the offence was committed, or any proceeds of its disposition, be forfeited to Her Majesty in right of Canada.
Return if no forfeiture ordered
(2) If the court does not order the forfeiture, the seized thing or the proceeds of its disposition shall be returned or paid to its lawful owner or the person lawfully entitled to it.
Retention or sale
47. If a fine is imposed on a person who is convicted of an offence, any seized thing, or any proceeds of its disposition, may be retained until the fine is paid or the thing may be sold in satisfaction of the fine and the proceeds applied, in whole or in part, in payment of the fine.
Compensation for loss of property
48. (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
(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.
Limitation period
49. 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.
Publication of information about contraventions
50. (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.
REPORTS
Report — operations under the Act
51. As soon as practicable after the 31st day of December of each year, the Minister shall prepare and cause a report of the operations under this Act for that year to be tabled in each House of Parliament.
Review — sections 33 to 50
52. (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 33 to 50.
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.
1994, c. 22
MIGRATORY BIRDS CONVENTION ACT, 1994
94. Subsection 2(1) of the Migratory Birds Convention Act, 1994 is amended by adding the following in alphabetical order:
“Chief Review Officer”
« réviseur-chef »
« 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;
95. The Act is amended by adding the following after section 6:
Immunity
6.1 Game officers and persons acting under a game officer’s direction and control are not personally liable for anything they do or omit to do in good faith under this Act.
2005, c. 23, s. 6(3)
96. Subsection 7(2) of the Act is replaced by the following:
Stopping and detaining conveyances
(2) A game officer may, at any reasonable time, direct that a 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 a conveyance.
2005, c. 23, s. 7
97. Section 8.2 of the French version of the Act is replaced by the following:
Droit de passage
8.2 La personne qui exerce des fonctions au titre de la présente loi, ainsi que toute personne agissant sous sa direction ou son autorité, peuvent pénétrer dans une propriété privée et y circuler sans engager de responsabilité à cet égard et sans que personne ne puisse s’y opposer.
98. Section 10 of the French version of the Act is replaced by the following:
Disposition par le ministre
10. Il est disposé des objets confisqués ou abandonnés au titre de la présente loi conformément aux instructions du ministre.
99. Section 11 of the Act is replaced by the following:
Liability for costs
11. If a thing is seized under this Act or under a warrant issued under the Criminal Code, 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.
100. The Act is amended by adding the following after section 11.1:
Definition of “order”
11.2 For the purpose of sections 11.21 to 11.3, “order” means a compliance order issued under section 11.21.
Compliance order
11.21 (1) Whenever, during the course of an inspection or a search, a game officer has reasonable grounds to believe that any provision of this Act or the regulations has been contravened by a person that is continuing the commission of the offence, or that any of those provisions are likely to be contravened, the game officer may issue a 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 and conservation of migratory birds and their nests and with public safety in order to cease or refrain from committing the alleged contravention.
Persons subject to order
(2) Subsection (1) applies to any person who
(a) owns or has the charge, management or control of the substance to which the alleged contravention relates or the property on which the substance is located;
(b) causes or contributes to the alleged contravention; or
(c) is likely to cause or contribute to the alleged contravention.
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 game 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 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 game officer considers necessary to facilitate compliance with the order or to protect or restore migratory birds or their nests, including, but not limited to,
(i) maintaining records on any relevant matter,
(ii) reporting periodically to the game officer, and
(iii) submitting to the game officer any information, proposal or plan specified by the game 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 11.22, an order must be made in writing and must set out
(a) the name of the person or persons to whom the order is directed;
(b) the provision of this Act or the regulations that is alleged to have been or is likely to be contravened;
(c) the relevant facts surrounding the alleged contravention;
(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
11.22 (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 11.21.
Definition 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 11.21(4) would result in danger to human life or the environment, including migratory birds.
Notice of intent
11.23 (1) Except in exigent circumstances, a game 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 game officer within the period stated in the notice.
Compliance with order
11.24 (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 a game officer in an order given orally under subsection 11.22(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 game officer
11.25 (1) If a person to whom an order is directed fails to take any measures specified in the order, a game officer may take the measures or cause them to be taken.
Access to property
(2) A game officer or other person authorized or required by a game 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 subsection 11.21(2), who provides assistance or advice in taking the measures specified in an order or who takes any measures authorized or required by a game 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
11.26 (1) Her Majesty in right of Canada may recover the costs and expenses of and incidental to any measures taken under subsection 11.25(1) from
(a) any person referred to in paragraph 11.21(2)(a); or
(b) any person referred to in paragraph 11.21(2)(b) 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.
