Bill C-16

SAGUENAY-ST. LAWRENCE MARINE PARK ACT

108. The definition “enforcement officer” in section 2 of the Saguenay-St. Lawrence Marine Park Act is replaced by the following:

“enforcement officer” means a person designated under section 13 or belonging to a class of persons so designated.

109. Sections 13 and 14 of the Act are replaced by the following:

13. The Minister may designate persons or classes of persons employed in the federal public administration or by a provincial, municipal or local authority or by an aboriginal government, whose duties include law enforcement, to be enforcement officers for the purpose of the enforcement of specified provisions of this Act or the regulations, and for that purpose enforcement officers have the powers and are entitled to the protection provided by law to peace officers within the meaning of the Criminal Code.

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

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

13.2 (1) Every park warden, enforcement officer and person designated under section 13.1 shall be provided with a certificate of designation in a form approved by the Minister and shall take and subscribe an oath prescribed by the Minister.

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

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

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

110. Section 17 of the Act is amended by adding the following after paragraph (m):

(m.1) designating provisions of the regulations for the purpose of subsection 20(1);

111. Section 18 of the Act is replaced by the following:

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

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

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

112. (1) The portion of subsection 19(1) of the Act before paragraph (a) is replaced by the following:

19. (1) A park warden or enforcement officer may

(2) The portion of subsection 19(2) of the Act after paragraph (b) is replaced by the following:

the justice of the peace may issue a warrant authorizing the park warden or enforcement officer named in the warrant to enter and search the place or to open and examine the package or receptacle, subject to any conditions specified in the warrant.

(3) Subsection 19(3) of the Act is replaced by the following:

(3) A park warden or enforcement officer may exercise any powers under subsection (1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would not be practical to obtain one.

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

19.1 (1) Subject to subsections (2) and (3) and sections 21.5 and 21.6, if a park warden or enforcement officer seizes a thing under this Act or under a warrant issued pursuant to the Criminal Code,

(a) sections 489.1 and 490 of the Criminal Code apply; and

(b) the warden or officer, or any person that the warden or officer may designate, shall retain custody of the thing, subject to any order made under section 490 of the Criminal Code.

(2) If the ownership of or the lawful entitlement to a seized thing cannot be ascertained within 30 days after the day on which it was seized, the thing or any proceeds of its disposition are forfeited to Her Majesty in right of Canada if the thing was seized by a park warden or an enforcement officer employed in the federal public administration, or to Her Majesty in right of a province if the thing was seized by an enforcement officer employed by a provincial, municipal or local authority or by an aboriginal government.

(3) If a seized thing is perishable, the park warden or enforcement officer may dispose of it or destroy it, and any proceeds of its disposition must be paid to the lawful owner or person lawfully entitled to possession of the thing, unless proceedings under this Act are commenced within 90 days after the day on which it was seized, in which case the proceeds must be retained by the warden or officer pending the outcome of those proceedings.

19.2 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.

114. Sections 20 to 22 of the Act are replaced by the following:

20. (1) Every person who contravenes any provision of this Act or any provision of the regulations designated by regulations made under paragraph 17(m.1) is guilty of an offence and liable

(a) on conviction on indictment,

(i) in the case of an individual,

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

(B) 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,

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

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

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

(iii) in the case of a corporation that the court has determined under section 20.4 to be a small revenue corporation,

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

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

(b) on summary conviction,

(i) in the case of an individual,

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

(B) 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,

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

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

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

(iii) in the case of a corporation that the court has determined under section 20.4 to be a small revenue corporation,

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

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

(2) Every person who contravenes any provision of the regulations other than a provision designated by regulations made under paragraph 17(m.1) is guilty of an offence and liable

(a) on conviction on indictment,

(i) in the case of an individual,

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

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

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

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

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

(iii) in the case of a corporation that the court has determined under section 20.4 to be a small revenue corporation,

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

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

(b) on summary conviction,

(i) in the case of an individual,

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

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

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

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

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

(iii) in the case of a corporation that the court has determined under section 20.4 to be a small revenue corporation,

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

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

20.1 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.

20.2 If an offence under this Act involves more than one animal, plant or object, the fine to be imposed in respect of that offence may, despite section 20, be the total of the fines that would have been imposed if each of the animals, plants or objects had been the subject of a separate information.

