Bill C-16
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C-16
Second Session, Fortieth Parliament,
57-58 Elizabeth II, 2009
HOUSE OF COMMONS OF CANADA
BILL C-16
An Act to amend certain Acts that relate to the environment and to enact provisions respecting the enforcement of certain Acts that relate to the environment
AS PASSED
BY THE HOUSE OF COMMONS
MAY 13, 2009
MAY 13, 2009
90456
RECOMMENDATION
Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend certain Acts that relate to the environment and to enact provisions respecting the enforcement of certain Acts that relate to the environment”.
SUMMARY
This enactment amends certain enforcement, offence, penalty and sentencing provisions of the following Acts:
(a) the Antarctic Environmental Protection Act;
(b) the Canada National Marine Conservation Areas Act;
(c) the Canada National Parks Act;
(d) the Canada Wildlife Act;
(e) the Canadian Environmental Protection Act, 1999;
(f) the International River Improvements Act;
(g) the Migratory Birds Convention Act, 1994;
(h) the Saguenay-St. Lawrence Marine Park Act; and
(i) the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.
It adds enforcement officer immunity to the Acts that did not expressly provide any. It also adds the power to designate analysts for the purposes of the Canada Wildlife Act and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. It also adds inspection and search and seizure powers to the International River Improvements Act.
It amends the penalty provisions of the Acts by establishing distinct ranges of fines for different offences, by creating minimum fines for the most serious offences, by increasing maximum fines, by specifying ranges of fines for individuals, other persons, small revenue corporations and ships of different sizes and by doubling the fine amounts for second and subsequent offenders.
It amends the Acts to make the liability and duty provisions of directors, officers, agents and mandataries of corporations, and those of ship masters, chief engineers, owners and operators, consistent between the Acts.
The enactment amends the sentencing provisions of the Acts by adding a purpose clause, by specifying aggravating factors that, if associated with an offence, must contribute to higher fines, by requiring courts to add profits gained or benefits realized from the commission of an offence to fine amounts, by requiring courts to order corporate offenders to disclose details of convictions to their shareholders and by expanding the power of the courts to make additional orders having regard to the nature of the offence and the circumstances surrounding its commission.
The enactment adds to each of the Acts a requirement that details of convictions of corporations be made available to the public and that all fines collected be credited to the Environmental Damages Fund and be available for environmental projects or the administration of that Fund.
This enactment also creates the Environmental Violations Administrative Monetary Penalties Act which establishes an administrative monetary penalty scheme applicable to the Acts listed above as well as to the Canada Water Act.
Also available on the Parliament of Canada Web Site at the following address:
http://www.parl.gc.ca
http://www.parl.gc.ca
TABLE OF PROVISIONS
AN ACT TO AMEND CERTAIN ACTS THAT RELATE TO THE ENVIRONMENT AND TO ENACT PROVISIONS RESPECTING THE ENFORCEMENT OF CERTAIN ACTS THAT RELATE TO THE ENVIRONMENT
SHORT TITLE
1. Environmental Enforcement Act
ANTARCTIC ENVIRONMENTAL PROTECTION ACT
2-19. Amendments
CANADA NATIONAL MARINE CONSERVATION AREAS ACT
20-28. Amendments
CANADA NATIONAL PARKS ACT
29-40. Amendments
CANADA WILDLIFE ACT
41-51. Amendments
CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
52-88. Amendments
INTERNATIONAL RIVER IMPROVEMENTS ACT
89-93. Amendments
MIGRATORY BIRDS CONVENTION ACT, 1994
94-107. Amendments
SAGUENAY-ST. LAWRENCE MARINE PARK ACT
108-115. Amendments
WILD ANIMAL AND PLANT PROTECTION AND REGULATION OF INTERNATIONAL AND INTERPROVINCIAL TRADE ACT
116-125. Amendments
ENACTMENT OF THE ENVIRONMENTAL VIOLATIONS ADMINISTRATIVE MONETARY PENALTIES ACT
126. Enactment of Act
AN ACT TO ESTABLISH A SYSTEM OF ADMINISTRATIVE MONETARY PENALTIES FOR THE ENFORCEMENT OF THE ANTARCTIC ENVIRONMENTAL PROTECTION ACT, THE CANADA NATIONAL MARINE CONSERVATION AREAS ACT, THE CANADA NATIONAL PARKS ACT, THE CANADA WATER ACT, THE CANADA WILDLIFE ACT, THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999, THE INTERNATIONAL RIVER IMPROVEMENTS ACT, THE MIGRATORY BIRDS CONVENTION ACT, 1994, THE SAGUENAY-ST. LAWRENCE MARINE PARK ACT, AND THE WILD ANIMAL AND PLANT PROTECTION AND REGULATION OF INTERNATIONAL AND INTERPROVINCIAL TRADE ACT
SHORT TITLE
1. Environmental Violations Administrative Monetary Penalties Act
INTERPRETATION
2. Definitions
PURPOSE OF ACT
3. Purpose of Act
HER MAJESTY
4. Binding on Her Majesty
REGULATIONS
5. Regulations
MINISTER’S POWERS
6. Powers regarding notices of violation
COMMISSION OF VIOLATIONS
7. Commission
8. Liability of directors, officers, etc. of corporations
9. Proof of violations — persons
10. Issuance and service of notice of violation
RULES ABOUT VIOLATIONS
11. Certain defences not available
12. Continuing violation
13. Violation or offence
14. Limitation period
REVIEWS
15. Right to request review
16. Variation or cancellation of notice of violation
17. Review
18. Right to appear
19. Witnesses
20. Decision
21. Service of copy and reasons
22. Responsibility
23. Determination is final
24. Rules
RESPONSIBILITY
25. Payment
26. Failure to act
RECOVERY OF PENALTIES
27. Debts to Her Majesty
28. Certificate
GENERAL
29. Admissibility of documents
COORDINATING AMENDMENT
127. Contraventions Act
COMING INTO FORCE
128. Order in council
2nd Session, 40th Parliament,
57-58 Elizabeth II, 2009
house of commons of canada
BILL C-16
An Act to amend certain Acts that relate to the environment and to enact provisions respecting the enforcement of certain Acts that relate to the environment
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Short title
1. This Act may be cited as the Environmental Enforcement Act.
2003, c. 20
ANTARCTIC ENVIRONMENTAL PROTECTION ACT
2. (1) Paragraph (b) of the definition “Canadian” in subsection 2(1) of the English version of the Antarctic Environmental Protection Act is replaced by the following:
(b) a corporation established or continued under the laws of Canada or a province.
(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“Chief Review Officer”
« réviseur-chef »
« réviseur-chef »
“Chief Review Officer” means the review officer appointed as Chief Review Officer under subsection 244(1) of the Canadian Environmental Protection Act, 1999 and includes any review officer designated under subsection 244(3) of that Act to perform the functions of the Chief Review Officer.
“vessel”
« bâtiment »
« bâtiment »
“vessel” means a boat, ship or craft designed, used or capable of being used solely or partly for navigation in, on, through or immediately above water, without regard to the method or lack of propulsion, but does not include a fixed platform.
3. (1) Paragraph 26(1)(c) of the French version of the Act is replaced by the following:
c) régir la délivrance, le renouvellement, l’annulation et la suspension des permis et les conditions dont le ministre peut assortir les permis;
(2) Subsection 26(1) of the Act is amended by striking out “and” at the end of paragraph (j) and by adding the following after that paragraph:
(j.1) designating provisions of the regulations for the purposes of paragraphs 50(1)(b) and 50.3(1)(b); and
4. The Act is amended by adding the following after section 29:
Immunity
29.1 Enforcement officers and analysts are not personally liable for anything they do or omit to do in good faith under this Act.
5. (1) Subsection 30(7) of the Act is replaced by the following:
Stopping and detaining conveyances
(7) For the purposes of this Act, an enforcement officer may, at any reasonable time, direct that any conveyance be stopped — or be moved, by the route and in the manner that the officer may specify, to a place specified by the officer where an inspection can be carried out — and the officer may, for a reasonable time, detain any conveyance.
(2) Paragraph 30(8)(a) of the Act is replaced by the following:
(a) direct that the vessel be stopped — or be moved, by the route and in the manner that the officer may specify, to a place specified by the officer where an inspection can be carried out — and the officer may, for a reasonable time, detain the vessel;
(3) Subsection 30(11) of the Act is replaced by the following:
Disposition of samples
(11) An enforcement officer or analyst may dispose of a sample taken under paragraph (9)(d) in any manner that the officer or analyst considers appropriate.
6. Subsection 32(2) of the Act is replaced by the following:
Warrant for seizure of vessel or aircraft
(2) If, on ex parte application, a justice is satisfied by information on oath that there are reasonable grounds to believe that an offence has been committed by a Canadian vessel or any other vessel or the pilot in command of a Canadian aircraft, he or she may issue a warrant authorizing an enforcement officer, or authorizing any other person named in the warrant, to seize the vessel or aircraft anywhere in Canada.
7. The heading before section 37 of the Act is replaced by the following:
Detention of Vessels
8. (1) Subsection 37(1) of the Act is replaced by the following:
Detention
37. (1) An enforcement officer may make a detention order in respect of a Canadian vessel, or any other vessel in Canada, if the enforcement officer has reasonable grounds to believe that
(a) the vessel has committed an offence under this Act; or
(b) an authorized representative of the Canadian vessel or of the other vessel, or the master of the Canadian vessel, has committed an offence under this Act and that the vessel was used in connection with the commission of the offence.
(2) Subsection 37(6) of the Act is replaced by the following:
When clearance given
(6) A person to whom a detention order is addressed and who has received notice of the order may give clearance in respect of the vessel to which the order relates if
(a) the vessel or the authorized representative or master of the vessel, as the case may be,
(i) has not, within 30 days after the day on which the order was made, been charged with the offence that gave rise to the order, or
(ii) has, within 30 days after the day on which the order was made, been charged with that offence and appears in Canada to answer to the charge;
(b) security for payment of the maximum fine that might be imposed as a result of a conviction of the vessel or the person charged with that offence and of costs related to proceedings in connection with the charge, or security for payment of any lesser amount that is approved by the Minister or a person designated by the Minister for the purpose, is given to Her Majesty in right of Canada; or
(c) proceedings in respect of the alleged offence that gave rise to the making of the detention order are discontinued.
Foreign state to be notified
(7) If a vessel to which a detention order relates is registered in a foreign state, that state is to be notified that the order was made.
9. The Act is amended by adding the following after section 37:
Direction of Vessels
Power to direct
37.01 An enforcement officer may direct a Canadian vessel, or any other vessel in Canada, to proceed, by the route and in the manner that the enforcement officer may specify, to any place specified by the enforcement officer if the officer has reasonable grounds to believe that
(a) the vessel is committing, has committed or is about to commit an offence under this Act; or
(b) a person on board the vessel is committing, has committed or is about to commit such an offence and the vessel was, is being or is about to be used in connection with the commission of the offence.
Environmental Protection Compliance Orders
Meaning of “order”
37.02 For the purpose of sections 37.03 to 37.12, “order” means an environmental protection compliance order issued under section 37.03.
Order
37.03 (1) Whenever, during the course of an inspection or a search, an enforcement officer has reasonable grounds to believe that any provision of this Act or the regulations has been contravened by a person who is continuing the commission of the offence, or that any of those provisions are likely to be contravened, the enforcement officer may issue an environmental protection compliance order directing any person described in subsection (2) to take any of the measures referred to in subsection (3) that are reasonable in the circumstances and consistent with the protection of the Antarctic environment and dependent and associated ecosystems, and with public safety, in order to cease or refrain from committing the alleged contravention.
Persons subject to order
(2) Subsection (1) applies to
(a) any person who causes or contributes to the alleged contravention;
(b) any person who is likely to cause or contribute to the alleged contravention; or
(c) in the case of an alleged contravention by a person to whom a permit applies, any person to whom that permit applies.
Specific measures
(3) The order may specify that the person to whom the order is directed take one or more of the following measures:
(a) refrain from doing anything in contravention of this Act or the regulations, or do anything to comply with this Act or the regulations;
(b) stop or shut down any activity, work, undertaking or thing for a specified period;
(c) cease the operation of any activity or any part of a work, undertaking or thing until the enforcement officer is satisfied that the activity, work, undertaking or thing will be operated in accordance with this Act and the regulations;
(d) move any conveyance to another location including, in the case of a Canadian vessel, moving the vessel into port or, in the case of an aircraft, landing the aircraft;
(e) unload or reload the contents of any conveyance; and
(f) take any other measure that the enforcement officer considers necessary to facilitate compliance with the order — or to restore the components of the environment damaged by the alleged contravention or to protect the components of the environment put at risk by the alleged contravention — including, but not limited to,
(i) maintaining records on any relevant matter,
(ii) reporting periodically to the enforcement officer, and
(iii) submitting to the enforcement officer any information, proposal or plan specified by the enforcement officer that sets out any action to be taken by the person with respect to the subject matter of the order.
Contents of order
(4) Subject to section 37.04, an order must be made in writing and must set out
(a) the name of the person or persons to whom it is directed;
(b) the provision of this Act or the regulations that is alleged to have been or that is likely to be contravened;
(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
37.04 (1) In the case of exigent circumstances, an order may be given orally on the condition that it is followed, within seven days, by a written order issued in accordance with section 37.03.
Meaning of “exigent circumstances”
(2) For greater certainty, “exigent circumstances” includes circumstances in which the delay necessary to issue a written order that meets the requirements of subsection 37.03(4) would result in danger to human life or the environment.
Notice of intent
37.05 (1) Except in exigent circumstances, an enforcement officer shall, whenever practicable, before issuing an order,
(a) provide every person who will be subject to the order with an oral or written notice of the officer’s intention to issue it; and
(b) allow a reasonable opportunity in the circumstances for the person to make oral representations.
Contents of notice of intent
(2) The notice of intent to issue the order must include
(a) a statement of the purpose of the notice;
(b) a reference to the statutory authority under which the order is to be issued; and
(c) a statement that the party notified may make oral representations to the enforcement officer within the period stated in the notice.
Compliance with order
37.06 (1) A person to whom an order is directed shall, immediately on receipt of the order or a copy of it or on being directed by an enforcement officer in an order given orally under subsection 37.04(1), comply with the order.
No bar to proceedings
(2) The issuance of or compliance with an order in respect of a person’s alleged contravention of this Act or the regulations is not a bar to any proceedings against the person under this or any other Act in relation to the alleged contravention.
Intervention by enforcement officer
37.07 (1) If a person to whom an order is directed fails to take any measures specified in the order, an enforcement officer may take the measures or cause them to be taken.
Access to property
(2) An enforcement officer or other person authorized or required by an enforcement officer to take measures under subsection (1) may enter and have access to any place or property and may do any reasonable thing that may be necessary in the circumstances.
Personal liability
(3) Any person, other than a person described in paragraph 37.03(2)(a) or (b), who provides assistance or advice in taking the measures specified in an order or who takes any measures authorized or required by an enforcement officer under subsection (1) is not personally liable either civilly or criminally in respect of any act or omission in the course of providing assistance or advice or taking any measures under that subsection unless it is established that the person acted in bad faith.
Recovery of reasonable costs and expenses by Her Majesty
37.08 (1) Her Majesty in right of Canada may recover the costs and expenses of and incidental to any measures taken under subsection 37.07(1) from any person referred to in paragraph 37.03(2)(a) to the extent of the person’s negligence in causing or contributing to the alleged contravention.
Costs must have been reasonably incurred
(2) The costs and expenses may only be recovered to the extent that they can be established to have been reasonably incurred in the circumstances.
Liability
(3) The persons referred to in subsection (1) are jointly and severally, or solidarily, liable for the costs and expenses referred to in that subsection.
