Bill C-383

1st Session, 41st Parliament,

60-61 Elizabeth II, 2011-2012

house of commons of canada

BILL C-383

An Act to amend the International Boundary Waters Treaty Act and the International River Improvements Act

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

SHORT TITLE

1. This Act may be cited as the Transboundary Waters Protection Act.

INTERNATIONAL BOUNDARY WATERS TREATY ACT

2. Section 2 of the International Boundary Waters Treaty Act is replaced by the following:

2. The treaty relating to the boundary waters and to questions arising along the boundary between Canada and the United States made between His Majesty, King Edward VII, and the United States, signed at Washington on January 11, 1909, and the protocol of May 5, 1910, in Schedule 1, are hereby confirmed and sanctioned.

3. (1) The portion of section 10 of the Act before the definition “boundary waters” is replaced by the following:

10. The definitions in this section apply in sections 11 to 42.

(2) Section 10 of the Act is amended by adding the following in alphabetical order:

“analyst” means a person who is designated under section 20.1 to assist an inspector to verify compliance with this Act.

“bulk removal” means the removal of water from boundary or transboundary waters and the taking of that water, whether it has been treated or not, outside the Canadian portion of the water basin — set out in Schedule 2 — in which the waters are located

(a) by any means of diversion, including by pipeline, canal, tunnel, aqueduct or channel; or

(b) by any other means by which more than 50 000 L of water are taken outside the water basin per day.

Bulk removal does not include the taking of a manufactured product that contains water, including water and other beverages in bottles or other containers, outside a water basin.

“inspector” means a person who is designated under section 20.1 to verify compliance with this Act.

“non-commercial project” means a project involving bulk removal in which no one is required to pay for the water that is removed.

“transboundary waters” means those waters that, in their natural channels, flow across the international boundary between Canada and the United States, including those set out in Schedule 3.

4. Section 13 of the Act is replaced by the following:

13. (0.1) The purpose of this section is to prevent the risk of environmental harm resulting from bulk removal.

(1) Despite section 11, the bulk removal of boundary waters is prohibited.

(2) Despite section 12, the bulk removal of transboundary waters is prohibited.

(3) For the purposes of subsections (1) and (2) and the application of the treaty, bulk removal is deemed, given its cumulative effects on boundary waters and on transboundary waters that flow to the United States, to affect the natural level or flow of those waters on the other side of the international boundary.

(4) Subsections (1) and (2) do not apply in respect of boundary waters or transboundary waters that are used

(a) in a vehicle, including a vessel, aircraft or train,

(i) as ballast,

(ii) for the operation of the vehicle, or

(iii) for people, animals or goods on or in the vehicle; or

(b) in a non-commercial project on a short-term basis for firefighting or humanitarian purposes.

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

19. (1) If a person contravenes subsection 11(1), 12(1) or 13(1) or (2), the Minister may

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

Administration and Enforcement

Designation

20.1 For the purposes of the administration and enforcement of this Act, the Minister may designate persons or classes of persons to exercise powers in relation to any matter referred to in the designation, including, with the approval of a provincial government, persons or classes of persons who are authorized by that government to exercise powers and carry out functions with respect to bodies of water in the province.

Powers

20.2 (1) An inspector may, for the purpose of verifying compliance with this Act, enter a place, including a vehicle, in which they have reasonable grounds to believe an object to which this Act applies is located or an activity regulated by this Act is taking place.

(2) The inspector may, for that purpose,

(a) examine anything in the place;

(b) use any means of communication in the place or cause it to be used;

(c) use any computer system in the place, or cause it to be used, to examine data contained in or available to it;

(d) prepare a document, or cause one to be prepared, based on the data;

(e) use any copying equipment in the place, or cause it to be used;

(f) remove anything from the place for examination or copying;

(g) direct any person to put any machinery, vehicle or equipment in the place into operation or to cease operating it;

(h) prohibit or limit access to all or part of the place;

(i) take samples of anything in the place; and

(j) conduct tests on, or take measurements of, anything in the place.