Limitation
(4) A person referred to in paragraph 11.21(2)(b) may not be held liable under subsection (3) to an extent greater than the extent of their negligence in causing or contributing to the alleged contravention.
Procedure
(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 in the name of Her Majesty in right of Canada in any court of competent jurisdiction.
Recourse or indemnity
(6) This section does not limit or restrict any right of recourse or indemnity that a person may have against any other person.
Limitation period
(7) 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
(8) 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
11.27 (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
11.28 (1) At any time before a notice requesting a review of an order is received by the Chief Review Officer, the game 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;
(c) correct a clerical error in the order; or
(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, a game 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 game officer within the period stated in the notice.
Regulations
11.29 The Minister may make regulations
(a) prescribing the form of reporting to game officers under subparagraph 11.21(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 game officers under paragraph 11.23(1)(b) or 11.28(2)(b).
Review
11.3 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.
101. Subsection 12(1) of the Act is amended by striking out “and” at the end of paragraph (j.1), by adding “and” at the end of paragraph (k) and by adding the following after paragraph (k):
(l) designating provisions of the regulations for the purposes of paragraphs 13(1)(c) and 13.03(1)(b).
2005, c. 23, s. 9
102. Section 13 of the Act is replaced by the following:
Offence — persons
13. (1) Every person commits an offence who
(a) contravenes section 5, subsection 5.1(1) or (2), paragraph 5.2(a), (c) or (d), subsection 5.3(1), 8.1(6), or 11.24(1);
(b) knowingly contravenes paragraph 5.2(b);
(c) contravenes any provision of the regulations designated by regulations made under paragraph 12(1)(l);
(d) contravenes an order made under subsection 8.1(1) or (2); or
(e) contravenes an order made by a court under this Act.
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 13.02 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
13.01 (1) Every person commits an offence who
(a) contravenes any provision of this Act or the regulations, other than a provision the contravention of which is an offence under subsection 13(1);
(b) negligently contravenes paragraph 5.2(b); or
(c) contravenes an order or direction made under this Act, other than an order the contravention of which is an offence under subsection 13(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 13.02 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
13.02 For the purpose of sections 13 and 13.01, 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
13.03 (1) Every vessel commits an offence that contravenes
(a) section 5.1;
(b) any provision of the regulations designated by regulations made under paragraph 12(1)(l); or
(c) an order or a direction made under this Act, including one made by a court.
Penalty — vessels of 7 500 tonnes deadweight or over
(2) Every 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 other vessel 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
13.04 (1) Every vessel commits an offence that contravenes any provision of this Act or the regulations, other than a provision the contravention of which is an offence under subsection 13.03(1).
Penalty — vessels of 7 500 tonnes deadweight or over
(2) Every 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 other vessel 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
13.05 (1) For the purposes of subsections 13(2) to (4), 13.01(2) to (4), 13.03(2) and (3) and 13.04(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
13.06 The court may impose a fine that is less than the minimum amount provided for in section 13 or 13.03, 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
13.07 If a person or 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 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
13.08 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
13.09 The fundamental purpose of sentenc- ing for offences under this Act is to contribute, in light of the long-standing recognition of the social, cultural and environmental importance of migratory birds, to respect for the law protecting and conserving migratory birds and their nests 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 migratory birds or their nests; and
(c) to reinforce the “polluter pays” principle and to restore migratory birds and their habitats.
Sentencing principles
13.1 (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 migratory birds or their nests;
(b) the offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable population of migratory birds;
(c) the damage caused by the offence is extensive, persistent or irreparable;
(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 a game 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 conservation or protection; 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
(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
13.11 (1) The provisions of this Act and the Criminal Code relating to indictable or summary conviction offences that apply to persons apply also to vessels, with any modifications that the circumstances require.
Direction binds vessel
(2) For the purpose of prosecuting a vessel for contravening a direction or an order made under this Act, other than an order made under section 11.21, any direction or order made under this Act 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 vessel is charged with having committed an offence under this Act, the summons may be served by leaving it with the owner, operator, 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 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.
Proof of offence — vessel
(5) In a prosecution of a vessel for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by a person on board the vessel, whether or not the person is identified or prosecuted for the offence.
Liability of directors, officers, etc., of corporation
13.12 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 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, chief engineers, owners, etc.