Procedure
(4) A claim under this section may be sued for and recovered by Her Majesty in right of Canada with costs in proceedings brought or taken in the name of Her Majesty in right of Canada in any court of competent jurisdiction.
Recourse or indemnity
(5) This section does not limit or restrict any right of recourse or indemnity that a person may have against any other person.
Limitation period
(6) If events giving rise to a claim under this section occur, no proceedings in respect of the claim may be instituted more than five years after the day on which the events occur or become evident to the Minister, whichever is later.
Minister’s certificate
(7) A document purporting to have been issued by the Minister certifying the day on which the events giving rise to a claim under this section came to the knowledge of the Minister shall be received in evidence and, in the absence of any evidence to the contrary, the document is to be considered as proof of that fact without proof of the signature or of the official character of the person appearing to have signed the document and without further proof.
Request for review
37.09 (1) Any person to whom an order is directed may, by notice in writing given to the Chief Review Officer within 30 days after the day on which the person receives a copy of the written order or after the oral order is given, make a request to the Chief Review Officer for a review of the order.
Extension of period for request
(2) The Chief Review Officer may extend the period within which a request for a review may be made if, in his or her opinion, it is in the public interest to do so.
Variation or cancellation of order
37.1 (1) At any time before a notice requesting a review of an order is received by the Chief Review Officer, the enforcement officer may, after giving reasonable notice,
(a) amend or suspend a term or condition of the order, or add a term or condition to, or delete a term or condition from, the order;
(b) cancel the order;
(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, an enforcement officer shall, whenever practicable, before exercising a power under paragraph (1)(a) or (d),
(a) provide every person who will be subject to the order with an oral or written notice of the officer’s intention to exercise the power; and
(b) allow a reasonable opportunity in the circumstances for the person to make oral representations.
Contents of notice of intent
(3) The notice of intent to exercise a power under paragraph (1)(a) must include
(a) a statement of the purpose of the notice;
(b) a reference to the statutory authority under which the power is to be exercised; and
(c) a statement that the party notified may make oral representations to the enforcement officer within the period stated in the notice.
Regulations
37.11 The Minister may make regulations
(a) prescribing the form of reporting to enforcement officers under subparagraph 37.03(3)(f)(ii) and specifying the information required to be contained in or to accompany the report; and
(b) of either particular or general application, respecting representations made to enforcement officers under paragraph 37.05(1)(b) or 37.1(2)(b).
Review
37.12 Sections 257 to 271 of the Canadian Environmental Protection Act, 1999 apply, with any modifications that the circumstances require, to a review requested of any order.
10. The Act is amended by adding the following after section 44:
Liability for Costs
Liability for costs
44.1 If a thing is seized under this Act, the person who owned the thing at the time it was seized, the person who had charge or control of the thing immediately before it was seized and the person who possessed it immediately before it was seized are jointly and severally, or solidarily, liable for all the costs of seizure, detention, maintenance and forfeiture, including any destruction or disposal costs, incurred by Her Majesty in right of Canada in relation to the thing in excess of any proceeds of its disposition, if any.
11. The Act is amended by adding the following after section 46:
Immunity
46.1 Inspectors are not personally liable for anything they do or omit to do in good faith under this Act.
12. Sections 49 to 52 of the Act are replaced by the following:
Knowingly providing false or misleading information, etc.
49. (1) No person in Canada, and no Canadian or permit holder in the Antarctic, shall, with respect to any matter related to this Act, knowingly
(a) provide any person with false or misleading information, results or samples; or
(b) file a document that contains false or misleading information.
Negligently providing false or misleading information, etc.
(2) No person in Canada, and no Canadian or permit holder in the Antarctic, shall, with respect to any matter related to this Act, negligently
(a) provide any person with false or misleading information, results or samples; or
(b) file a document that contains false or misleading information.
Offence — persons
50. (1) Every person commits an offence who contravenes
(a) section 11, subsection 12(1) or 13(1), section 14, 16, 17 or 20, subsection 37(4) or 37.06(1), section 48 or subsection 49(1);
(b) any provision of the regulations designated by regulations made under paragraph 26(1)(j.1); or
(c) any order or direction made under this Act, including one made by a court.
Penalty — individuals
(2) Every individual who commits an offence under subsection (1) is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both, and
(ii) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000 or to imprisonment for a term of not more than five years, or to both; or
(b) on summary conviction,
(i) for a first offence, to a fine of not less than $5,000 and not more than $300,000 or to imprisonment for a term of not more than six months, or to both, and
(ii) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000 or to imprisonment for a term of not more than one year, or to both.
Penalty — other persons
(3) Every person, other than an individual or a corporation referred to in subsection (4), that commits an offence under subsection (1) is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and
(ii) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and
(ii) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000.
Penalty — small revenue corporations
(4) Every corporation that commits an offence under subsection (1) and that the court determines under section 50.2 to be a small revenue corporation is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and
(ii) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and
(ii) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.
Offence — persons
50.1 (1) Every person commits an offence who contravenes
(a) any provision of this Act or the regulations, other than a provision whose contravention is an offence under subsection 50(1); or
(b) any obligation arising from this Act, whose contravention is not an offence under subsection 50(1).
Penalty — individuals
(2) Every individual who commits an offence under subsection (1) is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not more than $100,000, and
(ii) for a second or subsequent offence, to a fine of not more than $200,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not more than $25,000, and
(ii) for a second or subsequent offence, to a fine of not more than $50,000.
Penalty — other persons
(3) Every person, other than an individual or a corporation referred to in subsection (4), that commits an offence under subsection (1) is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not more than $500,000, and
(ii) for a second or subsequent offence, to a fine of not more than $1,000,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not more than $250,000, and
(ii) for a second or subsequent offence, to a fine of not more than $500,000.
Penalty — small revenue corporations
(4) Every corporation that commits an offence under subsection (1) and that the court determines under section 50.2 to be a small revenue corporation is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not more than $250,000, and
(ii) for a second or subsequent offence, to a fine of not more than $500,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not more than $50,000, and
(ii) for a second or subsequent offence, to a fine of not more than $100,000.
Determination of small revenue corporation status
50.2 For the purpose of sections 50 and 50.1, a court may determine a corporation to be a small revenue corporation if the court is satisfied that the corporation’s gross revenues for the 12 months immediately before the day on which the subject matter of the proceedings arose — or, if it arose on more than one day, for the 12 months immediately before the first day on which the subject matter of the proceedings arose — were not more than $5,000,000.
Offence — vessels
50.3 (1) Every Canadian vessel or other vessel commits an offence that contravenes
(a) subsection 9(1), section 11, subsection 13(1), any of sections 14 to 16, any of subsections 18(1) to (3) or section 20;
(b) any provision of the regulations designated by regulations made under paragraph 26(1)(j.1); or
(c) any order or direction made under this Act, including one made by a court.
Penalty — vessels of 7 500 tonnes deadweight or over
(2) Every Canadian vessel or other vessel of 7 500 tonnes deadweight or over that commits an offence under subsection (1) is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and
(ii) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and
(ii) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000.
Penalty — other vessels
(3) Every Canadian vessel or other vessel of less than 7 500 tonnes deadweight that commits an offence under subsection (1) is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and
(ii) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and
(ii) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.
Offences — vessels
50.4 (1) Every Canadian vessel or other vessel commits an offence that contravenes any provision of this Act or the regulations, other than a provision whose contravention is an offence under subsection 50.3(1).
Penalty — vessels of 7 500 tonnes deadweight or over
(2) Every Canadian vessel or other vessel of 7 500 tonnes deadweight or over that commits an offence under subsection (1) is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not more than $500,000, and
(ii) for a second or subsequent offence, to a fine of not more than $1,000,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not more than $250,000, and
(ii) for a second or subsequent offence, to a fine of not more than $500,000.
Penalty — other vessels
(3) Every Canadian vessel or other vessel of less than 7 500 tonnes deadweight that commits an offence under subsection (1) is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not more than $250,000, and
(ii) for a second or subsequent offence, to a fine of not more than $500,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not more than $50,000, and
(ii) for a second or subsequent offence, to a fine of not more than $100,000.
Deeming — second and subsequent offence
50.5 (1) For the purposes of subsections 50(2) to (4), 50.1(2) to (4), 50.3(2) and (3) and 50.4(2) and (3), a conviction for a particular offence under this Act is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the offender has been previously convicted — under any Act of Parliament, or any Act of the legislature of a province, that relates to environmental or wildlife conservation or protection — of a substantially similar offence.
Application
(2) Subsection (1) applies only to previous convictions on indictment and to previous convictions on summary conviction, and to previous convictions under any similar procedure under any Act of the legislature of a province.
Relief from minimum fine
50.6 The court may impose a fine that is less than the minimum amount provided for in section 50 or 50.3, as the case may be, if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in any of those sections.
Additional fine
50.7 If a person or a Canadian vessel or other vessel is convicted of an offence under this Act and the court is satisfied that, as a result of the commission of the offence, the person — or, if the offender is a Canadian vessel or other vessel, the owner or operator of the vessel — acquired any property, benefit or advantage, the court shall order the offender to pay an additional fine in an amount equal to the court’s estimation of the value of that property, benefit or advantage. The additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.
Notice to shareholders
50.8 If a corporation that has shareholders is convicted of an offence under this Act, the court shall make an order directing the corporation to notify its shareholders, in the manner and within the time directed by the court, of the facts relating to the commission of the offence and of the details of the punishment imposed.
Fundamental purpose of sentencing
50.9 The fundamental purpose of sentencing for offences under this Act is to contribute to respect for the law protecting the Antarctic environment and dependent and associated ecosystems in light of the global significance of the Antarctic and the Treaty through the imposition of just sanctions that have as their objectives
(a) to deter the offender and any other person from committing offences under this Act;
(b) to denounce unlawful conduct that damages or creates a risk of damage to the environment; and
(c) to reinforce the “polluter pays” principle by ensuring that offenders are held responsible for effective clean-up and environmental restoration.
Sentencing principles
50.91 (1) In addition to the principles and factors that the court is otherwise required to consider, including those set out in sections 718.1 to 718.21 of the Criminal Code, the court shall consider the following principles when sentencing a person who is convicted of an offence under this Act:
(a) the amount of the fine should be increased to account for every aggravating factor associated with the offence, including the aggravating factors set out in subsection (2); and
(b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.
Aggravating factors
(2) The aggravating factors are the following:
(a) the offence caused damage or risk of damage to the Antarctic environment or any dependent and associated ecosystem;
(b) the damage caused by the offence is extensive, persistent or irreparable;
(c) the offender committed the offence intentionally or recklessly;
(d) the offender failed to take reasonable steps to prevent the commission of the offence despite having the financial means to do so;
(e) by committing the offence or failing to take action to prevent its commission, the offender increased revenue or decreased costs or intended to increase revenue or decrease costs;
(f) the offender committed the offence despite having been warned by an enforcement officer or an inspector of the circumstances that subsequently became the subject of the offence;
(g) the offender has a history of non-compliance with federal or provincial legislation that relates to environmental or wildlife conservation or protection; and
(h) after the commission of the offence, the offender
(i) attempted to conceal its commission,
(ii) failed to take prompt action to prevent, mitigate or remediate its effects, or
(iii) failed to take prompt action to reduce the risk of committing similar offences in the future.
Absence of aggravating factor
(3) The absence of an aggravating factor set out in subsection (2) is not a mitigating factor.
Meaning of “damage”
(4) For the purposes of paragraphs (2)(a) and (b), “damage” includes loss of use value and non-use value.
Reasons
(5) If the court is satisfied of the existence of one or more of the aggravating factors set out in subsection (2) but decides not to increase the amount of the fine because of that factor, the court shall give reasons for that decision.
Proceedings against vessels
50.92 (1) The provisions of this Act and the Criminal Code relating to indictable or summary conviction offences that apply to persons apply also to Canadian vessels and other vessels, with any modifications that the circumstances require.
Direction binds vessel
(2) For the purpose of prosecuting a Canadian vessel or any other vessel for contravening a direction made under subsection 30(8), section 37.01 or subsection 46(3), any direction made under any of those provisions that is given to the master or a crew member of the vessel binds the vessel as though it had been given to the vessel.
Service
(3) If a Canadian vessel or other vessel is charged with having committed an offence under this Act, the summons may be served by leaving it with the authorized representative, master or any officer of the vessel or by posting the summons on some conspicuous part of the vessel.
Appearance at trial
(4) If a Canadian vessel or other vessel is charged with having committed an offence under this Act, the vessel may appear by counsel or representative. Despite the Criminal Code, if the vessel does not so appear, a court may, on proof of service of the summons, proceed to hold the trial.
Liability of directors, officers, etc., of corporations
51. (1) If a corporation commits an offence under this Act, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the penalty provided for by this Act for an individual in respect of the offence committed by the corporation, whether or not the corporation has been prosecuted or convicted.
Liability of directors and officers of corporate owners of vessels
(2) If a Canadian vessel or other vessel commits an offence under this Act, every director or officer of a corporation that is an owner or an operator of the vessel who directed or influenced the corporation’s policies or activities in respect of conduct that is the subject matter of the offence is a party to and guilty of the offence and is liable on conviction to the penalty provided for by this Act for an individual who commits an offence under subsection 50(1), whether or not the vessel has been prosecuted or convicted.
Duties of directors and officers of corporations
(3) Every director and officer of a corporation, including every director and officer of a corporation that is the owner or operator of a Canadian vessel or other vessel who is in a position to direct or influence the corporation’s policies or activities relating to conduct prohibited by this Act, shall take all reasonable care to ensure that the corporation or the vessel, as the case may be, complies with
(a) this Act and the regulations; and
(b) any orders and directions of, and prohibitions and requirements imposed by, any court, the Minister, enforcement officers, inspectors and analysts.
Liability of owners, operators, masters and chief engineers of vessels
52. (1) If a Canadian vessel or other vessel commits an offence under this Act and the owner, operator, master or chief engineer of the vessel directed, authorized, assented to, acquiesced in or participated in the commission of the offence, the owner, operator, master or chief engineer, as the case may be, is a party to and guilty of the offence and is liable on conviction to the penalty provided for by this Act for an individual who commits an offence under subsection 50(1), whether or not the vessel has been prosecuted or convicted.
Duties of owners, operators, masters and chief engineers of vessels
(2) The owner, operator, master and the chief engineer of a Canadian vessel or other vessel shall take all reasonable care to ensure that the vessel complies with
(a) this Act and the regulations; and
(b) any orders and directions of, and prohibitions and requirements imposed by, any court, the Minister, enforcement officers, inspectors and analysts.
13. The Act is amended by adding the following after section 53:
Offences involving more than one animal, plant, etc.
53.1 If an offence involves more than one animal or plant, or more than one native bird or native plant as defined in subsection 12(2), the fine to be imposed in respect of that offence may, despite sections 50, 50.1, 50.3 and 50.4, be the total of the fines that would have been imposed if each of the animals, plants, native birds or native plants had been the subject of a separate information.
14. Section 57 of the Act is replaced by the following:
Limitation period
57. No proceedings by way of summary conviction in respect of an offence under this Act may be instituted more than five years after the day on which the subject matter of the proceedings arose, unless the prosecutor and the defendant agree that they may be instituted after the five years.
15. Sections 60 and 61 of the Act are replaced by the following:
Proof of offence
60. (1) In any prosecution of an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee, agent or mandatary of the accused, whether or not the employee, agent or mandatary is identified or prosecuted for the offence.
Proof of offence
(2) In any prosecution of the master of a Canadian vessel or any other vessel or the pilot in command of a Canadian aircraft for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by a crew member or other person on board the vessel or aircraft, whether or not the crew member or other person is identified or prosecuted for the offence.