20.3 (1) For the purposes of section 20, a conviction for a particular offence under this Act is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the offender has been previously convicted — under any Act of Parliament, or any Act of the legislature of a province, that relates to environmental or wildlife protection or conservation, or the protection of cultural, historical or archaeological resources — of a substantially similar offence.

(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.

20.4 For the purpose of section 20, 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.

20.5 The court may impose a fine that is less than the minimum amount provided for in subsection 20(1) if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in that subsection.

20.6 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.

20.7 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.

20.8 (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.

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

(a) this Act and the regulations;

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

(c) directions of the superintendent, a park warden or an enforcement officer made under this Act.

21. The fundamental purpose of sentencing for offences under this Act is to contribute to respect for the law protecting the park through the imposition of just sanctions that have as their objectives

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

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

(c) to restore park resources.

21.1 (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.

(2) The aggravating factors are the following:

(a) the offence caused damage or risk of damage to any park resources;

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

(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 the superintendent, a park warden or an enforcement officer of the circumstances that subsequently became the subject of the offence;

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

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

(i) attempted to conceal its commission,

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

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

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

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

(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.

21.2 (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 park or for administering that Fund.

(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).

21.3 (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 any park resources that resulted or may result from the commission of the offence;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(q) directing the person to pay, in the manner prescribed by the court, an amount to environmental or other groups to assist in their work related to the park;

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

(2) If a person is convicted of an offence under this Act and the court suspends the passing of sentence under paragraph 731(1)(a) of the Criminal Code, the court may, in addition to any probation order made under that paragraph, make an order referred to in subsection (1).

(3) If a person does not comply with an order made under subsection (2) or is convicted of another offence, the court may, within three years after the order was made, on the application of the prosecution, impose any sentence that could have been imposed if the passing of sentence had not been suspended.

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

(5) If the court makes an order under paragraph (1)(h) or (l) directing a person to pay an amount to Her Majesty in right of Canada, or if the Minister incurs publication costs under subsection (4), 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.

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

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

(8) 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.

21.4 (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.

(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.

(3) 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.

21.5 Any seized thing that has been forfeited under this Act to Her Majesty in right of Canada or abandoned by its owner may be dealt with and disposed of as the Minister may direct.

21.6 (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.

(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.

22. 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.

22.1 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.

22.2 (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.

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

22.3 (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 20 to 22.2.

(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.

115. (1) The portion of subsection 23(1) of the Act before paragraph (a) is replaced by the following:

23. (1) In addition to the procedures set out in the Criminal Code for commencing a proceeding, proceedings in respect of any prescribed offence may be commenced by a park warden or enforcement officer by

(2) Paragraph 23(2)(b) of the Act is replaced by the following:

(b) include a statement, signed by the park warden or enforcement officer who completes the ticket, that the warden or officer has reasonable grounds to believe that the accused committed the offence;

(3) Subsection 23(3) of the Act is replaced by the following:

(3) If a thing is seized under this Act and proceedings relating to it are commenced by way of the ticketing procedure, the park warden or enforcement officer who completed the ticket shall give written notice to the accused that if the accused pays the prescribed fine within the period set out in the ticket, the thing, or any proceeds realized from its disposition, shall immediately be forfeited to Her Majesty.

(4) Paragraph 23(4)(b) of the Act is replaced by the following:

(b) anything seized from the accused under this Act relating to the offence described in the ticket, or any proceeds realized from its disposition, is forfeited to Her Majesty in right of Canada if the ticket was completed by a park warden or an enforcement officer who is a member of the federal public administration, or is forfeited to Her Majesty in right of Quebec if the ticket was completed by any other enforcement officer.

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

116. (1) Subsection 12(1) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act is replaced by the following:

12. (1) The Minister may designate such persons or classes of persons as the Minister considers necessary to act as officers or analysts for the purposes of this Act or any provision of this Act, and if the person to be designated is an employee, or the class of persons to be designated consists of employees, of the government of a province, the Minister shall only designate that person or class with the agreement of that government.

(2) Subsections 12(3) and (4) of the Act are replaced by the following:

(3) On entering any place under this Act, an officer or analyst shall, on request, show the person in charge or the occupant of the place a certificate, in the form approved by the Minister, certifying that the officer or analyst, as the case may be, has been designated under this section.