13.13 (1) If a vessel commits an offence under this Act and the master, chief engineer, owner or operator of the vessel directed, authorized, assented to, acquiesced in or participated in the commission of the offence, the master, chief engineer, owner, or operator, as the case may be, is a party to the offence and is liable on conviction to the penalty provided for by this Act for an individual for the offence of contravening section 5.1, whether or not the vessel has been prosecuted or convicted.
Liability of directors and officers of corporate owners of vessels
(2) If a vessel commits an offence under this Act and the owner or operator of the vessel is a corporation, every director and officer of the corporation who directed or influenced the corporation’s policies or activities is a party to an offence and is liable on conviction to the penalty provided for by this Act for an individual for the offence of contravening section 5.1, whether or not the vessel has been prosecuted or convicted.
Proof of offence — corporation
13.14 In a prosecution of a corporation for an offence under this Act, other than an offence of contravening paragraph 5.2(a), knowingly contravening paragraph 5.2(b) or contravening paragraph 5.2(c) or (d) or section 5.4 or 5.5, 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 — master or chief engineer
13.15 In a prosecution of a master or chief engineer of a vessel for an offence of contravening paragraph 5.2(a), knowingly contravening paragraph 5.2(b) or contravening paragraph 5.2(c) or (d) or section 5.4 or 5.5, it is sufficient proof of the offence to establish that it was committed by a person on board the vessel, whether or not the person is identified or prosecuted for the offence.
Proof of offence — section 5.4
13.16 In a prosecution of an offence under section 5.4, it is sufficient proof of the offence to establish that a substance was deposited by the vessel contrary to section 5.1.
Due diligence
13.17 A person or vessel that establishes that they exercised due diligence to prevent the commission of an offence under this Act, other than an offence of contravening paragraph 5.2(a), (c) or (d) or section 5.3, shall not be found guilty of the offence.
Continuing offence
13.18 A person or vessel that commits or continues an offence under this Act on more than one day is liable to be convicted for a separate offence for each day on which the offence is committed or continued.
Offences involving more than one bird or nest
13.19 If an offence under this Act involves more than one migratory bird or nest, the fine to be imposed in respect of that offence may, despite sections 13, 13.01, 13.03 and 13.04, be the total of the fines that would have been imposed if each of the migratory birds or nests had been the subject of a separate information.
Application of fines
13.2 (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).
2005, c. 23, s. 12(4)(E)
103. (1) Paragraphs 16(1)(c) and (d) of the Act are replaced by the following:
(b.2) 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 specified by the court, an amount for the purpose of environmental effects monitoring;
(b.3) directing the offender to implement an environmental management system that meets a recognized Canadian or international standard specified by the court;
(b.4) 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 proper management, conservation or protection of migratory birds or their habitat;
(c) directing the offender to publish, in the manner directed 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;
(c.1) 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;
(d) 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;
2005, c. 23, s. 12(6)(E)
(2) Paragraphs 16(1)(g) and (h) of the Act are replaced by the following:
(g) directing the offender to post a bond, provide surety or pay into court an amount of money that the court considers appropriate to ensure compliance with any prohibition, direction or requirement under this section;
(h) 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;
(i) requiring the offender to surrender to the Minister any permit issued under this Act to the offender; and
(j) prohibiting the offender from applying for any new permit under this Act during any period that the court considers appropriate.
2005, c. 23, s. 12(7)
(3) Subsections 16(2) and (3) of the Act are replaced by the following:
Coming into force and duration of order
(1.1) 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.
Publication
(1.2) If an offender fails to comply with an order made under paragraph (1)(c), 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
(1.3) If the court makes an order under paragraph (1)(b.4) or (d) directing an offender to pay an amount to Her Majesty in right of Canada, or if the Minister incurs publication costs under subsection (1.2), 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
(1.4) If the court makes an order under paragraph (1)(d) 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
(1.5) If the court makes an order under paragraph (1)(i), 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.
Compensation for loss of property
(2) The court may also, at the time sentence is imposed and on the application of a person who suffered loss of or damage to property as a result of the commission of the offence — other than an owner or operator of a vessel that committed the offence — order the offender to pay that person compensation for the loss.
Enforcement
(3) If the amount that is ordered to be paid under paragraph (1)(d) or subsection (2) is not paid immediately, the person to whom the amount was ordered to be paid may, by filing the order, enter the amount as a judgment in the superior court of the province in which the trial was held, and the judgment is enforceable against the offender as if it were a judgment rendered against them in that court in civil proceedings.