16. Section 63 of the Act is repealed.
17. (1) Paragraph 66(1)(c) of the French version of the Act is replaced by the following:
c) mener des études de suivi des effets sur l’environnement, de la façon que le ministre indique, ou verser, selon les modalités prescrites par le tribunal, une somme d’argent destinée à permettre ces études;
(2) Subsection 66(1) of the Act is amended by adding the following after paragraph (c):
(c.1) directing the offender to implement an environmental management system that meets a recognized Canadian or international standard specified by the court;
(c.2) directing the offender to pay Her Majesty in right of Canada an amount of money that the court considers appropriate for the purpose of promoting the conservation or protection of the Antarctic environment or dependent and associated ecosystems;
(3) Paragraphs 66(1)(e) and (f) of the Act are replaced by the following:
(e) directing the offender to publish, in the manner specified by the court, the facts relating to the commission of the offence and the details of the punishment imposed, including any orders made under this subsection;
(f) directing the offender to notify, at the offender’s own cost and in the manner directed by the court, any person aggrieved or affected by the offender’s conduct of the facts relating to the commission of the offence and of the details of the punishment imposed, including any orders made under this subsection;
(4) Paragraph 66(1)(i) of the Act is replaced by the following:
(i) directing the offender to compensate any person, monetarily or otherwise, in whole or in part, for the cost of any remedial or preventive action taken, caused to be taken or to be taken as a result of the act or omission that constituted the offence, including the costs of assessing appropriate remedial or preventive action;
(5) Paragraph 66(1)(k) of the Act is repealed.
(5.1) Paragraph 66(1)(m) of the Act is replaced by the following:
(m) directing the offender to pay, in the manner prescribed by the court, an amount to an educational institution including for schol- arships for students enrolled in studies related to the environment;
(6) Paragraph 66(1)(n) of the Act is replaced by the following:
(n) requiring the offender to comply with any other conditions that the court considers appropriate in the circumstances for securing the offender’s good conduct and for deterring the offender and any other person from committing offences under this Act;
(o) requiring the offender to surrender to the Minister any permit issued to the person; and
(p) prohibiting the offender from applying for any new permit during any period that the court considers appropriate.
(7) Subsections 66(2) and (3) of the Act are replaced by the following:
Publication
(2) If an offender fails to comply with an order made under paragraph (1)(e), the Minister may, in the manner that the court directed the offender to do so, publish the facts relating to the commission of the offence and the details of the punishment imposed and recover the costs of publication from the offender.
Debt due to Her Majesty
(3) If the court makes an order under paragraph (1)(c.2) or (i) directing a person to pay an amount to Her Majesty in right of Canada, or if the Minister incurs publication costs under subsection (2), the amount or the costs, as the case may be, constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.
Enforcement
(4) If the court makes an order under paragraph (1)(i) directing an offender to pay an amount to a person, other than to Her Majesty in right of Canada, and the amount is not paid without delay, the person may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.
Cancellation or suspension of permits
(5) If the court makes an order under paragraph (1)(o), any permit to which the order relates is cancelled unless the court makes an order suspending it for any period that the court considers appropriate.
Coming into force and duration of order
(6) An order made under subsection (1) comes into force on the day on which it is made or on any other day that the court may determine and shall not continue in force for more than three years after that day unless the court provides otherwise in the order.
18. The Act is amended by adding the following after section 66:
Compensation for loss of property
66.1 (1) If an offender has been convicted of an offence under this Act, the court may, at the time sentence is imposed and on the application of the person aggrieved, order the offender to pay to that person an amount by way of satisfaction or compensation for loss of or damage to property suffered by that person as a result of the commission of the offence.
Enforcement
(2) If the amount ordered to be paid under subsection (1) is not paid without delay, the aggrieved person may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.
19. The Act is amended by adding the following after section 68:
Application of fines
68.1 (1) All fines received by the Receiver General in respect of the commission of an offence under this Act, other than fines collected under the Contraventions Act, are to be credited to the Environmental Damages Fund, an account in the accounts of Canada, and used for purposes related to protecting, conserving or restoring the environment or for administering that Fund.
Recommendations of court
(2) The court imposing the fine may recommend to the Minister that all or a portion of the fine credited to the Environmental Damages Fund be paid to a person or an organization specified by the court for a purpose referred to in subsection (1).
Publication of information about contraventions
68.2 (1) For the purpose of encouraging compliance with this Act and the regulations, the Minister shall maintain, in a registry accessible to the public, information about all convictions of corporations for offences under this Act.
Retention
(2) Information in the registry is to be maintained for a minimum of five years.
Contraventions Act
68.3 If an offence under this Act is designated as a contravention under the Contraventions Act, subsection 8(5) of that Act does not apply in respect of the fine that may be established for that contravention.
Review
68.4 (1) The Minister shall, 10 years after the day on which this section comes into force and every 10 years after that, undertake a review of sections 50 to 68.3.
Report to Parliament
(2) The Minister shall, no later than one year after the day on which the review is undertaken, cause a report on the review to be tabled in each House of Parliament.
2002, c. 18
CANADA NATIONAL MARINE CONSERVATION AREAS ACT
20. (1) Paragraph 16(1)(a) of the French version of the Canada National Marine Conservation Areas Act is replaced by the following:
a) la protection des écosystèmes et de leurs composantes;
(2) Subsection 16(1) of the Act is amended by striking out “and” at the end of paragraph (l), by adding “and” at the end of paragraph (m) and by adding the following after paragraph (m):
(n) designating provisions of the regulations for the purpose of subsection 24(1).
21. Sections 20 and 21 of the Act are replaced by the following:
Contraventions Act
19.1 (1) The Minister may designate persons or classes of persons employed in the federal public administration or by a provincial, municipal or local authority or by an aboriginal government for the purpose of the enforcement of this Act or the regulations with respect to offences that have been designated as contraventions under the Contraventions Act.
Limitations regarding designations
(2) The Minister may specify that a designation is in respect of one or more marine conservation areas or in respect of all or specified offences under this Act that have been designated as contraventions under the Contraventions Act.
Certificate of designation and oath
20. (1) Every marine conservation area warden, enforcement officer and person designated under section 19.1 shall be provided with a certificate of designation in a form approved by the Minister and shall take and subscribe an oath prescribed by the Minister.
Limitations must be specified
(2) The certificate must specify the limitations, if any, to which the designation is subject.
Right of passage
20.1 In the discharge of their duties, marine conservation area wardens and enforcement officers and any persons accompanying them may enter on and pass through or over private property without being liable for doing so and without any person having the right to object to that use of the property.
Immunity
20.2 Marine conservation area wardens and enforcement officers are not personally liable for anything they do or omit to do in good faith under this Act.
Arrest without warrant
21. A marine conservation area warden or enforcement officer may, in accordance with the Criminal Code, arrest without warrant any person
(a) whom the warden or officer finds committing an offence under this Act; or
(b) who the warden or officer believes, on reasonable grounds, has committed or is about to commit an offence under this Act.
22. Subsections 23(2) and (3) of the French version of the Act are replaced by the following:
Confiscation de plein droit
(2) Dans le cas où leur propriétaire — ou la personne qui a droit à leur possession — ne peut être identifié dans les trente jours suivant la saisie, les objets, ou le produit de leur disposition, sont confisqués au profit de Sa Majesté du chef du Canada, si le garde ou l’agent saisissant est un fonctionnaire de l’administration publique fédérale, ou au profit de Sa Majesté du chef d’une province, si l’agent saisissant est un employé d’une autorité provinciale, municipale ou locale ou d’un gouvernement autochtone.
Biens périssables
(3) Le garde ou l’agent peut disposer, notamment par destruction, des objets saisis périssables; le produit de leur disposition est soit remis à leur propriétaire ou à la personne qui a droit à leur possession, soit, lorsque des poursuites fondées sur la présente loi ont été intentées dans les quatre-vingt-dix jours suivant la saisie, retenu par le garde ou l’agent jusqu’au règlement de l’affaire.
23. The Act is amended by adding the following after section 23:
Liability for costs
23.1 If a thing is seized under this Act, the person who owned the thing at the time that it was seized, the person who had charge or control of the thing immediately before it was seized and the person who possessed it immediately before it was seized are jointly and severally, or solidarily, liable for all the costs of seizure, detention, maintenance and forfeiture, including any destruction or disposal costs, incurred by Her Majesty in right of Canada in relation to the thing in excess of any proceeds of its disposition, if any.
24. (1) Subsection 24(1) of the Act is replaced by the following:
Offence
24. (1) Every person who contravenes any provision of this Act or any provision of the regulations designated by regulations made under paragraph 16(1)(n) is guilty of an offence and liable
(a) on conviction on indictment,
(i) in the case of an individual,
(A) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000,
(ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),
(A) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000, and
(iii) in the case of a corporation that the court has determined under section 24.1 to be a small revenue corporation,
(A) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or
(b) on summary conviction,
(i) in the case of an individual,
(A) for a first offence, to a fine of not less than $5,000 and not more than $300,000, and
(B) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000,
(ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),
(A) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000, and
(iii) in the case of a corporation that the court has determined under section 24.1 to be a small revenue corporation,
(A) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.
Contravention of other provisions of regulations or of conditions of permits, etc.
(1.1) Every person who contravenes any provision of the regulations, other than a provision designated by regulations made under paragraph 16(1)(n), or any condition of a permit or other authorizing instrument issued under this Act is guilty of an offence and liable
(a) on conviction on indictment,
(i) in the case of an individual,
(A) for a first offence, to a fine of not more than $100,000, and
(B) for a second or subsequent offence, to a fine of not more than $200,000,
(ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),
(A) for a first offence, to a fine of not more than $500,000, and
(B) for a second or subsequent offence, to a fine of not more than $1,000,000, and
(iii) in the case of a corporation that the court has determined under section 24.1 to be a small revenue corporation,
(A) for a first offence, to a fine of not more than $250,000, and
(B) for a second or subsequent offence, to a fine of not more than $500,000; or
(b) on summary conviction,
(i) in the case of an individual,
(A) for a first offence, to a fine of not more than $25,000, and
(B) for a second or subsequent offence, to a fine of not more than $50,000,
(ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),
(A) for a first offence, to a fine of not more than $250,000, and
(B) for a second or subsequent offence, to a fine of not more than $500,000, and
(iii) in the case of a corporation that the court has determined under section 24.1 to be a small revenue corporation,
(A) for a first offence, to a fine of not more than $50,000, and
(B) for a second or subsequent offence, to a fine of not more than $100,000.
(2) Subsection 24(2) of the French version of the Act is replaced by the following:
Infraction continue
(2) Il est compté une infraction distincte à la présente loi pour chacun des jours au cours desquels se commet ou se continue l’infraction.
(3) Section 24 of the Act is amended by adding the following after subsection (2):
Offences involving more than one animal, plant or object
(2.1) If an offence involves more than one animal, plant or object, the fine to be imposed in respect of that offence may, despite subsections (1) and (1.1), be the total of the fines that would have been imposed if each of the animals, plants or objects had been the subject of a separate information.
Deeming — second and subsequent offence
(2.2) For the purposes of this section, a conviction for a particular offence under this Act is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the offender has been previously convicted — under any Act of Parliament, or any Act of the legislature of a province, that relates to environmental or wildlife protection or conservation, or the protection of cultural, historical or archaeological resources — of a substantially similar offence.
Application
(2.3) Subsection (2.2) applies only to previous convictions on indictment and to previous convictions on summary conviction, and to previous convictions under any similar procedure under any Act of the legislature of a province.
25. The Act is amended by adding the following after section 24:
Determination of small revenue corporation status
24.1 For the purpose of section 24, a court may determine a corporation to be a small revenue corporation if the court is satisfied that the corporation’s gross revenues for the 12 months immediately before the day on which the subject matter of the proceedings arose — or, if it arose on more than one day, for the 12 months immediately before the first day on which the subject matter of the proceedings arose — were not more than $5,000,000.
Relief from minimum fine
24.2 The court may impose a fine that is less than the minimum amount provided for in subsection 24(1) if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in that subsection.
Additional fine
24.3 If a person is convicted of an offence under this Act and the court is satisfied that, as a result of the commission of the offence, the person acquired any property, benefit or advantage, the court shall order the person to pay an additional fine in an amount equal to the court’s estimation of the value of that property, benefit or advantage. The additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.
Notice to shareholders
24.4 If a corporation that has shareholders is convicted of an offence under this Act, the court shall make an order directing the corporation to notify its shareholders, in the manner and within the time directed by the court, of the facts relating to the commission of the offence and of the details of the punishment imposed.
Liability of directors, officers, etc., of corporations
24.5 (1) If a corporation commits an offence under this Act, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the penalty provided for by this Act for an individual in respect of the offence committed by the corporation, whether or not the corporation has been prosecuted or convicted.
Duties of directors and officers of corporations
(2) Every director and officer of a corporation shall take all reasonable care to ensure that the corporation complies with
(a) this Act and the regulations;
(b) orders made by a court, the Minister or the superintendent under this Act; and
(c) directions of the superintendent, a marine conservation area warden or an enforcement officer made under this Act.
Fundamental purpose of sentencing
24.6 The fundamental purpose of sentencing for offences under this Act is to contribute to respect for the law establishing and protecting marine conservation areas through the imposition of just sanctions that have as their objectives
(a) to deter the offender and any other person from committing offences under this Act;
(b) to denounce unlawful conduct that damages or creates a risk of damage to marine conservation areas; and
(c) to restore marine conservation area resources.
Sentencing principles
24.7 (1) In addition to the principles and factors that the court is otherwise required to consider, including those set out in sections 718.1 to 718.21 of the Criminal Code, the court shall consider the following principles when sentencing a person who is convicted of an offence under this Act:
(a) the amount of the fine should be increased to account for every aggravating factor associated with the offence, including the aggravating factors set out in subsection (2); and
(b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.
Aggravating factors
(2) The aggravating factors are the following:
(a) the offence caused damage or risk of damage to any marine conservation area resources;
(b) the offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable marine conservation area resources;
(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 marine conservation area warden or an enforcement officer of the circumstances that subsequently became the subject of the offence;
(h) the offender has a history of non-compliance with federal or provincial legislation that relates to environmental or wildlife protection or conservation or the protection of cultural, historical or archaeological resources; and
(i) after the commission of the offence, the offender
(i) attempted to conceal its commission,
(ii) failed to take prompt action to prevent, mitigate or remediate its effects, or
(iii) failed to take prompt action to reduce the risk of committing similar offences in the future.
Absence of aggravating factor
(3) The absence of an aggravating factor set out in subsection (2) is not a mitigating factor.
Meaning of “damage”
(4) For the purposes of paragraphs (2)(a) to (c), “damage” includes loss of use value and non-use value.
Reasons
(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.
26. The Act is amended by adding the following after section 26:
Application of fines
26.1 (1) All fines received by the Receiver General in respect of the commission of an offence under this Act, other than fines collected under the Contraventions Act, are to be credited to the Environmental Damages Fund, an account in the accounts of Canada, and used for purposes related to protecting, conserving or restoring marine conservation areas or for administering that Fund.
Recommendations of court
(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).