(3) If the place is a dwelling-house, the inspector may enter it without the occupant’s consent only under the authority of a warrant issued under subsection (4).

(4) On ex parte application, a justice of the peace may issue a warrant authorizing an inspector who is named in it to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that

(a) the dwelling-house is a place referred to in subsection (1);

(b) entry to the dwelling-house is necessary to verify compliance with this Act; and

(c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant.

(5) In executing a warrant to enter a dwelling-house, an inspector may use force only if the use of force has been specifically authorized in the warrant and the inspector is accompanied by a peace officer.

(6) On ex parte application, a justice of the peace may issue a warrant authorizing an inspector who is named in it to enter a place other than a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that

(a) the place is a place referred to in subsection (1);

(b) entry to the place is necessary to verify compliance with this Act;

(c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused, that consent to entry cannot be obtained from the occupant, that entry cannot be effected without the use of force or that the place is abandoned; and

(d) all reasonable attempts were made to notify the owner, operator or person in charge of the place.

(7) The justice may waive the requirement to give notice under paragraph (6)(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 justice’s jurisdiction or that it is not in the public interest to give the notice.

(8) For the purpose of verifying compliance with this Act, an inspector may, at any reasonable time, direct that any vehicle be stopped — or be moved, by the route and in the manner that they specify, to a specified place — and they may, for a reasonable time, detain that vehicle.

20.3 (1) An analyst may, at an inspector’s request, accompany them into a place for the purpose of assisting them to verify compliance with this Act.

(2) The analyst may, for that purpose,

(a) examine anything in the place;

(b) take samples of anything in the place; and

(c) conduct tests on, or take measurements of, anything in the place.

20.4 An inspector or analyst may dispose of a sample taken in the place in any manner that they consider appropriate.

20.5 (1) For the purpose of gaining entry to a place referred to in subsection 20.2(1), an inspector and any analyst accompanying them may enter private property and pass through it, and are not liable for doing so. For greater certainty, no person has a right to object to that use of the property and no warrant is required for the entry, unless the property is a dwelling-house.

(2) A person may, at the inspector’s request, accompany the inspector to assist them to gain entry to the place referred to in subsection 20.2(1) and is not liable for doing so.

20.6 The owner or person in charge of the place and every person in the place shall give all assistance that is reasonably required to enable the inspector to verify compliance with this Act and shall provide any documents, data or information that is reasonably required for that purpose.

20.7 The Minister shall provide every inspector and analyst with a certificate of designation and, on entering a place, they shall produce the certificate to the person in charge of the place on request.

20.8 An inspector and an analyst are not personally liable for anything they do or omit to do in good faith in carrying out their functions.

20.9 (1) The Minister may, for the purpose of verifying compliance with 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.

(2) Any person who is required to do anything under subsection (1) shall, despite any law to the contrary, comply with the requirement.

7. The heading before section 21 of the Act is replaced by the following:

Regulations and Orders

8. (1) Paragraph 21(1)(b) of the Act is replaced by the following:

(b) defining, for the purposes of this Act, any word or expression used in sections 11 to 42 that is not defined in this Act;

(2) Paragraphs 21(1)(c) and (d) of the Act are replaced by the following:

(d) specifying exceptions to the application of subsections 11(1) and 12(1);

(3) Subsection 21(1) of the Act is amended by adding “and” at the end of paragraph (k) and by repealing paragraph (l).

9. The Act is amended by adding the following after section 21:

21.01 (1) The Governor in Council may, by order, on the Minister’s recommendation, amend Schedule 3 by adding, deleting or amending the name of any transboundary waters.

(2) Before recommending that Schedule 3 be amended, the Minister is to consult with the appropriate Minister of the province where the transboundary waters are located.

10. The heading before section 22 and sections 22 to 26 of the Act are replaced by the following:

Obstruction and False Information

22. Obstructing a person designated under section 20.1 or hindering them in carrying out their functions under this Act is prohibited.

23. (1) It is prohibited to, 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.

(2) It is prohibited to, 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

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

(a) subsection 11(1), 12(1) or 13(1) or (2) or section 22;

(b) an order made by the Minister under section 19;

(c) subsection 23(1); or

(d) an order made by a court under this Act.

