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 (S.C. 2009, c. 14)
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Assented to 2009-06-18
1999, c. 33CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
Marginal note:2005, c. 23, s. 41
73. Section 280 of the Act is replaced by the following:
Marginal note: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.
Marginal note: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.
Marginal note:2005, c. 23, s. 41
74. Subsection 280.1(3) of the Act is replaced by the following:
Marginal note: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.
Marginal note:2005, c. 23, s. 41
75. Subsection 280.2(2) of the Act is replaced by the following:
Marginal note: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.
Marginal note:2005, c. 23, s. 41
76. Sections 280.3 to 280.5 of the Act are replaced by the following:
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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).
Marginal note: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.
Marginal note:2005, c. 23, s. 42
77. Subsection 281.1(2) of the Act is replaced by the following:
Marginal note: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.
Marginal note: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:
Marginal note: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:
Marginal note: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:
Marginal note: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
Marginal note: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 damages 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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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:
Marginal note: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:
Marginal note: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:
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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:
Marginal note: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.
Marginal note: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.
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