27. (1) Subsection 27(1) of the Act is replaced by the following:
Orders of court
27. (1) If a person is convicted of an offence under this Act, in addition to any punishment imposed, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing one or more of the following prohibitions, directions or requirements:
(a) prohibiting the person from doing any act or engaging in any activity that may, in the court’s opinion, result in the continuation or repetition of the offence;
(b) directing the person to take any action that the court considers appropriate to remedy or avoid any damage to any marine conservation area resources that resulted or may result from the commission of the offence;
(c) directing the person to post a bond, provide surety or pay into court an amount of money that the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction or requirement mentioned in this section;
(d) directing the person to prepare and implement a pollution prevention plan or an environmental emergency plan;
(e) directing the person to carry out, in the manner established by the Minister, monitoring of the environmental effects of any activity or undertaking on the resources of a marine conservation area or directing the person to pay, in the manner specified by the court, an amount for that purpose;
(f) directing the person to implement an environmental management system approved by the Minister;
(g) directing the person to have an environmental audit conducted by a person of a class and at the times specified by the Minister and directing the person to remedy any deficiencies revealed during the audit;
(h) directing the person to pay to Her Majesty in right of Canada an amount of money that the court considers appropriate for the purpose of promoting the protection, conservation or restoration of marine conservation areas;
(i) directing the person to publish, in the manner specified by the court, the facts relating to the commission of the offence and the details of the punishment imposed, including any orders made under this subsection;
(j) directing the person to notify, at the person’s own cost and in the manner specified by the court, any person aggrieved or affected by the person’s conduct of the facts relating to the commission of the offence and of the details of the punishment imposed, including any orders made under this subsection;
(k) directing the person to submit to the Minister, when requested to do so by the Minister at any time within three years after the date of conviction, any information with respect to the person’s activities that the court considers appropriate in the circumstances;
(l) directing the person to compensate any person, monetarily or otherwise, in whole or in part, for the cost of any remedial or preventive action taken, caused to be taken or to be taken as a result of the act or omission that constituted the offence, including any costs of assessing appropriate remedial or preventive action;
(m) directing the person to perform community service, subject to any reasonable conditions that may be imposed in the order;
(n) directing the person to pay, in a manner specified by the court, an amount to enable research to be conducted into the protection, conservation or restoration of marine conservation areas;
(o) requiring the person to surrender to the Minister any permit or other authorizing instrument issued under this Act to the person;
(p) prohibiting the person from applying for any new permit or other authorizing instrument under this Act during any period that the court considers appropriate;
(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 marine conservation area where the offence was committed;
(r) directing the person to pay, in the manner prescribed by the court, an amount to an educational institution including for scholarships for students enrolled in studies related to the environment; and
(s) requiring the person to comply with any other conditions that the court considers appropriate.
Publication
(1.1) If a person fails to comply with an order made under paragraph (1)(i), the Minister may, in the manner that the court directed the person to do so, publish the facts relating to the commission of the offence and the details of the punishment imposed and recover the costs of publication from the person.
Debt due to Her Majesty
(1.2) If the court makes an order under paragraph (1)(h) or (l) directing a person to pay an amount to Her Majesty in right of Canada, or if the Minister incurs publication costs under subsection (1.1), the amount or the costs, as the case may be, constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.
Enforcement
(1.3) If the court makes an order under paragraph (1)(l) directing a person to pay an amount to another person, other than to Her Majesty in right of Canada, and the amount is not paid without delay, that other person may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the person who was directed to pay the amount in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.
Cancellation or suspension of permit, etc.
(1.4) If the court makes an order under paragraph (1)(o), any permit or other authorizing instrument to which the order relates is cancelled unless the court makes an order suspending it for any period that the court considers appropriate.
(2) Section 27 of the Act is amended by adding the following after subsection (3):
Coming into force and duration of order
(4) An order made under subsection (1) comes into force on the day on which it is made or on any other day that the court may determine and shall not continue in force for more than three years after that day unless the court provides otherwise in the order.
28. Section 28 of the Act is replaced by the following:
Compensation for loss of property
28. (1) If a person has been convicted of an offence under this Act, the court may, at the time sentence is imposed and on the application of the person aggrieved, order the offender to pay to the aggrieved person an amount by way of satisfaction or compensation for loss of or damage to property suffered by that person as a result of the commission of the offence.
Enforcement
(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.
Compensation for cost of remedial or preventive action
28.01 (1) A court shall not, under paragraph 27(1)(l), order a person to compensate another person for the cost of any remedial or preventive action referred to in that paragraph if the other person is entitled to make a claim for compensation for that cost under the Marine Liability Act or the Arctic Waters Pollution Prevention Act.
Compensation for loss or damage — property
(2) A court shall not, under subsection 28(1), order a person to pay to another person an amount by way of satisfaction or compensation for loss of or damage to property if the other person is entitled to make a claim for compensation for that loss or damage under the Marine Liability Act or the Arctic Waters Pollution Prevention Act.
Limitation period
28.1 No proceedings by way of summary conviction in respect of an offence under this Act may be instituted more than five years after the day on which the subject matter of the proceedings arose, unless the prosecutor and the defendant agree that they may be instituted after the five years.
Contraventions Act
28.2 If an offence under this Act is designated as a contravention under the Contraventions Act, subsection 8(5) of that Act does not apply in respect of the fine that may be established for that contravention.
Publication of information about contraventions
28.3 (1) For the purpose of encouraging compliance with this Act and the regulations, the Minister shall maintain, in a registry accessible to the public, information about all convictions of corporations for offences under this Act.
Retention
(2) Information in the registry is to be maintained for a minimum of five years.
Review
28.4 (1) The Minister shall, 10 years after the day on which this section comes into force and every 10 years after that, undertake a review of sections 24 to 28.3.
Report to Parliament
(2) The Minister shall, no later than one year after the day on which the review is undertaken, cause a report on the review to be tabled in each House of Parliament.
2000, c. 32
CANADA NATIONAL PARKS ACT
29. Paragraph 16(1)(y) of the Canada National Parks Act is replaced by the following:
(y) designating provisions of the regulations for the purpose of subsection 24(1); and
30. Sections 20 and 21 of the Act are replaced by the following:
Contraventions Act
19.1 (1) The Minister may designate persons or classes of persons employed in the federal public administration or by a provincial, municipal or local authority or by an aboriginal government for the purpose of the enforcement of this Act or the regulations with respect to offences that have been designated as contraventions under the Contraventions Act.
Limitations regarding designations
(2) The Minister may specify that a designation is in respect of one or more parks or in respect of all or specified offences under this Act that have been designated as contraventions under the Contraventions Act.
Certificate of designation and oath
20. (1) Every park warden, enforcement officer and person designated under section 19.1 shall be provided with a certificate of designation in a form approved by the Minister and shall take and subscribe an oath prescribed by the Minister.
Limitations must be specified
(2) The certificate must specify the limitations, if any, to which the designation is subject.
Right of passage
20.1 In the discharge of their duties, park wardens and enforcement officers and any persons accompanying them may enter on and pass through or over private property without being liable for doing so and without any person having the right to object to that use of the property.
Immunity
20.2 Park wardens and enforcement officers are not personally liable for anything they do or omit to do in good faith under this Act.
Arrest without warrant
21. A park warden or enforcement officer may, in accordance with the Criminal Code, arrest without warrant any person
(a) whom the warden or officer finds committing an offence under this Act; or
(b) who the warden or officer believes, on reasonable grounds, has committed or is about to commit an offence under this Act.
2002, c. 18, s. 31.4; 2003, c. 22, par. 224(q)(E)
31. Subsections 23(2) and (3) of the French version of the Act are replaced by the following:
Confiscation de plein droit
(2) Dans le cas où leur propriétaire — ou la personne qui a droit à leur possession — ne peut être identifié dans les trente jours suivant la saisie, les objets, ou le produit de leur disposition, sont confisqués au profit de Sa Majesté du chef du Canada, si le garde ou l’agent saisissant est un fonctionnaire de l’administration publique fédérale, ou au profit de Sa Majesté du chef d’une province, si l’agent saisissant est un employé d’une autorité provinciale, municipale ou locale ou d’un gouvernement autochtone.
Biens périssables
(3) Le garde ou l’agent peut disposer, notamment par destruction, des objets saisis périssables; le produit de leur disposition est soit remis à leur propriétaire ou à la personne qui a droit à leur possession, soit, lorsque des poursuites fondées sur la présente loi ont été intentées dans les quatre-vingt-dix jours suivant la saisie, retenu par le garde ou l’agent jusqu’au règlement de l’affaire.
32. The Act is amended by adding the following after section 23:
Liability for costs
23.1 If a thing is seized under this Act, the person who owned the thing at the time that it was seized, the person who had charge or control of the thing immediately before it was seized and the person who possessed it immediately before it was seized are jointly and severally, or solidarily, liable for all the costs of seizure, detention, maintenance and forfeiture, including any destruction or disposal costs, incurred by Her Majesty in right of Canada in relation to the thing in excess of any proceeds of its disposition, if any.
33. Section 24 of the Act is replaced by the following:
Offence
24. (1) Every person who contravenes section 13, subsection 32(1) or a provision of the regulations designated by regulations made under paragraph 16(1)(y) is guilty of an offence and liable
(a) on conviction on indictment,
(i) in the case of an individual,
(A) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000,
(ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),
(A) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000, and
(iii) in the case of a corporation that the court has determined under section 27.1 to be a small revenue corporation,
(A) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or
(b) on summary conviction,
(i) in the case of an individual,
(A) for a first offence, to a fine of not less than $5,000 and not more than $300,000, and
(B) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000,
(ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),
(A) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000, and
(iii) in the case of a corporation that the court has determined under section 27.1 to be a small revenue corporation,
(A) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.
Contravention of other provisions of regulations or of conditions of permits, etc.
(2) Every person who contravenes any provision of the regulations, other than a provision designated by regulations made under paragraph 16(1)(y), or any condition of a permit, licence or other authorizing instrument issued under the regulations, 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 27.1 to be a small revenue corporation,
(A) for a first offence, to a fine of not more than $250,000, and
(B) for a second or subsequent offence, to a fine of not more than $500,000; or
(b) on summary conviction,
(i) in the case of an individual,
(A) for a first offence, to a fine of not more than $25,000, and
(B) for a second or subsequent offence, to a fine of not more than $50,000,
(ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii),
(A) for a first offence, to a fine of not more than $250,000, and
(B) for a second or subsequent offence, to a fine of not more than $500,000, and
(iii) in the case of a corporation that the court has determined under section 27.1 to be a small revenue corporation,
(A) for a first offence, to a fine of not more than $50,000, and
(B) for a second or subsequent offence, to a fine of not more than $100,000.
34. Subsections 25(1) and (2) of the Act are replaced by the following:
Trafficking in wild animals, etc.
25. (1) Except as permitted by the regulations, no person shall traffic in any wild animal, whether living or dead, at any developmental stage, in any part of or any derivative of, or in any egg or embryo of, a wild animal — or in any plant or part of a plant or in any other naturally occurring object or product of natural phenomena — taken in or from a park.
Offence
(2) Every person who contravenes subsection (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 $7,500 and not more than $500,000 or to imprisonment for a term of not more than one year, or to both, and
(B) for a second or subsequent 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 one year, 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 $400,000 and not more than $5,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $800,000 and not more than $10,000,000, and
(iii) in the case of a corporation that the court has determined under section 27.1 to be a small revenue corporation,
(A) for a first offence, to a fine of not less than $25,000 and not more than $3,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $6,000,000; or
(b) on summary conviction,
(i) in the case of an individual,
(A) for a first offence, to a fine of not less than $4,000 and not more than $225,000 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 $8,000 and not more than $450,000 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 $50,000 and not more than $3,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $100,000 and not more than $6,000,000, and
(iii) in the case of a corporation that the court has determined under section 27.1 to be a small revenue corporation,
(A) for a first offence, to a fine of not less than $15,000 and not more than $1,250,000, and
(B) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,500,000.
35. (1) Subsections 26(1) to (4) of the Act are replaced by the following:
Hunting, trafficking or possessing
26. (1) Except as permitted by the regulations, no person shall
(a) hunt, in a park, any wild animal of a species named in Part 1 of Schedule 3;
(b) traffic in or possess, in a park, any wild animal of a species named in Part 1 of Schedule 3, whether living or dead, at any developmental stage, or any egg or embryo, or any part or derivative, of any such animal; or
(c) traffic in or possess any wild animal of a species named in Part 1 of Schedule 3, whether living or dead, at any developmental stage, taken from a park, or any egg or embryo, or any part or derivative, of any such animal that was taken from a park.
Offence
(2) Every person who contravenes subsection (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 27.1 to be a small revenue corporation,
(A) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or
(b) on summary conviction,
(i) in the case of an individual,
(A) for a first offence, to a fine of not less than $5,000 and not more than $300,000 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 27.1 to be a small revenue corporation,
(A) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and
(B) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.
Hunting, trafficking or possessing
(3) Except as permitted by the regulations, no person shall
(a) hunt, in a park, any wild animal of a species named in Part 2 of Schedule 3;
(b) traffic in or possess, in a park, any wild animal of a species named in Part 2 of Schedule 3, whether living or dead, at any developmental stage, or any egg or embryo, or any part or derivative, of any such animal; or
(c) traffic in or possess any wild animal of a species named in Part 2 of Schedule 3, whether living or dead, at any developmental stage, taken from a park, or any egg or embryo, or any part or derivative, of any such animal that was taken from a park.
Offence
(4) Every person who contravenes subsection (3) 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 $10,000 and not more than $750,000 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 $20,000 and not more than $1,500,000 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 $450,000 and not more than $5,500,000, and
(B) for a second or subsequent offence, to a fine of not less than $900,000 and not more than $11,000,000, and
(iii) in the case of a corporation that the court has determined under section 27.1 to be a small revenue corporation,
(A) for a first offence, to a fine of not less than $50,000 and not more than $3,500,000, and
(B) for a second or subsequent offence, to a fine of not less than $100,000 and not more than $7,000,000; or
(b) on summary conviction,
(i) in the case of an individual,
(A) for a first offence, to a fine of not less than $4,500 and not more than $250,000 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 $9,000 and not more than $500,000 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 $75,000 and not more than $3,500,000, and
(B) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $7,000,000, and
(iii) in the case of a corporation that the court has determined under section 27.1 to be a small revenue corporation,
(A) for a first offence, to a fine of not less than $20,000 and not more than $1,500,000, and
(B) for a second or subsequent offence, to a fine of not less than $40,000 and not more than $3,000,000.
(2) The definition “wildlife” in subsection 26(5) of the Act is repealed.
(3) Subsection 26(6) of the Act is replaced by the following:
Amendments to Schedule 3
(6) The Governor in Council may, by regulation, amend Part 1 or 2 of Schedule 3 by adding the name of any species of wild animal or by deleting the name of any species of wild animal.
36. (1) Subsection 27(1) of the Act is replaced by the following:
Offences involving more than one animal, plant or object
27. (1) If an offence involves more than one animal, plant or object, the fine to be imposed in respect of that offence may, despite sections 24 to 26, 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.
(2) Subsection 27(3) of the Act is replaced by the following:
Deeming — second and subsequent offence
(3) For the purposes of sections 24 to 26, a conviction for a particular offence under this Act is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the offender has been previously convicted — under any Act of Parliament, or any Act of the legislature of a province, that relates to environmental or wildlife protection or conservation, or the protection of cultural, historical or archaeological resources — of a substantially similar offence.
Application
(4) Subsection (3) 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.
37. The Act is amended by adding the following after section 27:
Determination of small revenue corporation status
27.1 For the purpose of sections 24 to 26, 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
27.2 The court may impose a fine that is less than the minimum amount provided for in section 24, 25 or 26 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
27.3 If a person is convicted of an offence under this Act and the court is satisfied that, as a result of the commission of the offence, the person acquired any property, benefit or advantage, the court shall order the person to pay an additional fine in an amount equal to the court’s estimation of the value of that property, benefit or advantage. The additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.
Notice to shareholders
27.4 If a corporation that has shareholders is convicted of an offence under this Act, the court shall make an order directing the corporation to notify its shareholders, in the manner and within the time directed by the court, of the facts relating to the commission of the offence and of the details of the punishment imposed.