(4) No person shall knowingly make any false or misleading statement either orally or in writing to, or obstruct or hinder, an officer or analyst who is carrying out duties or functions under this Act or the regulations.

(5) Officers and analysts are not personally liable for anything they do or omit to do in good faith under this Act.

117. Subsection 14(2) of the Act is replaced by the following:

(1.1) An analyst may, for the purposes of this Act, accompany an officer who is carrying out an inspection of a place under this section, and the analyst may, when accompanying the officer, enter the place and exercise any of the powers described in paragraphs (1)(a) and (b).

(2) For the purposes of carrying out the inspection, an officer may stop a conveyance or direct that it be moved by the route and in the manner that the officer may specify, to a place specified by the officer where the inspection can be carried out.

118. The Act is amended by adding the following after section 14:

14.1 While carrying out duties or functions under this Act, 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.

14.2 The owner or person in charge of a place being inspected under section 14, and every person found in the place, shall

(a) give the 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 officer or analyst with any information with respect to the administration of this Act that he or she may reasonably require.

119. Subsection 20(2) of the Act is repealed.

120. The Act is amended by adding the following after section 20:

20.1 If a thing is seized under this Act or under a warrant issued under the Criminal Code, the importer or exporter, as the case may be, and 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.

121. Subsection 21(1) of the Act is amended by adding the following after paragraph (g):

(g.1) designating provisions of the regulations for the purposes of paragraph 22(1)(b);

122. Section 22 of the Act is replaced by the following:

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

(a) any provision of this Act;

(b) any provision of the regulations designated by regulations made under paragraph 21(1)(g.1); or

(c) any order made under this Act by a court.

(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.

(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.

(4) Every corporation that commits an offence under subsection (1) and that the court determines under section 22.02 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.

(5) The court may impose a fine that is less than the minimum amount provided for in this section 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 this section.

22.01 (1) Every person commits an offence who contravenes any provision of the regulations, other than a provision the contravention of which is an offence under subsection 22(1).

(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.

(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.

(4) Every corporation that commits an offence under subsection (1) and that the court determines under section 22.02 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.

22.02 For the purpose of sections 22 and 22.01, 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.

22.03 (1) For the purposes of subsections 22(2) to (4) and 22.01(2) to (4), 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.

(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, other than a procedure commenced by means of a ticket.

22.04 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.

22.05 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.

22.06 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.

22.07 The fundamental purpose of sentenc- ing for offences under this Act is to contribute, in light of the numerous serious threats to plants and animals and their importance to the environment, to respect for the law regulating international and interprovincial trade in animals and plants 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 the unlawful trade in certain animals and plants and to make it unprofit- able; and

(c) to recover, if possible, certain species of animals and plants unlawfully traded.

22.08 (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.

(2) The aggravating factors are the following:

(a) the offence caused damage or risk of damage, directly or indirectly, to animals or plants;

(b) the offence caused damage or risk of damage to a unique, rare, particularly important or vulnerable species of animal or plant or population of animals or plants;

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

(d) the offender profited, or intended to profit, by committing the offence;

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

(f) the offence involved a high degree of planning.

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

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

(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.

22.09 If an offence under this Act involves more than one animal or plant, or part or derivative of an animal or plant, the fine to be imposed in respect of that offence may, despite sections 22 and 22.01, be the total of the fines that would have been imposed if each of the animals, plants, parts or derivatives had been the subject of a separate information.

22.1 If an offence under this Act is committed or continued on more than one day, it is deemed to be a separate offence for each day on which the offence is committed or continued.

22.11 (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.

(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).

22.12 (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 could, in the opinion of the court, result in the continuation or repetition of the offence;

(b) directing the person to take any action that the court considers appropriate to remedy or avoid any harm to any animal or plant to which any provision of this Act applies that resulted or may result from the commission of the offence;

(c) 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;

(d) 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 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;

(e) 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;

(f) directing the person to perform community service in accordance with any reasonable conditions that may be specified in the order;

(g) 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 subsection;

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

(i) 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 the conviction, any information respecting the activities of the person that the court considers appropriate in the circumstances;

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

(k) requiring the person to surrender to the Minister any permit issued under this Act to the person; and

(l) prohibiting the person from applying for any new permit under this Act during any period that the court considers appropriate.

