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
10. The Act is amended by adding the following after section 44:
Liability for Costs
Marginal note: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:
Marginal note: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:
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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).
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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).
Marginal note: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.
Marginal note: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.
Marginal note: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.
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: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
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) and (b), “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: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
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