Liability of directors, officers, etc., of corporations
27.5 (1) If a corporation commits an offence under this Act, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the penalty provided for by this Act for an individual in respect of the offence committed by the corporation, whether or not the corporation has been prosecuted or convicted.
Duties of directors and officers of corporations
(2) Every director and officer of a corporation shall take all reasonable care to ensure that the corporation complies with
(a) this Act and the regulations;
(b) orders made by a court or the superintendent under this Act; and
(c) directions of the superintendent, a park warden or an enforcement officer made under this Act.
Fundamental purpose of sentencing
27.6 The fundamental purpose of sentencing for offences under this Act is to contribute to respect for the law establishing and protecting parks 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 parks; and
(c) to restore park resources.
Sentencing principles
27.7 (1) In addition to the principles and factors that the court is otherwise required to consider, including those set out in sections 718.1 to 718.21 of the Criminal Code, the court shall consider the following principles when sentencing a person who is convicted of an offence under this Act:
(a) the amount of the fine should be increased to account for every aggravating factor associated with the offence, including the aggravating factors set out in subsection (2); and
(b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.
Aggravating factors
(2) The aggravating factors are the following:
(a) the offence caused damage or risk of damage to 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.
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, it shall give reasons for that decision.
38. The Act is amended by adding the following after section 29:
Application of fines
29.1 (1) All fines received by the Receiver General in respect of the commission of an offence under this Act, other than fines collected under the Contraventions Act, are to be credited to the Environmental Damages Fund, an account in the accounts of Canada, and used for purposes related to protecting, conserving or restoring parks 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 organization specified by the court for a purpose referred to in subsection (1).
39. (1) Paragraph 30(1)(a) of the French version of the Act is replaced by the following:
a) s’abstenir de tout acte ou toute activité risquant d’entraîner, de l’avis du tribunal, la continuation de l’infraction ou la récidive;
(2) Paragraphs 30(1)(b) and (c) of the Act are replaced by the following:
(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 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;
(3) Paragraph 30(1)(d) of the French version of the Act is replaced by the following:
d) en garantie de l’exécution des obligations imposées au titre du présent article, fournir le cautionnement ou déposer auprès du tribunal la somme que celui-ci estime indiqué;
(4) Subsection 30(1) of the Act is amended by striking out “or” at the end of paragraph (d) and by replacing paragraph (e) with the following:
(e) directing the person to prepare and implement a pollution prevention plan or an environmental emergency plan;
(f) 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;
(g) directing the person to implement an environmental management system approved by the Minister;
(h) 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;
(i) 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 parks;
(j) 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;
(k) 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;
(l) 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;
(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 parks;
(o) requiring the person to surrender to the Minister any permit, licence or other authorizing instrument issued under the regulations to the person;
(p) prohibiting the person from applying for any new permit, licence or other authorizing instrument under the regulations 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;
(r) directing the person to pay, in the manner prescribed by the court, an amount to an educational institution including for scholarships for students enrolled in studies related to the environment; and
(s) requiring the person to comply with any other conditions that the court considers appropriate.
(5) Section 30 of the Act is amended by adding the following after subsection (3):
Publication
(4) If a person fails to comply with an order made under paragraph (1)(j), 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
(5) If the court makes an order under paragraph (1)(c) or (i) directing a person to pay an amount to Her Majesty in right of Canada, or if the Minister incurs publication costs under subsection (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.
Enforcement
(6) If the court makes an order under paragraph (1)(c) directing a person to pay an amount to another person, other than to Her Majesty in right of Canada, and the amount is not paid without delay, that other person may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the person who was directed to pay the amount in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.
Cancellation or suspension of permits, etc.
(7) If the court makes an order under paragraph (1)(o), any permit, licence 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.
Coming into force and duration of order
(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.
40. Section 31 of the Act is replaced by the following:
Compensation for loss of property
31. (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.
Compensation for cost of remedial or preventive action
31.01 (1) A court shall not, under paragraph 30(1)(c), order a person to compensate another person for the cost of any remedial or preventive action referred to in that paragraph if the other person is entitled to make a claim for compensation for that cost under the Marine Liability Act or the Arctic Waters Pollution Prevention Act.
Compensation for loss or damage — property
(2) A court shall not, under subsection 31(1), order a person to pay to another person an amount by way of satisfaction or compensation for loss of or damage to property if the other person is entitled to make a claim for compensation for that loss or damage under the Marine Liability Act or the Arctic Waters Pollution Prevention Act.
Limitation period
31.1 No proceedings by way of summary conviction in respect of an offence under this Act may be instituted more than five years after the day on which the subject matter of the proceedings arose, unless the prosecutor and the defendant agree that they may be instituted after the five years.
Contraventions Act
31.2 If an offence under this Act is designated as a contravention under the Contraventions Act, subsection 8(5) of that Act does not apply in respect of the fine that may be established for that contravention.
Publication of information about contraventions
31.3 (1) For the purpose of encouraging compliance with this Act and the regulations, the Minister shall maintain, in a registry accessible to the public, information about all convictions of corporations for offences under this Act.
Retention
(2) Information in the registry is to be maintained for a minimum of five years.
Review
31.4 (1) The Minister shall, 10 years after the day on which this section comes into force and every 10 years after that, undertake a review of sections 24 to 31.3.
Report to Parliament
(2) The Minister shall, no later than one year after the day on which the review is undertaken, cause a report on the review to be tabled in each House of Parliament.
R.S., c. W-9; 1994, c. 23, s. 2(F)
CANADA WILDLIFE ACT
41. Subsection 2(1) of the Canada Wildlife Act 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.
1994, c. 23, s.13
42. (1) Subsection 11(1) of the Act is replaced by the following:
Designation of wildlife officers and analysts
11. (1) The Minister may designate any person or class of persons to act as wildlife officers or analysts for the purposes of this Act and the regulations.
1994, c. 23, s.13
(2) Subsection 11(3) of the Act is replaced by the following:
Certificate of designation
(3) Every wildlife officer and analyst must be provided with a certificate of his or her designation as a wildlife officer, or as an analyst, as the case may be, in a form approved by the Minister and, on entering any place under this Act, the officer or analyst shall, if so requested, show the certificate to the occupant or person in charge of the place.
1994, c. 23, s.13
(3) Subsection 11(6) of the Act is replaced by the following:
Obstruction
(6) When a wildlife officer or an analyst is carrying out duties or functions under this Act or the regulations, no person shall
(a) knowingly make any false or misleading statement either orally or in writing to the wildlife officer or analyst; or
(b) otherwise wilfully obstruct the wildlife officer or analyst.
1994, c. 23, s.13
43. Subsection 11.1(2) of the Act is replaced by the following:
Analysts
(1.1) An analyst may, for the purposes of this Act, accompany a wildlife officer who is carrying out an inspection of a place under this section, and the analyst may, when accompanying the wildlife officer, enter the place and exercise any of the powers described in paragraphs (1)(a) and (b).
Conveyance
(2) For the purposes of carrying out the inspection, the wildlife 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.
44. The Act is amended by adding the following after section 11.1:
Right of passage
11.11 While carrying out duties or functions under this Act, wildlife 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.
Assistance
11.12 The owner or person in charge of a place being inspected under section 11.1, and every person found in the place, shall
(a) give the wildlife officer or analyst all reasonable assistance to enable the wildlife officer or analyst to carry out their duties or functions under this Act; and
(b) provide the wildlife officer or analyst with any information with respect to the administration of this Act that he or she may reasonably require.
Immunity
11.13 Wildlife officers, analysts and persons acting under a wildlife officer’s direction and control are not personally liable for anything they do or omit to do in good faith under this Act.
45. Section 11.4 of the French version of the Act is replaced by the following:
Disposition par le ministre
11.4 Il est disposé des objets confisqués ou abandonnés au titre de la présente loi conformément aux instructions du ministre.
2001, c. 4, s. 128(E); 2004, c. 250, s. 118(F)
46. Section 11.5 of the Act is replaced by the following:
Liability for costs
11.5 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.
Meaning of “order”
11.6 For the purpose of sections 11.7 to 11.97 “order” means a compliance order issued under section 11.7.
Compliance order
11.7 (1) Whenever, during the course of an inspection or a search, a wildlife 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 wildlife 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 and consistent with wildlife conservation and public safety 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 wildlife 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 wildlife officer considers necessary to facilitate compliance with the order or to protect and conserve wildlife and wildlife habitat, including, but not limited to,
(i) maintaining records on any relevant matter,
(ii) reporting periodically to the wildlife officer, and
(iii) submitting to the wildlife officer any information, proposal or plan specified by the wildlife 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 11.8, 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
11.8 (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 11.7.
Meaning of “exigent circumstances”
(2) For greater certainty, “exigent circumstances” includes circumstances in which the delay necessary to issue a written order that meets the requirements of subsection 11.7(3) would result in danger to human life or to the environment, including wildlife.
Notice of intent
11.9 (1) Except in exigent circumstances, a wildlife 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 wildlife officer within the period stated in the notice.
Compliance with the order
11.91 (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 wildlife officer in an order given orally under subsection 11.8(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 wildlife officer
11.92 (1) If a person to whom an order is directed fails to take any measures specified in the order, a wildlife officer may take the measures or cause them to be taken.
Access to property
(2) A wildlife officer or other person authorized or required by a wildlife 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 11.7(1), who provides assistance or advice in taking the measures specified in an order or who takes any measures authorized or required by a wildlife 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
11.93 (1) Her Majesty in right of Canada may recover the costs and expenses of and incidental to any measures taken under subsection 11.92(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
11.94 (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
11.95 (1) At any time before a notice requesting a review of an order is received by the Chief Review Officer, the wildlife 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 wildlife 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 wildlife officer within the period stated in the notice.
Regulations
11.96 The Minister may make regulations
(a) prescribing the form of reporting to wildlife officers under subparagraph 11.7(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 wildlife officers under subsection 11.9(1) or 11.95(2).
Review
11.97 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.
2002, c. 29, s. 136(1)
47. (1) Paragraph 12(a) of the Act is replaced by the following:
(a) respecting the prohibition against entry, generally or for any specified period or purpose, by persons on lands under the administration of the Minister, or on public lands referred to in an order made under subsection 4(3), or on any part of those lands;
(2) Section 12 of the Act is amended by striking out “and” at the end of paragraph (i), by adding “and” at the end of paragraph (j) and by adding the following after paragraph (j):
(k) designating provisions of the regulations for the purposes of paragraph 13(1)(b).
1994, c. 23, s. 15
48. Section 13 of the Act is replaced by the following:
Offence
13. (1) Every person commits an offence who contravenes
(a) subsection 11(6) or 11.91(1);
(b) any provision of the regulations designated by regulations made under paragraph 12(k); 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 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.
Relief from minimum fine
(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.
Offence
13.01 (1) Every person commits an offence who contravenes
(a) any provision of the Act or the regulations, other than a provision the contravention of which is an offence under subsection 13(1); or
(b) an order 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.
Deeming — second and subsequent offence
13.03 (1) For the purposes of subsections 13(2) to (4) and 13.01(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.
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.
Additional fine
13.04 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.
Notice to shareholders
13.05 If a corporation that has shareholders is convicted of an offence under this Act, the court shall make an order directing the corporation to notify its shareholders, in the manner and within the time directed by the court, of the facts relating to the commission of the offence and of the details of the punishment imposed.
Liability of directors and officers, etc., of corporation
13.06 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’ duties
13.07 Every director and officer of a corporation shall take all reasonable care to ensure that the corporation complies with the provisions of this Act and the regulations and obligations and prohibitions arising from this Act or the regulations.
Fundamental purpose of sentencing
13.08 The fundamental purpose of sentencing for offences under this Act is to contribute, in light of the significant and many threats to wildlife and the importance of wildlife to the well-being of Canadians, to respect for the law protecting wildlife 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 wildlife; and
(c) to recover wildlife and restore wildlife habitat.
Sentencing principles
13.09 (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 wildlife or wildlife habitat;
(b) the offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable wildlife or wildlife habitat;
(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 wildlife 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.
Documents admissible in evidence
13.091 (1) A document made, given or issued under this Act and appearing to be signed by an analyst is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the document without proof of the signature or official character of the person appearing to have signed the document.
Attendance of analyst
(2) The party against whom the document is produced may, with leave of the court, require the attendance of the analyst who signed it.
Notice
(3) No document referred to in subsection (1) may be received in evidence unless the party intending to produce it has given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the document.
Proof of offence
13.1 In any prosecution of an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee, agent or mandatary of the accused, whether or not the employee, agent or mandatary is identified or prosecuted for the offence.
Continuing offence
13.11 A person who 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 animal, plant or other organism
13.12 If an offence under this Act involves more than one animal, plant or other organism, the fine to be imposed in respect of that offence may, despite sections 13 and 13.01, be the total of the fines that would have been imposed if each of the animals, plants or other organisms had been the subject of a separate information.
Application of fines
13.13 (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).
1994, c. 23. s. 15
49. (1) Paragraphs 16(c) and (d) of the Act are replaced by the following:
(b.1) 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 purpose of environmental effects monitoring;
(b.2) directing the person to implement an environmental management system that meets a recognized Canadian or international standard specified by the court;
(b.3) 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 proper management of wildlife or the conservation or protection of wildlife;
(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;
(c.1) 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;
(d) 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;
(d.1) directing the person to pay, in a manner specified by the court, an amount to enable research to be conducted into the protection or conservation of the wildlife or the wildlife habitat in respect of which the offence was committed;
(d.2) directing the person to pay, in the manner prescribed by the court, an amount to an educational institution including for scholarships for students enrolled in studies related to the environment;
(d.3) directing the person to pay, in the manner prescribed by the court, an amount to environmental or other groups to assist in their work in or for the community where the offence was committed;
1994, c. 23. s. 15
(2) Paragraph 16(g) of the Act is replaced by the following:
(g) 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 persons from committing offences under this Act;
(3) Section 16 of the Act is amended by adding the following after paragraph 16(h):
(i) requiring the person to surrender to the Minister any permit or other authorization issued under this Act to the person; and
(j) prohibiting the person from applying for any new permit or other authorization under this Act during any period that the court considers appropriate.
50. The Act is amended by adding the following after section 16:
Coming into force and duration of order
16.1 An order made under section 16 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
16.2 If a person fails to comply with an order made under paragraph 16(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 person.
Debt due to Her Majesty
16.3 If the court makes an order under paragraph 16(b.3) or (d) directing a person to pay an amount to Her Majesty in right of Canada, or if the Minister incurs publication costs under section 16.2, 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
16.4 If the court makes an order under paragraph 16(d) directing a person to pay an amount to another person, other than to Her Majesty in right of Canada, and the amount is not paid without delay, that other person may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the person who was directed to pay the amount in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.
Cancellation or suspension of permits, etc.
16.5 If the court makes an order under paragraph 16(i), any permit or other authorization to which the order relates is cancelled unless the court makes an order suspending it for any period that the court considers appropriate.
1994, c. 23, s. 15
51. 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.
Publication of information about contraventions
18.1 (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.
Retention
(2) Information in the registry is to be maintained for a minimum of five years.
Minister may refuse or suspend permit, etc.
18.2 The Minister may refuse to issue a permit or other authorization under this Act, or may amend, suspend or cancel such a permit or other authorization, if the applicant or the holder has been convicted of an offence under this Act.
Contraventions Act
18.3 If an offence under this Act is designated as a contravention under the Contraventions Act, subsection 8(5) of that Act does not apply in respect of the fine that may be established for that contravention.
Review
18.4 (1) The Minister shall, 10 years after the day on which this section comes into force and every 10 years after that, undertake a review of sections 13 to 18.3.
Report to Parliament
(2) The Minister shall, no later than one year after the day on which the review is undertaken, cause a report on the review to be tabled in each House of Parliament.