(2) If a person fails to comply with an order made under paragraph (1)(c), 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 offender.

(3) If the court makes an order under paragraph (1)(e) or (h) 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.

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

(5) If the court makes an order under paragraph (1)(k), 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.

(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.

22.13 If a person is convicted of an offence under this Act and the court suspends the passing of sentence pursuant to paragraph 731(1)(a) of the Criminal Code, the court may, in addition to any probation order made under that paragraph, make an order directing the person to comply with any prohibition, direction or requirement mentioned in section 22.12.

22.14 If a person whose sentence has been suspended fails to comply with an order made under 22.12 or is convicted, within three years after the day on which the order was made, of another offence under this Act, the court may, on the application of the prosecution, impose any sentence that could have been imposed if the passing of sentence had not been suspended.

22.15 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.

22.16 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.

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

24. (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.

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

(a) this Act and the regulations; and

(b) orders made under this Act.

124. The Act is amended by adding the following after section 27:

27.1 (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.

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

125. The Act is amended by adding the following after section 28:

28.1 (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 22 to 22.16.

(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.

ENACTMENT OF THE ENVIRONMENTAL VIOLATIONS ADMINISTRATIVE MONETARY PENALTIES ACT

126. The Environmental Violations Administrative Monetary Penalties Act is enacted as follows:

An Act to establish a system of administrative monetary penalties for the enforcement of the Antarctic Environmental Protection Act, the Canada National Marine Conservation Areas Act, the Canada National Parks Act, the Canada Water Act, the Canada Wildlife Act, the Canadian Environmental Protection Act, 1999, the International River Improvements Act, the Migratory Birds Convention Act, 1994, the Saguenay-St. Lawrence Marine Park Act and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act

SHORT TITLE

1. This Act may be cited as the Environmental Violations Administrative Monetary Penalties Act.

INTERPRETATION

2. The following definitions apply in this Act.

“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.

“Environmental Act” means the Antarctic Environmental Protection Act, the Canada National Marine Conservation Areas Act, the Canada National Parks Act, the Canada Water Act, the Canada Wildlife Act, the Canadian Environmental Protection Act, 1999, the International River Improvements Act, the Migratory Birds Convention Act, 1994, the Saguenay-St. Lawrence Marine Park Act or the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.

“Minister” means

(a) with respect to violations that relate to the Antarctic Environmental Protection Act, the Canada Water Act, the Canada Wildlife Act, the Canadian Environmental Protection Act, 1999, the International River Improvements Act, the Migratory Birds Convention Act, 1994 or the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, the Minister of the Environment; and

(b) with respect to violations that relate to the Canada National Marine Conservation Areas Act, the Canada National Parks Act or the Saguenay-St. Lawrence Marine Park Act, the Minister responsible for the Parks Canada Agency.

“penalty” means an administrative monetary penalty imposed under this Act for a violation.

“prescribed” means prescribed by regulation.

“review officer” means a person appointed as a review officer under the Canadian Environmental Protection Act, 1999.

PURPOSE OF ACT

3. The purpose of this Act is to establish, as an alternative to the existing penal system and as a supplement to existing enforcement measures, a fair and efficient administrative monetary penalty system for the enforcement of the Environmental Acts.

HER MAJESTY

4. This Act is binding on Her Majesty in right of Canada or a province.

REGULATIONS

5. (1) The Governor in Council may make regulations

(a) designating as a violation that may be proceeded with in accordance with this Act

(i) the contravention of any specified provision of an Environmental Act or of any of its regulations,

(ii) the contravention of any order or direction, or of any order or direction of any specified class of orders or directions, made under any provision of an Environmental Act or of any of its regulations,

(iii) the failure to comply with any obligation, or with any obligation of any specified class of obligations, arising from an Environmental Act or any of its regulations, or

(iv) the failure to comply with any condition of a permit, licence or other authorization, or any condition of any specified class of conditions of permits, licences or other authorizations, issued under an Environmental Act or any of its regulations;

(b) respecting the determination of, or the method of determining, the amount payable as the penalty for each violation, penalties which may be different for individuals and other persons, and for ships and vessels;

(c) respecting the service of documents required or authorized under this Act, including the manner and proof of service and the circumstances under which documents are deemed to be served;

(d) respecting who can request a review under this Act on behalf of a ship or vessel in relation to an alleged violation by the ship or vessel;

(e) prescribing anything that by this Act is to be prescribed; and

(f) generally, for carrying out the purposes and provisions of this Act.