104. Subsection 17.1(3) of the Act is replaced by the following:
Restriction — damages caused by vessel
(3) A court shall not order an offender to pay compensation to a person under paragraph 16(1)(d) or subsection 16(2) in connection with damage caused by a vessel if the person may make a claim for compensation for the damage under the Marine Liability Act or the Arctic Waters Pollution Prevention Act.
105. Section 18 of the Act is replaced by the following:
Limitation period
18. 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.
106. The Act is amended by adding the following after section 18.2:
Publication of information about contraventions
18.21 (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
18.22 The Minister may refuse to issue a permit under this Act, or may cancel such a permit, if the applicant or the holder has been convicted of an offence under this Act.
Contraventions Act
18.23 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
18.24 (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 13 to 18.23.
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.
2005, c. 23, s. 15
107. Section 18.5 of the Act is repealed.
Explanatory Notes
Migratory Birds Convention Act, 1994
Clause 94: New.
Clause 95: New.
Clause 96: Existing text of subsection 7(2):
(2) A game officer may, at any reasonable time, direct that a conveyance be stopped or be moved to a place where an inspection can be carried out and may, for a reasonable time, detain a conveyance.
Clause 97: Existing text of section 8.2:
8.2 A person who is engaged in carrying out duties or functions under this Act and any person acting under their direction and control 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.
Clause 98: Existing text of section 10:
10. Any thing that has been forfeited or abandoned under this Act must be dealt with and disposed of as the Minister may direct.
Clause 99: Existing text of section 11:
11. The lawful owner and any person lawfully entitled to possession of any thing seized, abandoned or forfeited under this Act are jointly and severally liable for all the costs of inspection, seizure, abandonment, forfeiture or disposition incurred by Her Majesty that exceed any proceeds of the disposition of the thing that have been forfeited to Her Majesty under this Act.
Clause 100: New.
Clause 101: Relevant portion of subsection 12(1):
12. (1) The Governor in Council may make any regulations that the Governor in Council considers necessary to carry out the purposes and provisions of this Act and the Convention, including regulations
Clause 102: Existing text of section 13:
13. (1) A person or vessel commits an offence if the person or vessel contravenes
(a) a provision of this Act or the regulations;
(b) an obligation or prohibition arising from this Act or the regulations;
(c) an order or direction made under this Act; or
(d) an order, direction or decision of a court made under this Act.
(1.1) Every person or vessel that commits an offence 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.
(1.11) In the case of an offence under section 5.1 that is committed by a vessel of 5,000 tonnes deadweight or over,
(a) the fine imposed under paragraph (1.1)(a) shall not be less than $500,000; and
(b) the fine imposed under paragraph (1.1)(b) shall not be less than $100,000.
(1.2) 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 the offence, and is liable on conviction to the penalty provided for by this Act, whether or not the corporation is prosecuted for the offence.
(1.3) In a prosecution of a corporation for an offence under this Act, other than an offence under paragraph 5.2(a), (c) or (d) or section 5.4 or 5.5, 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.
(1.4) In a prosecution of a vessel for an offence under this Act, other than an offence under paragraph 5.2(a), (c) or (d), it is sufficient proof of the offence to establish that it was committed by a person on board the vessel, whether or not the person is identified or prosecuted for the offence.
(1.5) For the purpose of prosecuting a vessel for contravening a direction or order given under this Act, a direction or order given to the master or a crew member is deemed to have been given to the vessel.
(1.6) In a prosecution of a master or chief engineer of a vessel for an offence under this Act, other than an offence under paragraph 5.2(a), (c) or (d) or section 5.3, 5.4 or 5.5, it is sufficient proof of the offence to establish that it was committed by a person on board the vessel, whether or not the person is identified or prosecuted for the offence.
(1.7) In a prosecution of an offence under section 5.4, it is sufficient proof of the offence to establish that a substance was deposited by the vessel contrary to section 5.1.
(1.8) A person or vessel that establishes that they exercised due diligence to prevent the commission of an offence under this Act, other than an offence under paragraph 5.2(a), (c) or (d) or section 5.3, shall not be found guilty of the offence.
(2) If a person or vessel is convicted of an offence under this Act a second or subsequent time, the amount of the fine for the subsequent offence may be double the amount set out in subsection (1.1).
