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
22. Subsections 23(2) and (3) of the French version of the Act are replaced by the following:
Marginal note:Confiscation de plein droit
(2) Dans le cas où leur propriétaire — ou la personne qui a droit à leur possession — ne peut être identifié dans les trente jours suivant la saisie, les objets, ou le produit de leur disposition, sont confisqués au profit de Sa Majesté du chef du Canada, si le garde ou l’agent saisissant est un fonctionnaire de l’administration publique fédérale, ou au profit de Sa Majesté du chef d’une province, si l’agent saisissant est un employé d’une autorité provinciale, municipale ou locale ou d’un gouvernement autochtone.
Marginal note:Biens périssables
(3) Le garde ou l’agent peut disposer, notamment par destruction, des objets saisis périssables; le produit de leur disposition est soit remis à leur propriétaire ou à la personne qui a droit à leur possession, soit, lorsque des poursuites fondées sur la présente loi ont été intentées dans les quatre-vingt-dix jours suivant la saisie, retenu par le garde ou l’agent jusqu’au règlement de l’affaire.
23. The Act is amended by adding the following after section 23:
Marginal note:Liability for costs
23.1 If a thing is seized under this Act, the person who owned the thing at the time that 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.
24. (1) Subsection 24(1) of the Act is replaced by the following:
Marginal note:Offence
24. (1) Every person who contravenes any provision of this Act or any provision of the regulations designated by regulations made under paragraph 16(1)(n) 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, and
(B) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000,
(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 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 24.1 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, and
(B) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000,
(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 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 24.1 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 or of conditions of permits, etc.
(1.1) Every person who contravenes any provision of the regulations, other than a provision designated by regulations made under paragraph 16(1)(n), or any condition of a permit or other authorizing instrument issued under this Act 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 24.1 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 24.1 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.
(2) Subsection 24(2) of the French version of the Act is replaced by the following:
Marginal note:Infraction continue
(2) Il est compté une infraction distincte à la présente loi pour chacun des jours au cours desquels se commet ou se continue l’infraction.
(3) Section 24 of the Act is amended by adding the following after subsection (2):
Marginal note:Offences involving more than one animal, plant or object
(2.1) If an offence involves more than one animal, plant or object, the fine to be imposed in respect of that offence may, despite subsections (1) and (1.1), 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
(2.2) For the purposes of this section, 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
(2.3) Subsection (2.2) 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.
25. The Act is amended by adding the following after section 24:
Marginal note:Determination of small revenue corporation status
24.1 For the purpose of section 24, 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
24.2 The court may impose a fine that is less than the minimum amount provided for in subsection 24(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
24.3 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
24.4 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:Liability of directors, officers, etc., of corporations
24.5 (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 of corporations
(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, the Minister or the superintendent under this Act; and
(c) directions of the superintendent, a marine conservation area warden or an enforcement officer made under this Act.
Marginal note:Fundamental purpose of sentencing
24.6 The fundamental purpose of sentencing for offences under this Act is to contribute to respect for the law establishing and protecting marine conservation areas 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 marine conservation areas; and
(c) to restore marine conservation area resources.
Marginal note:Sentencing principles
24.7 (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 marine conservation area resources;
(b) the offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable marine conservation area 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 marine conservation area 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.
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