1999, c. 33
CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
52. Subsection 159(3) of the Canadian Environmental Protection Act, 1999 is replaced by the following:
Detention of vehicles or engines
(3) The Minister may not detain any vehicle, engine, equipment or component for more than 90 days after completion of the tests conducted under subsection (2) unless, before that time, proceedings have been instituted in respect of an offence related to the vehicle, engine, equipment or component, in which case it may be detained until the proceedings are concluded.
53. The Act is amended by adding the following after section 217:
Immunity
217.1 Enforcement officers and analysts are not personally liable for anything they do or omit to do in good faith while carrying out duties or exercising powers under this Act, including any failure to exercise a discretionary authority.
54. (1) Subsection 218(7) of the Act is replaced by the following:
Stopping and detaining conveyances
(7) For the purposes of this Act and the regulations, an enforcement officer may, at any reasonable time, direct that any conveyance be stopped — or be moved by the route and in the manner that the officer may specify, to a place specified by the officer where an inspection can be carried out — and the officer may, for a reasonable time, detain any conveyance, platform or other structure.
Moving and detaining shipping containers
(7.1) For the purposes of this Act and the regulations, an enforcement officer may, at any reasonable time, direct that any shipping container be moved to a place specified by the officer and the officer may, for a reasonable time, detain the container.
(2) Subsection 218(11) of the Act is replaced by the following:
Disposition of samples
(11) An enforcement officer may dispose a sample taken under paragraph (10)(d) in any manner that the enforcement officer considers appropriate.
55. Subsection 220(2) of the Act is replaced by the following:
Warrant for seizure of ships, etc.
(2) If on ex parte application a justice is satisfied by information on oath that there are reasonable grounds to believe that an offence under this Act has been committed by an owner of any ship, aircraft, platform or other structure, the justice may issue a warrant authorizing an enforcement officer, or authorizing any other person named in the warrant, to seize the ship, aircraft, platform or structure anywhere in Canada and, in the case of a ship, platform or structure, within Canadian waters.
56. Subsection 222(2) of the Act is replaced by the following:
Seized ship, etc., to be returned unless proceedings instituted
(2) Anything referred to in subsection (1) that has been seized under section 220, or any security given to the Minister under subsection (1), shall be returned or paid to the person from whom the thing was seized within 30 days after the seizure unless, before the expiry of those 30 days, proceedings are instituted in respect of an offence under this Act alleged to have been committed by the owner of the thing.
57. Subsection 225(1) of the Act is replaced by the following:
Detention of ships
225. (1) If an enforcement officer has reasonable grounds to believe that the owner or master of a ship has committed an offence under this Act and that a ship was used in connection with the commission of the offence, the enforcement officer may make a detention order in respect of the ship.
58. Section 226 of the Act is replaced by the following:
Right of passage
226. While carrying out powers, duties or functions under this Act, enforcement officers and analysts, and any persons accompanying them, may enter on and pass through or over private property without being liable for doing so and without any person having the right to object to that use of the property.
59. The Act is amended by adding the following after section 228:
Liability for Costs
Liability for costs
228.1 If a thing is seized under this Act, the person who owned the thing at the time it was seized, the person who had charge or control of the thing immediately before it was seized and the person who possessed it immediately before it was seized are jointly and severally, or solidarily, liable for all the costs of seizure, detention, maintenance and forfeiture, including any destruction or disposal costs, incurred by Her Majesty in right of Canada in relation to the thing in excess of any proceeds of its disposition, if any.
60. Section 231 of the Act is replaced by the following:
Court may order forfeiture
231. If the owner of any ship, aircraft, platform or other structure has been convicted of an offence under this Act, the convicting court may, if the ship, aircraft, platform or structure was seized under section 220 or subsection 223(1), in addition to any other penalty imposed, order that the ship, aircraft, platform or structure, or any security given under subsection 222(1), be forfeited, and on the making of such an order the ship, aircraft, platform, structure or security is forfeited to Her Majesty in right of Canada.
61. (1) Subsection 235(1) of the Act is replaced by the following:
Order
235. (1) Whenever, during the course of an inspection or a search, an enforcement officer has reasonable grounds to believe that any provision of this Act or the regulations has been contravened in the circumstances described in subsection (2) by a person who is continuing the commission of the offence, or that any of those provisions are likely to be contravened in the circumstances described in that subsection, the enforcement officer may issue an environmental protection compliance order directing any person described in subsection (3) to take any of the measures referred to in subsection (4) and, if applicable, subsection (5) that are reasonable in the circumstances and consistent with the protection of the environment and public safety, in order to cease or refrain from committing the alleged contravention.
(2) Subsection 235(3) of the Act is amended by striking out “or” at the end of paragraph (a), by adding “or’’ at the end of paragraph (b) and by adding the following after paragraph (b):
(c) any person who is likely to cause or contribute to the alleged contravention.
(3) The portion of subsection 235(4) of the English version of the Act before paragraph (a) is replaced by the following:
Specific measures
(4) For the purposes of subsection (1), an order in relation to an alleged contravention of any provision of this Act or the regulations may specify that the person to whom the order is directed take one or more of the following measures:
(4) Paragraphs 235(4)(c) and (d) of the French version of the Act are replaced by the following:
c) cesser l’exercice d’une activité ou l’exploitation d’une partie notamment d’un ouvrage ou d’une entreprise jusqu’à ce que l’agent de l’autorité soit convaincu qu’ils sont conformes à la présente loi et aux règlements;
d) déplacer un moyen de transport vers un autre lieu, y compris faire entrer un navire au port ou faire atterrir un aéronef;
(5) The portion of paragraph 235(4)(f) of the Act before subparagraph (i) is replaced by the following:
(f) take any other measure that the enforcement officer considers necessary to facilitate compliance with the order — or to restore the components of the environment damaged by the alleged contravention or to protect the components of the environment put at risk by the alleged contravention — including
(6) Paragraph 235(6)(b) of the Act is replaced by the following:
(b) the provision of this Act or the regulations that is alleged to have been or that is likely to be contravened;
(7) Paragraphs 235(6)(d) and (e) of the Act are replaced by the following:
(d) the measures to be taken;
(e) the time or the day when each measure is to begin or the period during which it is to be carried out;
(8) Subsection 235(7) of the Act is replaced by the following:
Duration of order
(7) An order may not be in force for a period of more than 180 days.
Failing to file report
(8) For the purposes of subsection (1), a person who commits an offence by failing to file a report required by this Act or the regulations is deemed to be continuing the commission of the offence each day that the report is not filed.
Statutory Instruments Act
(9) An order is not a statutory instrument for the purposes of the Statutory Instruments Act.
62. Subsection 236(1) of the English version of the Act is replaced by the following:
Exigent circumstances
236. (1) In the case of exigent circumstances, an order may be given orally on the condition that it is followed, within seven days, by a written order issued in accordance with section 235.
63. Paragraph 237(1)(b) of the English version of the Act is replaced by the following:
(b) allow a reasonable opportunity in the circumstances for every such person to make oral representations.
64. Subsection 238(2) of the Act is replaced by the following:
No bar to proceedings
(2) The issuance of or compliance with an order in respect of a person’s alleged contravention of this Act or the regulations is not a bar to any proceedings against the person under this or any other Act in relation to the alleged contravention.
65. (1) Subsection 239(1) of the Act is replaced by the following:
Intervention by enforcement officer
239. (1) If any person to whom an order is directed fails to take any measures specified in the order, an enforcement officer may take the measures or cause them to be taken.
(2) Subsection 239(3) of the Act is replaced by the following:
Personal liability
(3) Any person, other than a person described in subsection 235(3), who provides assistance or advice in taking the measures specified in an order or who takes any measures authorized or required by an enforcement officer under subsection (1) is not personally liable either civilly or criminally in respect of any act or omission in the course of providing assist- ance or advice or taking any measures under that subsection unless it is established that the person acted in bad faith.
66. (1) Subsection 240(3) of the English version of the Act is replaced by the following:
Liability
(3) The persons referred to in subsection (1) are jointly and severally, or solidarily, liable for the costs and expenses referred to in that subsection.
(2) Subsections 240(5) and (6) of the French version of the Act are replaced by the following:
Poursuites
(5) Sa Majesté du chef du Canada peut recouvrer les créances, ainsi que les dépens afférents, par action en recouvrement devant tout tribunal compétent.
Recours contre des tiers et indemnité
(6) Le présent article ne limite pas les recours contre les tiers ni le droit à une indemnité.
67. (1) The portion of subsection 241(1) of the Act before paragraph (a) is replaced by the following:
Variation or cancellation of order
241. (1) At any time before a notice requesting a review of an order is received by the Chief Review Officer, the enforcement officer may, after giving reasonable notice,
(2) The portion of subsection 241(3) of the French version of the Act before paragraph (a) is replaced by the following:
Teneur de l’avis d’intention
(3) L’avis d’intention quant à l’exercice des pouvoirs prévus à l’alinéa (1)a) doit préciser les trois éléments suivants :
68. Section 247 of the Act is replaced by the following:
Knowledge
247. A person is not eligible to be appointed as a review officer unless the person is knowledgeable about the conservation and protection of the Canadian environment, environmental and human health, administrative law as it relates to environmental regulation or traditional aboriginal ecological knowledge.
69. Section 257 of the Act is replaced by the following:
Review
257. On receipt of a request made under subsection 256(1), the Chief Review Officer shall conduct a review of the order, including a hearing, or cause a review and hearing of the order to be conducted by a review officer, or by a panel of three review officers, assigned by the Chief Review Officer. The Chief Review Officer may be a member of that panel.
70. Section 266 of the Act is replaced by the following:
Decision
266. The review officer or the panel, as the case may be, shall, within 15 days after the completion of the review of an order, render a decision, with written reasons, and provide all persons to whom the order was directed and the Minister with a copy of the decision and the reasons.
71. Section 267 of the Act is renumbered as subsection 267(1) and is amended by adding the following:
Rules for other Acts
(2) The Chief Review Officer may make rules under subsection (1) with respect to the review of orders made under any Act of Parliament that provides for the review of those orders in accordance with sections 257 to 271 of this Act.
2005, c. 23, s. 37
72. Sections 272 to 275 of the Act are replaced by the following:
Offence — persons
272. (1) Every person commits an offence who
(a) contravenes subsection 16(3) or (4), any of subsections 81(1), (2), (3), (4), (10), (11) and (14), 84(2) and 96(3) and (4), section 101, any of subsections 106(1), (2), (3), (4), (10) and (11) and 109(2), section 117 or 123, any of subsections 124(1), (2) and (3), 125(1), (2), (3), (4) and (5), 126(1) and (2) and 139(1), section 142 or 144, subsection 150(3) or (4), section 152, subsection 153(1), section 154, subsection 155(5), section 171 or 181 or subsection 185(1), 186(2), 189(1), 202(3) or (4) or 213(3) or (4), paragraph 228(a) or subsection 238(1);
(b) fails to comply with an obligation set out in section 70, 86, 95 or 111, subsection 169(1), 172(1), 179(1), 182(1), 201(1) or 212(1);
(c) contravenes a prohibition imposed under subsection 82(1) or (2), paragraph 84(1)(b), subsection 107(1) or (2), paragraph 109(1)(b) or subsection 186(1) or 225(4);
(d) contravenes a condition of a permission granted under paragraph 84(1)(a) or 109(1)(a);
(e) contravenes an interim order made under subsection 94(1), 173(1), 183(1) or 200.1(1);
(f) fails to comply with a direction given under section 99, 119 or 148;
(g) knowingly contravenes paragraph 228(b);
(h) contravenes any provision of the regulations designated by regulations made under section 286.1 for the purpose of this paragraph;
(i) contravenes an agreement as defined in section 295;
(j) contravenes an order, direction or decision of a court made under this Act;
(k) knowingly, with respect to any matter related to this Act or the regulations, provides any person with any false or misleading information, results or samples; or
(l) knowingly, with respect to any matter related to this Act or the regulations, files a document that contains false or misleading information.
Penalty — individuals
(2) Every individual who commits an offence under subsection (1) is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both, and
(ii) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000 or to imprisonment for a term of not more than three years, or to both; or
(b) on summary conviction,
(i) for a first offence, to a fine of not less than $5,000 and not more than $300,000 or to imprisonment for a term of not more than six months, or to both, and
(ii) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000 or to imprisonment for a term of not more than six months, or to both.
Penalty — other persons
(3) Every person, other than an individual or a corporation referred to in subsection (4), that commits an offence under subsection (1) is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and
(ii) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and
(ii) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000.
Penalty — small revenue corporations
(4) Every corporation that commits an offence under subsection (1) and that the court determines under section 272.3 to be a small revenue corporation is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and
(ii) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and
(ii) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.
Offence — persons
272.1 (1) Every person commits an offence who
(a) contravenes any provision of this Act, other than a provision the contravention of which is an offence under subsection 272(1);
(b) fails to comply with an obligation arising from this Act, a requirement imposed under this Act or a request made under this Act, other than an obligation, a requirement or a request the failure to comply with is an offence under 272(1);
(c) contravenes a prohibition arising from this Act, other than a prohibition the contravention of which is an offence under subsection 272(1);
(d) contravenes a condition of any permission granted under this Act, other than a condition of a permission the contravention of which is an offence under subsection 272(1);
(e) fails to comply with a direction given under this Act, other than a direction the failure to comply with is an offence under 272(1);
(f) contravenes any provision of the regulations, other than a provision the contravention of which is an offence under subsection 272(1) or 272.2(1);
(g) negligently, with respect to any matter related to this Act or the regulations, provides any person with any false or misleading information, results or samples; or
(h) negligently, with respect to any matter related to this Act or the regulations, files a document that contains false or misleading information.
Penalty — individuals
(2) Every individual who commits an offence under subsection (1) is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not more than $100,000, and
(ii) for a second or subsequent offence, to a fine of not more than $200,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not more than $25,000, and
(ii) for a second or subsequent offence, to a fine of not more than $50,000.
Penalty — other persons
(3) Every person, other than an individual or a corporation referred to in subsection (4), that commits an offence under subsection (1) is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not more than $500,000, and
(ii) for a second or subsequent offence, to a fine of not more than $1,000,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not more than $250,000, and
(ii) for a second or subsequent offence, to a fine of not more than $500,000.
Penalty — small revenue corporations
(4) Every corporation that commits an offence under subsection (1) and that the court determines under section 272.3 to be a small revenue corporation is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not more than $250,000, and
(ii) for a second or subsequent offence, to a fine of not more than $500,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not more than $50,000, and
(ii) for a second or subsequent offence, to a fine of not more than $100,000.
Offence — failure to comply with designated regulations
272.2 (1) Every person who fails to comply with a provision of a regulation designated under section 286.1 for the purpose of this subsection commits an offence and is liable
(a) on conviction on indictment,
(i) in the case of an individual, to a fine determined in accordance with the regulations or to imprisonment for a term of not more than three years, or to both, and
(ii) in the case of a person, other than an individual, to a fine determined in accordance with the regulations; or
(b) on summary conviction,
(i) in the case of an individual, to a fine determined in accordance with the regulations or to imprisonment for a term of not more than six months, or to both, and
(ii) in the case of a person, other than an individual, to a fine determined in accordance with the regulations.
Regulations
(2) The Governor in Council may make regulations prescribing the method of calculating the fine in respect of the offence referred to in subsection (1) committed by individuals, other persons and corporations determined under section 272.3 to be small revenue corporations, which method may be based on a monetary range specified in the regulations.
