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
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:
Marginal note: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:
Marginal note: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:
Marginal note: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:
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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:
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
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) to (c), “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.
Marginal note: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.
Marginal note: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).
Marginal note: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.
Marginal note: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).
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note:Retention
(2) Information in the registry is to be maintained for a minimum of five years.
Marginal note: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.
Marginal note: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.
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