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
1997, c. 37SAGUENAY-ST. LAWRENCE MARINE PARK ACT
115. (1) The portion of subsection 23(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Ticketing procedure
23. (1) In addition to the procedures set out in the Criminal Code for commencing a proceeding, proceedings in respect of any prescribed offence may be commenced by a park warden or enforcement officer by
(2) Paragraph 23(2)(b) of the Act is replaced by the following:
(b) include a statement, signed by the park warden or enforcement officer who completes the ticket, that the warden or officer has reasonable grounds to believe that the accused committed the offence;
(3) Subsection 23(3) of the Act is replaced by the following:
Marginal note:Notice of forfeiture
(3) If a thing is seized under this Act and proceedings relating to it are commenced by way of the ticketing procedure, the park warden or enforcement officer who completed the ticket shall give written notice to the accused that if the accused pays the prescribed fine within the period set out in the ticket, the thing, or any proceeds realized from its disposition, shall immediately be forfeited to Her Majesty.
Marginal note:2003, c. 22, s. 219(E)
(4) Paragraph 23(4)(b) of the Act is replaced by the following:
(b) anything seized from the accused under this Act relating to the offence described in the ticket, or any proceeds realized from its disposition, is forfeited to Her Majesty in right of Canada if the ticket was completed by a park warden or an enforcement officer who is a member of the federal public administration, or is forfeited to Her Majesty in right of Quebec if the ticket was completed by any other enforcement officer.
1992, c. 52WILD ANIMAL AND PLANT PROTECTION AND REGULATION OF INTERNATIONAL AND INTERPROVINCIAL TRADE ACT
116. (1) Subsection 12(1) of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act is replaced by the following:
Marginal note:Officers and analysts
12. (1) The Minister may designate such persons or classes of persons as the Minister considers necessary to act as officers or analysts for the purposes of this Act or any provision of this Act, and if the person to be designated is an employee, or the class of persons to be designated consists of employees, of the government of a province, the Minister shall only designate that person or class with the agreement of that government.
(2) Subsections 12(3) and (4) of the Act are replaced by the following:
Marginal note:Certificate to be shown
(3) On entering any place under this Act, an officer or analyst shall, on request, show the person in charge or the occupant of the place a certificate, in the form approved by the Minister, certifying that the officer or analyst, as the case may be, has been designated under this section.
Marginal note:Obstruction
(4) No person shall knowingly make any false or misleading statement either orally or in writing to, or obstruct or hinder, an officer or analyst who is carrying out duties or functions under this Act or the regulations.
Marginal note:Immunity
(5) Officers and analysts are not personally liable for anything they do or omit to do in good faith under this Act.
116.1 The Act is amended by adding the following after section 12:
Marginal note:Documents admissible in evidence
12.1 (1) A document made, given or issued under this Act and appearing to be signed by an analyst is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the document without proof of the signature or official character of the person appearing to have signed the document.
Marginal note:Attendance of analyst
(2) The party against whom the document is produced may, with leave of the court, require the attendance of the analyst who signed it.
Marginal note:Notice
(3) No document referred to in subsection (1) may be received in evidence unless the party intending to produce it has given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the document.
117. Subsection 14(2) of the Act is replaced by the following:
Marginal note:Analysts
(1.1) An analyst may, for the purposes of this Act, accompany an officer who is carrying out an inspection of a place under this section, and the analyst may, when accompanying the officer, enter the place and exercise any of the powers described in paragraphs (1)(a) and (b).
Marginal note:Conveyance
(2) For the purposes of carrying out the inspection, an officer may stop a conveyance or direct that it be moved by the route and in the manner that the officer may specify, to a place specified by the officer where the inspection can be carried out.
118. The Act is amended by adding the following after section 14:
Marginal note:Right of passage
14.1 While carrying out duties or functions under this Act, officers and analysts, and any persons accompanying them, may enter on and pass through or over private property without being liable for doing so and without any person having the right to object to that use of the property.
Marginal note:Assistance
14.2 The owner or person in charge of a place being inspected under section 14, and every person found in the place, shall
(a) give the officer or analyst all reasonable assistance to enable the officer or analyst to carry out their duties or functions under this Act; and
(b) provide the officer or analyst with any information with respect to the administration of this Act that he or she may reasonably require.
119. Subsection 20(2) of the Act is repealed.
120. The Act is amended by adding the following after section 20:
Marginal note:Liability for costs
20.1 If a thing is seized under this Act or under a warrant issued under the Criminal Code, the importer or exporter, as the case may be, and the person who owned the thing at the time it was seized, the person who had charge or control of the thing immediately before it was seized and the person who possessed it immediately before it was seized are jointly and severally, or solidarily, liable for all the costs of seizure, detention, maintenance and forfeiture, including any destruction or disposal costs, incurred by Her Majesty in right of Canada in relation to the thing in excess of any proceeds of its disposition, if any.