Tradeable units
(3) If a person is convicted of an offence under subsection (1) by reason of having failed to comply with a provision that requires the remission or the cancellation of tradeable units described in regulations made under section 326, the court shall, in addition to any other punishment that may be imposed under subsection (1), make an order requiring the person to remit or cancel tradeable units of the type and number determined in accordance with regulations made under subsection (4) or, if there are no regulations made under that subsection, in accordance with subsection (5). In the case of an order to remit, the court shall specify in the order the name of the person or entity to whom the tradeable units are to be remitted.
Regulations
(4) The Governor in Council may make regulations prescribing the types of tradeable units described in regulations made under section 326 that a person may be required to remit or cancel in an order made under subsection (3) and the manner of determining the number of those tradeable units that the person may be required to remit or cancel.
Absence of regulations
(5) If there are no regulations made under subsection (4), the court shall require the person to remit or cancel tradeable units of a type and in the number that, in the court’s opinion, the person failed to remit or cancel.
Determination of small revenue corporation status
272.3 For the purpose of sections 272, 272.1 and 272.2, a court may determine a corporation to be a small revenue corporation if the court is satisfied that the corporation’s gross revenues for the 12 months immediately before the day on which the subject matter of the proceedings arose — or, if it arose on more than one day, for the 12 months immediately before the first day on which the subject matter of the proceedings arose — were not more than $5,000,000.
Offence — ships
272.4 (1) Every ship commits an offence if it contravenes
(a) section 123, subsection 124(1.1), 125(1), (2.1) or (3.1) or 126(1.1) or (3);
(b) any provision of the regulations designated by regulations made under section 286.1; or
(c) any order or a direction made under this Act, including one made by a court.
Penalty — ships of 7 500 tonnes deadweight or over
(2) Every ship of 7 500 tonnes deadweight or over that commits an offence under subsection (1) is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and
(ii) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and
(ii) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000.
Penalty — other ships
(3) Every other ship that commits an offence under subsection (1) is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and
(ii) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and
(ii) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.
Offences — ships
272.5 (1) Every ship commits an offence if it contravenes
(a) any provision of this Act that expressly applies to ships, other than a provision the contravention of which is an offence under subsection 272.4(1); or
(b) any provision of the regulations other than a provision the contravention of which is an offence under subsection 272.4(1).
Penalty — ship of 7 500 tonnes deadweight or over
(2) Every ship of 7 500 tonnes deadweight or over that commits an offence under subsection (1) is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not more than $500,000, and
(ii) for a second or subsequent offence, to a fine of not more than $1,000,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not more than $250,000, and
(ii) for a second or subsequent offence, to a fine of not more than $500,000.
Penalty — other ships
(3) Every other ship that commits an offence under subsection (1) is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not more than $250,000, and
(ii) for a second or subsequent offence, to a fine of not more than $500,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not more than $50,000, and
(ii) for a second or subsequent offence, to a fine of not more than $100,000.
Relief from minimum fine
273. The court may impose a fine that is less than the minimum amount provided for in subsection 272(2), (3) or (4) or 272.4(2) or (3) if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in any of those subsections.
Deeming — second and subsequent offence
273.1 (1) For the purposes of subsections 272(2) to (4), 272.1(2) to (4), 272.4(2) and (3) and 272.5(2) and (3), a conviction for a particular offence under this Act is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the offender has been previously convicted — under any Act of Parliament, or any Act of the legislature of a province, that relates to environmental or wildlife conservation or protection — of a substantially similar offence.
Application
(2) Subsection (1) applies only to previous convictions on indictment and to previous convictions on summary conviction, and to previous convictions under any similar procedure under any Act of the legislature of a province.
Damage to environment and risk of death or harm to persons
274. (1) Every person is guilty of an offence and liable on conviction on indictment to a fine or to imprisonment for a term of not more than five years, or to both, who, in committing an offence under this Act,
(a) intentionally or recklessly causes a disaster that results in a loss of the use or the non-use value of the environment; or
(b) shows wanton or reckless disregard for the lives or safety of other persons and thereby causes a risk of death or harm to another person.
Criminal negligence
(2) Every person who, in committing an offence under this Act, shows wanton or reckless disregard for the lives or safety of other persons and thereby causes death or bodily harm to another person is subject to prosecution and punishment under section 220 or 221 of the Criminal Code.
Additional fine
274.1 If a person or ship is convicted of an offence and the court is satisfied that, as a result of the commission of the offence, the person — or, if the offender is a ship, the owner or operator of the ship — acquired any property, benefit or advantage, the court shall order the offender to pay an additional fine in an amount equal to the court’s estimation of the value of that property, benefit or advantage. The additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.
Notice to shareholders
274.2 If a corporation that has shareholders is convicted of an offence under this Act, the court shall make an order directing the corporation to notify its shareholders, in the manner and within the time directed by the court, of the facts relating to the commission of the offence and of the details of the punishment imposed.
Limitation period
275. No proceedings by way of summary conviction in respect of an offence under this Act may be instituted more than five years after the day on which the subject matter of the proceedings arose, unless the prosecutor and the defendant agree that they may be instituted after the five years.
2005, c. 23, s. 41
73. Section 280 of the Act is replaced by the following:
Liability of directors, officer, etc., of corporation
280. (1) If a corporation commits an offence under this Act, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence, and is liable on conviction to the penalty provided for by this Act for an individual in respect of the offence committed by the corporation, whether or not the corporation has been prosecuted or convicted.
Liability of masters and chief engineers
(2) If a ship commits an offence under this Act and the master or chief engineer of the ship directed, authorized, assented to, acquiesced in or participated in the commission of the offence, the master or chief engineer, as the case may be, is a party to and guilty of the offence, and is liable on conviction to the penalty provided for by this Act for an individual who commits an offence under subsection 272.1(1), whether or not the ship has been prosecuted or convicted.
2005, c. 23, s. 41
74. Subsection 280.1(3) of the Act is replaced by the following:
Liability of directors and officers — Division 3 of Part 7
(3) If a corporation commits an offence arising out of a contravention of Division 3 of Part 7, a regulation made under that Division or an order or direction of, or prohibition or requirement imposed by, the Minister, an enforcement officer or a review officer in connection with an obligation or prohibition under that Division or a regulation made under that Division, every director and officer of the corporation who directed or influenced the corporation’s policies or activities in respect of conduct that is the subject matter of the offence is a party to and guilty of the offence, and is liable to the penalty provided by this Act for an individual in respect of the offence committed by the corporation, whether or not the corporation has been prosecuted or convicted.
2005, c. 23, s. 41
75. Subsection 280.2(2) of the Act is replaced by the following:
Liability of master and chief engineer
(2) If a ship commits an offence arising out of a contravention of Division 3 of Part 7, a regulation made under that Division or an order or direction of, or prohibition or requirement imposed by, the Minister, an enforcement officer or a review officer in connection with an obligation or prohibition under that Division or a regulation made under that Division, the master and the chief engineer of the ship are a party to and guilty of the offence, and are liable to the penalty provided for by this Act for an individual who commits an offence under subsection 272(1), whether or not the ship has been prosecuted or convicted.
2005, c. 23, s. 41
76. Sections 280.3 to 280.5 of the Act are replaced by the following:
Duties of ship owners
280.3 (1) Every owner of a ship — and, if the owner is a corporation, every director and officer of the corporation who is in a position to direct or influence its policies or activities relating to conduct prohibited by Division 3 of Part 7 — shall take all reasonable care to ensure that the ship complies, and all persons on board the ship comply, with
(a) Division 3 of Part 7 and regulations made under that Division; and
(b) orders and directions of, and prohibitions and requirements imposed by, the Minister, enforcement officers and review officers in connection with obligations or prohibitions under that Division or those regulations.
Liability of ship’s owner — individual
(2) If a ship commits an offence arising out of a contravention of Division 3 of Part 7, a regulation made under that Division or an order or direction of, or prohibition or requirement imposed by, the Minister, an enforcement officer or a review officer in connection with an obligation or prohibition under that Division or a regulation made under that Division and the owner of the ship, other than an owner that is a corporation, directed, authorized, assented to, acquiesced in or participated in the commission of the offence, the owner is a party to and guilty of the offence and is liable to the penalty provided by this Act for an individual who commits an offence under subsection 272(1), whether or not the ship has been prosecuted or convicted.
Liability of directors and officers of corporate ship owners
(3) If a ship commits an offence arising out of a contravention of Division 3 of Part 7, a regulation made under that Division or an order or direction of, or prohibition or requirement imposed by, the Minister, an enforcement officer or a review officer in connection with an obligation or prohibition under that Division or a regulation made under that Division, every director or officer of a corporation that is an owner of the ship who directed or influenced the corporation’s policies or activities in respect of conduct that is the subject matter of the offence is a party to and guilty of the offence, and is liable to penalty provided by this Act for an individual who commits an offence under subsection 272(1), whether or not the ship has been prosecuted or convicted.
For greater certainty
280.4 For greater certainty, section 283 applies to a person who is a party to an offence by reason of subsection 280.1(3), 280.2(2) or 280.3(2) or (3).
Direction binds ship
280.5 For the purpose of prosecuting a ship for contravening a direction made under section 225.1, any direction made under that section that is given to the master or a crew member of the ship binds the ship as though it had been given to the ship.
2005, c. 23, s. 42
77. Subsection 281.1(2) of the Act is replaced by the following:
Service on ship
(2) If a ship is charged with having committed an offence under this Act, the summons may be served by leaving it with the owner, master or any officer of the ship or by posting the summons on some conspicuous part of the ship.
Appearance at trial
(3) If a ship is charged with having committed an offence under this Act, the ship may appear by counsel or representative. Despite the Criminal Code, if the ship does not so appear, a court may, on proof of service of the summons, proceed to hold the trial.
78. Subsection 282(1) of the Act is replaced by the following:
Proof of offence
282. (1) In any prosecution of an offence under this Act, other than an offence under paragraph 272(1)(k) or (l) or an offence of contravening section 228 or an offence under 274, it is sufficient proof of the offence to establish that it was committed by an employee, agent or mandatary of the accused, whether or not the employee, agent or mandatary is identified or prosecuted for the offence.
79. Section 283 of the Act is replaced by the following:
Defence
283. No person shall be found guilty of an offence under this Act, other than an offence of contravening paragraph 228(a) or knowingly contravening paragraph 228(b), an offence under paragraph 272(1)(k) or (l) or an offence under section 274, if the person establishes that the person exercised all due diligence to prevent its commission.
80. The Act is amended by adding the following after section 286:
Regulations
286.1 The Governor in Council may, by regulation, designate provisions of regulations made under this Act for the purposes of paragraph 272(1)(h) and subsection 272.2(1) and paragraph 272.4(1)(b).
81. Section 287 of the Act and the heading before it are replaced by the following:
Sentencing
Fundamental purpose of sentencing
287. The fundamental purpose of sentencing for offences under this Act is to contribute, in light of the significant and many threats to the environment and to human health and to the importance of a healthy environment to the well-being of Canadians, to respect for the law protecting the environment and human health through the imposition of just sanctions that have as their objectives
(a) to deter the offender and any other person from committing offences under this Act;
(b) to denounce unlawful conduct that dam- ages or creates a risk of damage to the environment or harms or creates a risk of harm to human health; and
(c) to reinforce the “polluter pays” principle by ensuring that offenders are held responsible for effective clean-up and environmental restoration.
Sentencing principles
287.1 (1) In addition to the principles and factors that the court is otherwise required to consider, including those set out in sections 718.1 to 718.21 of the Criminal Code, the court shall consider the following principles when sentencing a person who is convicted of an offence under this Act:
(a) the amount of the fine should be increased to account for every aggravating factor associated with the offence, including the aggravating factors set out in subsection (2); and
(b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.
Aggravating factors
(2) The aggravating factors are the following:
(a) the offence caused damage or risk of damage to the environment or environmental quality;
(b) the offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable component of the environment;
(c) the offence caused harm or risk of harm to human health;
(d) the damage or harm caused by the offence is extensive, persistent or irreparable;
(e) the offender committed the offence intentionally or recklessly;
(f) the offender failed to take reasonable steps to prevent the commission of the offence despite having the financial means to do so;
(g) by committing the offence or failing to take action to prevent its commission, the offender increased revenue or decreased costs or intended to increase revenue or decrease costs;
(h) the offender committed the offence despite having been warned by an enforcement officer of the circumstances that subsequently became the subject of the offence;
(i) the offender has a history of non-compliance with federal or provincial legislation that relates to environmental or wildlife conservation or protection; and
(j) after the commission of the offence, the offender
(i) attempted to conceal its commission,
(ii) failed to take prompt action to prevent, mitigate or remediate its effects, or
(iii) failed to take prompt action to reduce the risk of committing similar offences in the future.
Absence of aggravating factor
(3) The absence of an aggravating factor set out in subsection (2) is not a mitigating factor.
Meaning of “damage”
(4) For the purposes of paragraphs (2)(a), (b) and (d), “damage” includes loss of use value and non-use value.
Reasons
(5) If the court is satisfied of the existence of one or more of the aggravating factors set out in subsection (2) but decides not to increase the amount of the fine because of that factor, the court shall give reasons for that decision.
82. Subsection 288(2) of the Act is replaced by the following:
Conditions of order
(2) If an order is made under subsection (1) and the offender contravenes or fails to comply with it, or is convicted of an offence under this Act, the prosecutor may apply to the court to revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time the order was made.
83. Subsection 289(2) of the Act is replaced by the following:
Application by prosecutor
(2) If the passing of sentence has been suspended under subsection (1) and the offender contravenes or fails to comply with an order made under section 291, or is convicted of an offence under this Act, the prosecutor may apply to the court to impose any sentence that could have been imposed if the passing of sentence had not been suspended.
84. Section 290 of the Act is repealed.
85. (1) Paragraph 291(1)(d) of the French version of the Act is replaced by the following:
d) mener des études de suivi des effets sur l’environnement, de la façon que le ministre indique, ou verser, selon les modalités prescrites par le tribunal, une somme d’argent destinée à permettre ces études;
(2) Paragraphs 291(1)(g) and (h) of the Act are replaced by the following:
(f.1) directing the offender to pay to Her Majesty in right of Canada an amount of money that the court considers appropriate for the purpose of promoting the conservation or protection of the environment;
(g) directing the offender to publish, in the manner specified by the court, the facts relating to the commission of the offence and the details of the punishment imposed, including any orders made under this subsection;
(h) directing the offender to notify, at the offender’s own cost and in the manner specified by the court, any person aggrieved or affected by the offender’s conduct of the facts relating to the commission of the offence and of the details of the punishment imposed, including any orders made under this subsection;
(3) Paragraph 291(1)(k) of the Act is replaced by the following:
(k) directing the offender to compensate any person, monetarily or otherwise, in whole or in part, for the cost of any remedial or preventive action taken, caused to be taken or to be taken as a result of the act or omission that constituted the offence, including costs of assessing appropriate remedial or preventive action;
(4) Paragraph 291(1)(m) of the Act is repealed.
(4.1) Paragraph 291(1)(p) of the Act is replaced by the following:
(p) directing the offender to pay, in the manner prescribed by the court, an amount to an educational institution including for scholarships for students enrolled in studies related to the environment;
(5) Paragraph 291(1)(q) of the Act is replaced by the following:
(q) requiring the offender to comply with any other conditions that the court considers appropriate in the circumstances for securing the offender’s good conduct and for deterring the offender and any other person from committing offences under this Act;
(r) requiring the offender to surrender to the Minister any permit or other authorization issued under this Act to the offender; and
(s) prohibiting the offender from applying for any new permit or other authorization under this Act during any period that the court considers appropriate.
(6) Subsections 291(2) to (4) of the Act are replaced by the following:
Publication
(2) If an offender fails to comply with an order made under paragraph (1)(g), the Minister may, in the manner that the court directed the offender to do so, publish the facts relating to the commission of the offence and the details of the punishment imposed and recover the costs of publication from the offender.