(2) Only contraventions and failures to comply that are offences under an Environmental Act may be designated under paragraph (1)(a).

(3) With respect to the Canadian Environmental Protection Act, 1999, only a contravention or a failure to comply arising out of any provision of Part 7 and 9 or out of any provision of any regulation made under either of those Parts, may be designated under paragraph (1)(a).

(4) The amount that may be determined under any regulations made under paragraph (1)(b) as the penalty for a violation may not be more than $5,000, in the case of an individual, and $25,000, in the case of any other person or a ship or a vessel.

MINISTER’S POWERS

6. The Minister may

(a) establish the form of notices of violation;

(b) designate persons, or classes of persons, who are authorized to issue notices of violation; and

(c) establish, in respect of each violation, a short-form description to be used in notices of violation.

COMMISSION OF VIOLATIONS

7. Every person, ship or vessel that contravenes or fails to comply with a provision, order, direction, obligation or condition designated by regulations made under paragraph 5(1)(a) commits a violation and is liable to an administrative monetary penalty of an amount to be determined in accordance with the regulations.

8. (1) If a corporation commits a violation, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to an administrative monetary penalty of an amount to be determined in accordance with the regulations, whether or not the corporation has been proceeded against in accordance with this Act.

(2) If a ship or vessel commits a violation, every director or officer of a corporation that is an owner or an operator of the ship or vessel who directed or influenced the corporation’s policies or activities in respect of conduct that is the subject matter of the violation is a party to the violation and is liable to an administrative monetary penalty of an amount to be determined in accordance with the regulations, whether or not the ship or vessel has been proceeded against in accordance with this Act.

(3) If a ship or vessel commits a violation and the owner, operator, master or chief engineer of the ship or vessel directed, authorized, assented to, acquiesced in or participated in the commission of the violation, the owner, operator, master or chief engineer, as the case may be, is a party to the violation and is liable to an administrative monetary penalty of an amount to be determined in accordance with the regulations, whether or not the ship or vessel has been proceeded against in accordance with this Act.

9. (1) In any proceedings under this Act against a person in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee or agent or mandatary of the person, whether or not the agent or mandatary has been proceeded against in accordance with this Act.

(2) In any proceedings under this Act against the master of a ship or vessel for a violation, it is sufficient proof of the violation to establish that it was committed by a crew member or other person on board the ship or vessel, whether or not the crew member or other person has been proceeded against in accordance with this Act.

(3) In any proceedings under this Act against the pilot in command of an aircraft for a violation, it is sufficient proof of the violation to establish that it was committed by a crew member or other person on board the aircraft, whether or not the crew member or other person has been proceeded against in accordance with this Act.

10. (1) If a person designated under paragraph 6(b) believes on reasonable grounds that a person, ship or vessel has committed a violation, the designated person may issue a notice of violation and shall cause it to be served on the person, ship or vessel according to the Regulations.

(2) The notice of violation must

(a) name the person, ship or vessel that is believed to have committed the violation;

(b) set out the relevant facts surrounding the violation;

(c) set out the penalty for the violation;

(d) inform the person, ship or vessel of their right to request a review with respect to the alleged violation or penalty, and of the period within which that right must be exercised;

(e) inform the person, ship or vessel of the manner of paying the penalty set out in the notice; and

(f) inform the person, ship or vessel that, if they do not pay the penalty or exercise their rights referred to in paragraph (d), they will be considered to have committed the violation and that they are liable for the penalty set out in the notice.

RULES ABOUT VIOLATIONS

11. (1) A person, ship or vessel named in a notice of violation does not have a defence by reason that the person or, in the case of a ship or vessel, its owner, operator, master or chief engineer

(a) exercised due diligence to prevent the violation; or

(b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person, ship or vessel.

(2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under an Environmental Act applies in respect of a violation to the extent that it is not inconsistent with this Act.

12. A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.

13. (1) Proceeding with any act or omission as a violation under this Act precludes proceeding with it as an offence under an Environmental Act, and proceeding with it as an offence under an Environmental Act precludes proceeding with it as a violation under this Act.

(2) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.