121. Subsection 21(1) of the Act is amended by adding the following after paragraph (g):
(g.1) designating provisions of the regulations for the purposes of paragraph 22(1)(b);
Marginal note:1995, c. 22, s. 18, Sch. IV, item 27
122. Section 22 of the Act is replaced by the following:
Marginal note:Offence — persons
22. (1) Every person commits an offence who contravenes
(a) any provision of this Act;
(b) any provision of the regulations designated by regulations made under paragraph 21(1)(g.1); or
(c) any order made under this Act by a court.
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 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.
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 22.02 to be a small revenue corporation is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and
(ii) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and
(ii) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.
Marginal note:Relief from minimum fine
(5) The court may impose a fine that is less than the minimum amount provided for in this section if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in this section.
Marginal note:Offence — persons
22.01 (1) Every person commits an offence who contravenes any provision of the regulations, other than a provision the contravention of which is an offence under subsection 22(1).
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 22.02 to be a small revenue corporation is liable,
(a) on conviction on indictment,
(i) for a first offence, to a fine of not more than $250,000, and
(ii) for a second or subsequent offence, to a fine of not more than $500,000; or
(b) on summary conviction,
(i) for a first offence, to a fine of not more than $50,000, and
(ii) for a second or subsequent offence, to a fine of not more than $100,000.
Marginal note:Determination of small revenue corporation status
22.02 For the purpose of sections 22 and 22.01, a court may determine a corporation to be a small revenue corporation if the court is satisfied that the corporation’s gross revenues for the 12 months immediately before the day on which the subject matter of the proceedings arose — or, if it arose on more than one day, for the 12 months immediately before the first day on which the subject matter of the proceedings arose — were not more than $5,000,000.
Marginal note:Deeming — second and subsequent offence
22.03 (1) For the purposes of subsections 22(2) to (4) and 22.01(2) to (4), a conviction for a particular offence under this Act is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the offender has been previously convicted — under any Act of Parliament, or any Act of the legislature of a province, that relates to environmental or wildlife conservation or protection — of a substantially similar offence.
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, other than a procedure commenced by means of a ticket.
Marginal note:Additional fine
22.04 If a person is convicted of an offence under this Act and the court is satisfied that, as a result of the commission of the offence, the person acquired any property, benefit or advantage, the court shall order the person to pay an additional fine in an amount equal to the court’s estimation of the value of that property, benefit or advantage. The additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.
Marginal note:Notice to shareholders
22.05 If a corporation that has shareholders has been convicted of an offence under this Act, the court shall make an order directing the corporation to notify its shareholders, in the manner and within the time directed by the court, of the facts relating to the commission of the offence and of the details of the punishment imposed.
Marginal note:Contraventions Act
22.06 If an offence under this Act is designated as a contravention under the Contraventions Act, subsection 8(5) of that Act does not apply in respect of the fine that may be established for that contravention.
Marginal note:Fundamental purpose of sentencing
22.07 The fundamental purpose of sentencing for offences under this Act is to contribute, in light of the numerous serious threats to plants and animals and their importance to the environment, to respect for the law regulating international and interprovincial trade in animals and plants through the imposition of just sanctions that have as their objectives
(a) to deter the offender and any other person from committing offences under this Act;
(b) to denounce the unlawful trade in certain animals and plants and to make it unprofitable; and
(c) to recover, if possible, certain species of animals and plants unlawfully traded.
Marginal note:Sentencing principles
22.08 (1) In addition to the principles and factors that the court is otherwise required to consider, including those set out in sections 718.1 to 718.21 of the Criminal Code, the court shall consider the following principles when sentencing a person who is convicted of an offence under this Act:
(a) the amount of the fine should be increased to account for every aggravating factor associated with the offence, including the aggravating factors set out in subsection (2); and
(b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.
Marginal note:Aggravating factors
(2) The aggravating factors are the following:
(a) the offence caused damage or risk of damage, directly or indirectly, to animals or plants;
(b) the offence caused damage or risk of damage to a unique, rare, particularly important or vulnerable species of animal or plant or population of animals or plants;
(c) the offender committed the offence intentionally or recklessly;
(d) the offender profited, or intended to profit, by committing the offence;
(e) the offender has a history of non-compliance with federal or provincial legislation that relates to environmental or wildlife conservation or protection; and
(f) the offence involved a high degree of planning.
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:Offences involving more than one animal or plant, etc.
22.09 If an offence under this Act involves more than one animal or plant, or part or derivative of an animal or plant, the fine to be imposed in respect of that offence may, despite sections 22 and 22.01, be the total of the fines that would have been imposed if each of the animals, plants, parts or derivatives had been the subject of a separate information.