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

(a) on conviction on indictment

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

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

(b) on summary conviction

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

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

(3) Every person, other than an individual or a corporation referred to in subsection (4), 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.

(4) Every corporation that commits an offence under subsection (1) and that the court determines under section 29 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.

25. (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 24(1).

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

(a) on conviction on indictment

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

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

(b) on summary conviction

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

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

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

(a) on conviction on indictment

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

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

(b) on summary conviction

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

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

(4) Every corporation that commits an offence under subsection (1) and that the court determines under section 29 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.

26. A person is not to be convicted of an offence under paragraph 24(1)(a), (b) or (d) or subsection 25(1) if they establish that they exercised due diligence to prevent the commission of the offence.

27. If an offence under this Act is committed or continued on more than one day, it constitutes a separate offence for each day on which it is committed or continued.

28. (1) For the purposes of sections 24 and 25, 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.

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

29. For the purposes of sections 24 and 25, 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.

30. The court may impose a fine that is less than the minimum amount provided for in any of subsections 24(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 the subsection.

31. 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.

32. 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.

33. If a corporation commits an offence under this Act, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced 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.

34. In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by the accused’s employee acting within the scope of their employment or the accused’s agent or mandatary acting within the scope of their authority, whether or not the employee, agent or mandatary is identified or has been prosecuted for the offence, unless the accused establishes that the accused exercised due diligence to prevent the commission of the offence.

35. 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 other persons from committing offences under this Act;

(b) to denounce unlawful conduct that causes damage or risk of damage to water resources; and

(c) to restore the environment harmed by the offence.

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

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

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

(2) The aggravating factors are the following:

(a) the offence caused damage or risk of damage to 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) other than in the case of a contravention of subsection 23(1), 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 in writing by an inspector 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.

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

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

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

37. (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 subsection;

(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 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;

(g) 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;

(h) 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;

(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 conviction, any information with respect to the person’s activities that the court considers appropriate in the circumstances;

(j) 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;

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

(l) requiring the person to surrender to the Minister any licence issued under this Act to the person;

(m) prohibiting the person from applying for any new licence under this Act during any period that the court considers appropriate; and

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

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

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

(4) If the court makes an order under paragraph (1)(j) directing a person to compensate another person, other than 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 them in that court in civil proceedings.

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

(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 does not continue in force for more than three years after that day unless the court provides otherwise in the order.

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

(2) If the amount ordered to be paid 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 offend- er in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

39. 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.

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

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

Injunctions

41. (1) If, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done or is about to do or is likely to do any act or thing constituting or directed toward the commission of an offence under this Act, the court may issue an injunction ordering any person named in the application

(a) to refrain from doing any act or thing that it appears to the court may constitute or be directed toward the commission of the offence; or

(b) to do any act or thing that it appears to the court may prevent the commission of the offence.

(2) The party or parties named in the application are to be given 48 hours’ notice before the injunction is issued, unless the urgency of the situation is such that service of notice would not be in the public interest.

Report

42. (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 41.

(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.

11. The schedule to the Act is renumbered as Schedule 1.

12. The Act is amended by adding, after Schedule 1, the Schedules 2 and 3 set out in the schedule to this Act.

CONSEQUENTIAL AMENDMENT TO THE INTERNATIONAL RIVER IMPROVEMENTS ACT

13. (1) The portion of the definition “international river improvement” before paragraph (a) in section 2 of the International River Improvements Act is replaced by the following:

“international river improvement” means a dam, obstruction, canal, reservoir, pipeline or other work the purpose or effect of which is

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

4.1 (1) The purpose of this section is to prevent the risk of environmental harm resulting from the permanent loss of water from Canadian ecosystems.

(2) No licence may be issued for the construction, operation or maintenance of an international river improvement that links waters that are neither boundary waters nor transboundary waters to an international river if the purpose or effect of the improvement is to increase the annual flow of the international river at the international boundary.

COMING INTO FORCE

15. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.