(3) A person or vessel that commits or continues an offence on more than one day is liable to be convicted for a separate offence for each day on which the offence is committed or continued.
(4) Any fine imposed for an offence involving more than one migratory bird or nest may be calculated in respect of each one as though it had been the subject of a separate information and the fine then imposed is the total of that calculation.
(4.1) A court that imposes a sentence shall take the following factors into account, in addition to any other principles that it is required to consider:
(a) the harm or risk of harm caused by the commission of the offence;
(b) whether the offender was found to have committed the offence intentionally, recklessly or inadvertently;
(c) whether the offender was found to have been negligent or incompetent or to have shown a lack of concern with respect to the commission of the offence;
(d) any property, benefit or advantage received or receivable by the offender to which, but for the commission of the offence, the offender would not have been entitled;
(e) any evidence from which the court may reasonably conclude that the offender has a history of non-compliance with this Act or the regulations; and
(f) all available sanctions that are reasonable in the circumstances, with particular attention to the circumstances of aboriginal offenders.
(5) If a person or vessel is convicted of an offence and the court is satisfied that, as a result of the commission of the offence, a monetary benefit accrued to the person or to an owner or operator of the vessel, or another person incurred a monetary loss,
(a) the court may order the offender to pay an additional fine in an amount equal to the court’s estimate of the amount of the monetary benefit or loss; and
(b) the additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.
(6) All fines received by the Receiver General in respect of the commission of an offence under this Act shall be received for the special purpose of protecting and conserving migratory birds or the environment and credited to the Environmental Damages Fund, an account in the accounts of Canada.
Clause 103: (1) and (2) Relevant portion of subsection 16(1):
16. (1) If a person or vessel is convicted of an offence, the court may, in addition to any punishment imposed and having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing one or more of the following prohibitions, directions or requirements:
...
(c) directing the offender to publish, in a manner the court considers appropriate, the facts relating to the commission of the offence;
(d) directing the offender to pay the Minister or the government of a province compensation, in whole or in part, for the cost of any remedial or preventive action taken by or on behalf of the Minister or that government as a result of the commission of the offence;
...
(g) directing the offender to post a bond or pay into court an amount of money that the court considers appropriate to ensure compliance with any prohibition, direction or requirement under this section; and
(h) requiring the offender to comply with any other conditions that the court considers appropriate to secure the offender’s good conduct and to prevent the offender from repeating the offence or committing other offences.
(3) Existing text of subsections 16(2) and (3):
(2) The court may also, at the time sentence is imposed and on the application of a person who incurred a monetary loss as a result of the commission of the offence — other than an owner or operator of a vessel that committed the offence — order the offender to pay that person compensation for the loss.
(3) If the amount that is ordered to be paid is not paid immediately, the applicant may, by filing the order, enter the amount as a judgment in the superior court of the province in which the trial was held, and the judgment is enforceable against the offender as if it were a judgment rendered against them in that court in civil proceedings.
Clause 104: Existing text of subsection 17.1(3):
(3) A court shall not order an offender to pay compensation to the Minister or a government under paragraph 16(1)(d) or to a person under subsection 16(2) in connection with damage caused by a vessel if the Minister, government or person may make a claim for compensation for the damage under the Marine Liability Act or the Arctic Waters Pollution Prevention Act.
Clause 105: Existing text of section 18:
18. (1) Proceedings by way of summary conviction in respect of an offence may be commenced at any time within, but not later than, two years after the day on which the subject-matter of the proceedings became known to the Minister.
(2) A document appearing to have been issued by the Minister, certifying the day on which the subject-matter of any proceedings became known to the Minister, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is proof of the matter asserted in it.
(3) For the purposes of this section, a reference to the Minister includes the provincial minister responsible for the protection of wildlife in the province where the offence is alleged to have been committed.
Clause 106: New.
Clause 107: Existing text of section 18.5:
18.5 (1) The provisions of this Act and the Criminal Code relating to indictable or summary conviction offences that apply to persons apply also to vessels, with any modifications that the circumstances require.
(2) If a vessel is charged with an offence under this Act, the summons may be served on the vessel by leaving it with the master or any officer of the vessel or by posting it on a conspicuous part of the vessel.
(3) The vessel shall appear by counsel or a representative. If the vessel does not appear, a court may, on proof of service of the summons, proceed to hold the trial in the absence of the vessel.
(4) For greater certainty, subsection (3) applies to a trial on an indictment.