Marginal note:Continuing offence
22.1 If an offence under this Act is committed or continued on more than one day, it is deemed to be a separate offence for each day on which the offence is committed or continued.
Marginal note:Application of fines
22.11 (1) All fines received by the Receiver General in respect of the commission of an offence under this Act, other than fines collected under the Contraventions Act, are to be credited to the Environmental Damages Fund, an account in the accounts of Canada, and used for purposes related to protecting, conserving or restoring the environment or for administering that Fund.
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
22.12 (1) If a person is convicted of an offence under this Act, in addition to any punishment imposed, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing one or more of the following prohibitions, directions or requirements:
(a) prohibiting the person from doing any act or engaging in any activity that could, in the opinion of the court, result in the continuation or repetition of the offence;
(b) directing the person to take any action that the court considers appropriate to remedy or avoid any harm to any animal or plant to which any provision of this Act applies that resulted or may result from the commission of the offence;
(c) directing the person to publish, in the manner specified by the court, the facts relating to the commission of the offence and the details of the punishment imposed, including any orders made under this subsection;
(d) directing the person to notify, at the person’s own cost and in the manner specified by the court, any person aggrieved or affected by the offender’s conduct of the facts relating to the commission of the offence and of the details of the punishment imposed, including any orders made under this subsection;
(e) directing the person to compensate any person, monetarily or otherwise, in whole or in part, for the cost of any remedial or preventive action taken, caused to be taken or to be taken as a result of the act or omission that constituted the offence, including costs of assessing appropriate remedial or preventive action;
(f) directing the person to perform community service in accordance with any reasonable conditions that may be specified in the order;
(f.1) directing the person to pay, in a manner specified by the court, an amount to enable research to be conducted into the protection or conservation of animals or plants;
(f.2) directing the person to pay, in the manner prescribed by the court, an amount to an educational institution including for scholarships for students enrolled in studies related to the environment;
(f.3) directing the person to pay, in the manner prescribed by the court, an amount to environmental or other groups to assist in their work in relation to the protection of the species of animal or plant that was the subject of the offence;
(g) directing the person to post a bond, provide surety or pay into court an amount of money that the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction or requirement mentioned in this subsection;
(h) directing the person to pay to Her Majesty in right of Canada an amount of money that the court considers appropriate for the purpose of promoting the conservation or protection of animals or plants;
(i) directing the person to submit to the Minister, when requested to do so by the Minister at any time within three years after the date of the conviction, any information respecting the activities of the person that the court considers appropriate in the circumstances;
(j) requiring the person to comply with any other conditions that the court considers appropriate in the circumstances for securing the person’s good conduct and for deterring the person and any other person from committing offences under this Act;
(k) requiring the person to surrender to the Minister any permit issued under this Act to the person; and
(l) prohibiting the person from applying for any new permit under this Act during any period that the court considers appropriate.
Marginal note:Publication
(2) If a person fails to comply with an order made under paragraph (1)(c), the Minister may, in the manner that the court directed the person to do so, publish the facts relating to the commission of the offence and the details of the punishment imposed and recover the costs of publication from the offender.
Marginal note:Debt due to Her Majesty
(3) If the court makes an order under paragraph (1)(e) or (h) directing a person to pay an amount to Her Majesty in right of Canada, or if the Minister incurs publication costs under subsection (2), the amount or the costs, as the case may be, constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.
Marginal note:Enforcement
(4) If the court makes an order under paragraph (1)(e) directing a person to pay an amount to another person, other than to Her Majesty in right of Canada, and the amount is not paid without delay, that other person may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the person who was directed to pay the amount in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.
Marginal note:Cancellation or suspension of permits
(5) If the court makes an order under paragraph (1)(k), any permit to which the order relates is cancelled unless the court makes an order suspending it for any period that the court considers appropriate.
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.
Marginal note:Suspended sentence
22.13 If a person is convicted of an offence under this Act and the court suspends the passing of sentence pursuant to paragraph 731(1)(a) of the Criminal Code, the court may, in addition to any probation order made under that paragraph, make an order directing the person to comply with any prohibition, direction or requirement mentioned in section 22.12.
Marginal note:Imposition of sentence
22.14 If a person whose sentence has been suspended fails to comply with an order made under 22.12 or is convicted, within three years after the day on which the order was made, of another offence under this Act, the court may, on the application of the prosecution, impose any sentence that could have been imposed if the passing of sentence had not been suspended.
Marginal note:Limitation period
22.15 No proceedings by way of summary conviction in respect of an offence under this Act may be instituted more than five years after the day on which the subject matter of the proceedings arose, unless the prosecutor and the defendant agree that they may be instituted after the five years.
Marginal note:Minister may refuse or suspend permit
22.16 The Minister may refuse to issue a permit under this Act, or may cancel such a permit, if the applicant or the holder has been convicted of an offence under this Act.
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