14. No notice of violation in respect of a violation may be issued more than two years after the day on which the subject matter of the violation arises.

REVIEWS

15. A person, ship or vessel that is served with a notice of violation may, within 30 days after the day on which the notice is served, or within any longer period that the Chief Review Officer allows, make a request to the Chief Review Officer for a review of the penalty or the facts of the alleged violation, or both.

16. At any time before a request for a review in respect of a notice of violation is received by the Chief Review Officer, a person designated under paragraph 6(b) may cancel the notice of violation or correct an error in it.

17. On receipt of a request made under section 15, the Chief Review Officer shall conduct the review or cause the review 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.

18. The person, ship or vessel that requests the review and the Minister may appear in person or may be represented by counsel or by any other representative.

19. (1) The review officer or panel conducting the review may summon any person to appear as a witness and may order the witness to

(a) give evidence orally or in writing; and

(b) produce any documents and things that the review officer or panel considers necessary for the purpose of the review.

(2) Any summons issued or order made under subsection (1) may be made a summons or an order of the Federal Court or of the superior court of a province and is enforceable in the same manner as a summons or an order of that court.

(3) To make a summons issued or an order made under subsection (1) a summons or an order of the Federal Court or of the superior court of a province, the usual practice and procedure of the court in such matters may be followed, or a certified copy of the summons or order may be filed with the court’s registrar and the summons or order then becomes a summons or an order of that court.

(4) A witness who is served with a summons is entitled to receive the fees and allowances to which persons who are summoned to appear as witnesses before the Federal Court are entitled.

20. (1) After giving the person, ship or vessel that requested the review and the Minister reasonable notice orally or in writing of a hearing and allowing a reasonable opportunity in the circumstances for the person, ship or vessel and the Minister to make oral representations, the review officer or panel conducting the review shall determine whether the person, ship or vessel committed a violation.

(2) The Minister has the burden of establishing, on a balance of probabilities, that the person, ship or vessel committed the violation.

(3) If the review officer or panel determines that the penalty for the violation was not determined in accordance with the regulations, the review officer or panel shall correct the amount of the penalty.

21. The review officer or panel shall render their determination in writing within 30 days after the day on which the review is completed and, without delay, provide the Minister and the person, ship or vessel to which the determination relates with a copy of the determination and reasons.

22. If the review officer or panel determines that a person, ship or vessel has committed a violation, the person, ship or vessel is liable for the amount of the penalty as set out in the decision.

23. A determination made under section 21 is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.

24. The Chief Review Officer may make rules

(a) to govern the practice and procedure in respect of reviews under this Act;

(b) generally, to set out the work of review officers in respect of reviews under this Act; and

(c) to prevent trade secrets and information described in section 20 of the Access to Information Act from being disclosed or made public as a result of their being used as evidence in a review under this Act, including rules to provide for hearings or parts of hearings to be held in public or in private.

RESPONSIBILITY

25. If a person, ship or vessel pays the penalty set out in a notice of violation, the person, ship or vessel is considered to have committed the violation and proceedings in respect of it are ended.

26. A person, ship or vessel that neither pays a penalty imposed under this Act nor requests a review in the prescribed time is considered to have committed the violation and is liable for the penalty.

RECOVERY OF PENALTIES

27. (1) A penalty constitutes a debt due to Her Majesty in right of Canada and may be recovered in the Federal Court or any other court of competent jurisdiction.

(2) No proceedings to recover the debt may be instituted more than five years after the day on which the debt becomes payable.

(3) All penalties received by the Receiver General in respect of the commission of a violation 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.

28. (1) The Minister may issue a certificate certifying the unpaid amount of any debt referred to in subsection 27(1).

(2) Registration in the Federal Court or in any other court of competent jurisdiction of a certificate issued under subsection (1) has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.

GENERAL

29. In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 10(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.

COORDINATING AMENDMENT

127. (1) If section 2.2 of the schedule to the Contraventions Act comes into force before section 115 of this Act, section 115 of this Act is repealed.

(2) If section 2.2 of the schedule to the Contraventions Act comes into force on the same day as section 115 of this Act, then section 115 of this Act is deemed to have come into force before that section 2.2.

COMING INTO FORCE

128. The provisions of this Act, other than section 127, come into force on a day or days to be fixed by order of the Governor in Council.