Debt due to Her Majesty
(3) If the court makes an order under paragraph (1)(f.1) or (k) directing an offender to pay an amount to Her Majesty in right of Canada, or if the Minister incurs publication costs under subsection (2), the amount or the costs, as the case may be, constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.
Enforcement
(4) If the court makes an order under paragraph (1)(k) directing an offender to pay an amount to a person, other than to Her Majesty in right of Canada, and the amount is not paid without delay, the person may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.
Cancellation or suspension of permits, etc.
(5) If the court makes an order under paragraph (1)(r), any permit or other authorization to which the order relates is cancelled unless the court makes an order suspending it for any period that the court considers appropriate.
Coming into force and duration of order
(6) An order made under subsection (1) comes into force on the day on which it is made or on any other day that the court may determine and shall not continue in force for more than three years after that day unless the court provides otherwise in the order.
85.1 The Act is amended by adding the following after section 292:
Compensation for cost of remedial or preventive action
292.1 (1) A court shall not, under paragraph 291(1)(k), order an offender to compensate a person for the cost of any remedial or preventive action referred to in that paragraph if the person is entitled to make a claim for compensation for that cost under the Marine Liability Act or the Arctic Waters Pollution Prevention Act.
Compensation for loss or damage — property
(2) A court shall not, under subsection 292(1), order an offender to pay to a person an amount by way of satisfaction or compensation for loss of or damage to property if the person is entitled to make a claim for compensation for that loss or damage under the Marine Liability Act or the Arctic Waters Pollution Prevention Act.
86. The Act is amended by adding the following after section 294:
Application of fines
294.1 (1) Subject to regulations made under section 278, all fines received by the Receiver General in respect of the commission of an offence under this Act, other than fines collected under the Contraventions Act, are to be credited to the Environmental Damages Fund, an account in the accounts of Canada, and used for purposes related to protecting, conserving or restoring the environment or for administering that Fund.
Recommendations of court
(2) The court imposing the fine may recommend to the Minister that all or a portion of the fine credited to the Environmental Damages Fund be paid to a person or an organization specified by the court for a purpose referred to in subsection (1).
Publication of information about contraventions
294.2 (1) For the purpose of encouraging compliance with this Act and the regulations, the Minister shall maintain, in a registry accessible to the public, information about all convictions of corporations for offences under this Act.
Retention
(2) Information in the registry is to be maintained for a minimum of five years.
Minister may refuse or suspend permit
294.3 The Minister may refuse to issue a permit or other authorization under this Act, or may cancel such a permit or other authorization, if the applicant or the holder has been convicted of an offence under this Act.
Contraventions Act
294.4 If an offence under this Act is designated as a contravention under the Contraventions Act, subsection 8(5) of that Act does not apply in respect of the fine that may be established for that contravention.
Review
294.5 (1) The Minister shall, 10 years after the day on which this section comes into force and every 10 years after that, undertake a review of sections 272 to 294.4.
Report to Parliament
(2) The Minister shall, no later than one year after the day on which the review is undertaken, cause a report on the review to be tabled in each House of Parliament.
87. Paragraph 296(1)(b) of the Act is replaced by the following:
(b) the offence alleged to have been committed is an offence under this Act, except an offence
(i) in respect of the contravention of subsection 16(4), 81(1), (2), (3) or (4), 82(1) or (2), 84(2) or 96(4), section 99, subsection 106(1), (2), (3) or (4), 107(1) or (2), 109(1) or (2), 119(1), 148(1), 202(4) or 213(4) or section 227 or 228, or any obligation or prohibition arising from any of those provisions,
(ii) for failing to comply with
(A) an order or a direction made under this Act;
(B) an order, direction or decision of a court made under this Act; or
(C) an agreement, or
(iii) under any of paragraphs 272(1)(k) and (l) and subsections 274(1) and (2);
88. Section 297 of the Act is replaced by the following:
Sentencing considerations
297. If an information in respect of an offence of contravening an agreement has been laid and proceedings in respect of the alleged offence for which the agreement was entered into have been recommenced, the court imposing a sentence for either offence shall take into account, in addition to the principles and factors referred to in section 287.1, any sentence that has previously been imposed for the other offence.
R.S., c. I-20
INTERNATIONAL RIVER IMPROVEMENTS ACT
89. Section 2 of the International River Improvements Act is amended by adding the following in alphabetical order:
“Chief Review Officer”
« réviseur-chef »
« réviseur-chef »
“Chief Review Officer” means the review officer appointed as Chief Review Officer under subsection 244(1) of the Canadian Environmental Protection Act, 1999 and includes any review officer designated under subsection 244(3) of that Act to perform the functions of the Chief Review Officer;
90. (1) The portion of section 3 of the French version of the Act before paragraph (a) is replaced by the following:
Règlements
3. Aux fins de l’aménagement et de l’utilisation des ressources en eau du Canada dans l’intérêt national, le gouverneur en conseil peut prendre des règlements :
(2) Section 3 of the Act is amended by striking out “and” at the end of paragraph (c) and by replacing paragraph (d) with the following:
(d) respecting the exemption of international river improvements from the operation of this Act;
(e) authorizing the conduct of inspections under this Act in respect of any improvement exempted from the operation of this Act under the authority of regulations made under paragraph (d) and setting out the purposes for which those inspections may be carried out; and
(f) designating provisions of the regulations for the purpose of paragraph 33(1)(b).
91. Sections 4 to 6 of the Act are replaced by the following:
Constructing, operating, etc., improvement without licence or contrary to a licence
4. Except in accordance with a licence issued under this Act, no person shall construct, operate or maintain an international river improvement.
92. Section 7 of the Act is renumbered as subsection 7(1) and is amended by adding the following:
Inspections permitted
(2) Despite subsection (1), inspections may be carried out under this Act in respect of any international river improvement referred to in paragraph (1)(c) to verify that the improvement is being constructed or continues to be operated or maintained solely for domestic, sanitary or irrigation purposes or other similar consumptive uses.
93. Section 10 of the Act is replaced by the following:
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
Documents admissible in evidence
16.1 (1) A document made, given or issued under this Act and appearing to be signed by an analyst is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the document without proof of the signature or official character of the person appearing to have signed the document.
Attendance of analyst
(2) The party against whom the document is produced may, with leave of the court, require the attendance of the analyst who signed it.
Notice
(3) No document referred to in subsection (1) may be received in evidence unless the party intending to produce it has given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the document.
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(f); 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;
(o) directing the person to pay, in the manner prescribed by the court, an amount to environmental or other groups to assist in their work in or for a community near the place where the offence was committed;
(p) 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 international rivers;
(q) directing the person to pay, in the manner prescribed by the court, an amount to an educational institution including for scholarships for students enrolled in studies related to the environment; and
(r) 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 in respect of conduct that is the subject matter of the offence 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 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 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), knowingly contravening paragraph 5.2(b) or contravening 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;
(b.5) directing the person to pay, in the manner prescribed by the court, an amount to environmental or other groups to assist in their work in or for a community near the place where the offence was committed;
(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;
(1.1) Paragraph 16(1)(d.2) of the Act is replaced by the following:
(d.2) directing the offender to pay, in the manner prescribed by the court, an amount to an educational institution including for schol- arships for students enrolled in studies related to the environment;
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:
Compensation for cost of remedial or preventive action
(3) A court shall not, under paragraph 16(1)(d), order an offender to compensate a person for the cost of any remedial or preventive action referred to in that paragraph if the person is entitled to make a claim for compensation for that cost under the Marine Liability Act or the Arctic Waters Pollution Prevention Act.
Compensation for loss or damage — property
(4) A court shall not, under subsection 16(2), order an offender to pay to a person compensation for loss of or damage to property if the person is entitled to make a claim for compensation for that loss or 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.
1997, c. 37
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”
« agent de l’autorité »
« agent de l’autorité »
“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:
Designation of enforcement officers
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.
Contraventions Act
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.
Limitations regarding designations
(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.
Certificate of designation and oath
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.
Limitations must be specified
(2) The certificate must specify the limitations, if any, to which the designation is subject.
Right of passage
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.
Immunity
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:
Arrest without warrant
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:
Search and seizure
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:
When warrant not necessary
(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:
Custody of things seized
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.
Forfeiture if ownership not ascertainable
(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.
Perishable things
(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.
Liability for costs
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:
Offence
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.
Contravention of other provisions of regulations
(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.
Continuing offences
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.
Offences involving more than one animal, plant or object
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.
Deeming — second and subsequent offence
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.
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
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.
Relief from minimum fine
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.
Additional fine
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.
Notice to shareholders
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.
Liability of directors, officers, etc., of corporation
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.
Duties of directors and officers
(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.
Fundamental purpose of sentencing
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.
Sentencing principles
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.
Aggravating factors
(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.
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
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.
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
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;
(r) directing the person to pay, in the manner prescribed by the court, an amount to an educational institution including for scholarships for students enrolled in studies related to the environment; and
(s) requiring the person to comply with any other conditions that the court considers appropriate.
Suspended sentence
(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).
Imposition of sentence
(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.
Publication
(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.
Debt due to Her Majesty
(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.
Enforcement
(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.
Cancellation or suspension of permit, etc.
(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.
Coming into force and duration of order
(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.
Forfeiture
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.
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
(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.
Disposition by Minister
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.
Compensation for loss of property
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.
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.
Compensation for cost of remedial or preventive action
21.7 (1) A court shall not, under paragraph 21.3(1)(l), order a person to compensate another person for the cost of any remedial or preventive action referred to in that paragraph if the other person is entitled to make a claim for compensation for that cost under the Marine Liability Act.
Compensation for loss or damage — property
(2) A court shall not, under subsection 21.6(1), order a person to pay to another person an amount by way of satisfaction or compensation for loss of or damage to property if the other person is entitled to make a claim for compensation for that loss or damage under the Marine Liability Act.
Limitation period
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.
Contraventions Act
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.
Publication of information about contraventions
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.
Retention
(2) Information in the registry is to be maintained for a minimum of five years.
Review
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.
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.
115. (1) The portion of subsection 23(1) of the Act before paragraph (a) is replaced by the following:
Ticketing procedure
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:
Notice of forfeiture
(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.
2003, c. 22, s. 219(E)
(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.
1992, c. 52
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:
Officers and analysts
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:
Certificate to be shown
(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.
Obstruction
(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.
Immunity
(5) Officers and analysts are not personally liable for anything they do or omit to do in good faith under this Act.
116.1 The Act is amended by adding the following after section 12:
Documents admissible in evidence
12.1 (1) A document made, given or issued under this Act and appearing to be signed by an analyst is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the document without proof of the signature or official character of the person appearing to have signed the document.
Attendance of analyst
(2) The party against whom the document is produced may, with leave of the court, require the attendance of the analyst who signed it.
Notice
(3) No document referred to in subsection (1) may be received in evidence unless the party intending to produce it has given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the document.
117. Subsection 14(2) of the Act is replaced by the following:
Analysts
(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).
Conveyance
(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:
Right of passage
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.
Assistance
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:
Liability for costs
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);
1995, c. 22, s. 18, Sch. IV, item 27
122. Section 22 of the Act is replaced by the following:
Offence — persons
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.
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), 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 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.
Relief from minimum fine
(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.
Offence — persons
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).
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 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.
Determination of small revenue corporation status
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.
Deeming — second and subsequent offence
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.
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, other than a procedure commenced by means of a ticket.
Additional fine
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.
Notice to shareholders
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.
Contraventions Act
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.
Fundamental purpose of sentencing
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.
Sentencing principles
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.
Aggravating factors
(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.
Absence of aggravating factor
(3) The absence of an aggravating factor set out in subsection (2) is not a mitigating factor.
Meaning of “damage”
(4) For the purposes of paragraphs (2)(a) and (b), “damage” includes loss of use value and non-use value.
Reasons
(5) If the court is satisfied of the existence of one or more of the aggravating factors set out in subsection (2) but decides not to increase the amount of the fine because of that factor, the court shall give reasons for that decision.
Offences involving more than one animal or plant, etc.
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.
Continuing offence
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.
Application of fines
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.
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
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;
(f.1) directing the person to pay, in a manner specified by the court, an amount to enable research to be conducted into the protection or conservation of animals or plants;
(f.2) directing the person to pay, in the manner prescribed by the court, an amount to an educational institution including for scholarships for students enrolled in studies related to the environment;
(f.3) directing the person to pay, in the manner prescribed by the court, an amount to environmental or other groups to assist in their work in relation to the protection of the species of animal or plant that was the subject of the offence;
(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.
Publication
(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.
Debt due to Her Majesty
(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.
Enforcement
(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.
Cancellation or suspension of permits
(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.
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.
Suspended sentence
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.
Imposition of sentence
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.
Limitation period
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.
Minister may refuse or suspend permit
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:
Liability of directors, officers, etc., of corporation
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.
Directors’ 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) orders made under this Act.
124. The Act is amended by adding the following after section 27:
Publication of information about contraventions
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.
Retention
(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:
Review
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.
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.
ENACTMENT OF THE ENVIRONMENTAL VIOLATIONS ADMINISTRATIVE MONETARY PENALTIES ACT
Enactment of 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
Short title
1. This Act may be cited as the Environmental Violations Administrative Monetary Penalties Act.
INTERPRETATION
Definitions
2. The following definitions apply in this Act.
“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.
“Environmental Act”
« loi environnementale »
« loi environnementale »
“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”
« ministre »
« ministre »
“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”
« pénalité »
« pénalité »
“penalty” means an administrative monetary penalty imposed under this Act for a violation.
“prescribed”
Version anglaise seulement
Version anglaise seulement
“prescribed” means prescribed by regulation.
“review officer”
« réviseur »
« réviseur »
“review officer” means a person appointed as a review officer under the Canadian Environmental Protection Act, 1999.
PURPOSE OF ACT
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
Binding on Her Majesty
4. This Act is binding on Her Majesty in right of Canada or a province.
REGULATIONS
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.
Restriction
(2) Only contraventions and failures to comply that are offences under an Environmental Act may be designated under paragraph (1)(a).
Restriction — Canadian Environmental Protection Act, 1999
(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).
Restriction — amount of penalty
(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
Powers regarding notices of violation
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
Commission
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.
Liability of directors, officers, etc., of corporations
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.
Liability of directors and officers of corporate owners of ships and vessels
(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.
Liability of owners, operators, masters and chief engineers of ships and vessels
(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.
Proof of violation — persons
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.
Proof of violation — masters of ships
(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.
Proof of offence — pilots
(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.
Issuance and service of notice of violation
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.
Contents
(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
Certain defences not available
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.
Common law principles
(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.
Continuing violation
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.
Violation or offence
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.
Violations not offences
(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.
Limitation period
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
Right to request review
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.
Variation or cancellation of notice of violation
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.
Review
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.
Right to appear
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.
Witnesses
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.
Enforcement of summonses and orders
(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.
Procedure
(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.
Fees for witnesses
(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.
Decision
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.
Burden
(2) The Minister has the burden of establishing, on a balance of probabilities, that the person, ship or vessel committed the violation.
Correction of penalty
(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.
Service of copy and reasons
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.
Responsibility
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.
Determination is final
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.
Rules
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
Payment
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.
Failure to act
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
Debts to Her Majesty
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.
Limitation period
(2) No proceedings to recover the debt may be instituted more than five years after the day on which the debt becomes payable.
Application of fines
(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.
Certificate
28. (1) The Minister may issue a certificate certifying the unpaid amount of any debt referred to in subsection 27(1).
Registration in Federal Court
(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
Admissibility of documents
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
Contraventions Act
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
Order in council
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.
Published under authority of the Speaker of the House of Commons
Available from:
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Available from:
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