Transboundary Waters Protection Act (S.C. 2013, c. 12)
Full Document:
Assented to 2013-06-19
7. The heading before section 21 of the Act is replaced by the following:
Regulations and Orders
8. (1) Paragraph 21(1)(b) of the Act is replaced by the following:
(b) defining, for the purposes of this Act, any word or expression used in sections 11 to 42 that is not defined in this Act;
(2) Paragraphs 21(1)(c) and (d) of the Act are replaced by the following:
(d) specifying exceptions to the application of subsections 11(1) and 12(1);
(3) Subsection 21(1) of the Act is amended by adding “and” at the end of paragraph (k) and by repealing paragraph (l).
9. The Act is amended by adding the following after section 21:
Marginal note:Order — Schedule 3
21.01 (1) The Governor in Council may, by order, on the Minister’s recommendation, amend Schedule 3 by adding, deleting or amending the name of any transboundary waters.
Marginal note:Consultation
(2) Before recommending that Schedule 3 be amended, the Minister is to consult with the appropriate Minister of the province where the transboundary waters are located.
10. The heading before section 22 and sections 22 to 26 of the Act are replaced by the following:
Obstruction and False Information
Marginal note:Obstruction
22. Obstructing a person designated under section 20.1 or hindering them in carrying out their functions under this Act is prohibited.
Marginal note:Knowingly providing false or misleading information, etc.
23. (1) It is prohibited to, 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) It is prohibited to, 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.
Offences and Punishment
Marginal note:Offence
24. (1) Every person commits an offence who contravenes
(a) subsection 11(1), 12(1) or 13(1) or (2) or section 22;
(b) an order made by the Minister under section 19;
(c) subsection 23(1); or
(d) an order made by a court under this Act.
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), 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 $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 29 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
25. (1) Every person commits an offence who contravenes any provision of the Act or the regulations, other than a provision the contravention of which is an offence under subsection 24(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 29 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:Due diligence
26. A person is not to be convicted of an offence under paragraph 24(1)(a), (b) or (d) or subsection 25(1) if they establish that they exercised due diligence to prevent the commission of the offence.
Marginal note:Continuing offence
27. If an offence under this Act 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:Deeming — second and subsequent offence
28. (1) For the purposes of sections 24 and 25, 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 water resource management — of a substantially similar offence.
Marginal note:Application
(2) Subsection (1) applies only to previous convictions on indictment, 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
29. For the purposes of sections 24 and 25, 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
30. The court may impose a fine that is less than the minimum amount provided for in any of subsections 24(2) to (4) 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 the subsection.
Marginal note:Additional fine
31. 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
32. 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
33. If a corporation commits an offence under this Act, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced 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:Offences by employees, agents or mandataries
34. In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by the accused’s employee acting within the scope of their employment or the accused’s agent or mandatary acting within the scope of their authority, whether or not the employee, agent or mandatary is identified or has been prosecuted for the offence, unless the accused establishes that the accused exercised due diligence to prevent the commission of the offence.
Marginal note:Fundamental purpose of sentencing
35. The fundamental purpose of sentencing for offences under this Act is to contribute to respect for this Act through the imposition of just sanctions that have as their objectives
(a) to deter the offender and other persons from committing offences under this Act;
(b) to denounce unlawful conduct that causes damage or risk of damage to water resources; and
(c) to restore the environment harmed by the offence.
Marginal note:Sentencing principles
36. (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;
(b) the offence caused damage or risk of damage to any unique, particularly important or vulnerable environment;
(c) the damage caused by the offence is extensive, persistent or irreparable;
(d) other than in the case of a contravention of subsection 23(1), 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 in writing by an inspector 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 water resource management; 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 the factor, the court shall give reasons for that decision.
Marginal note:Orders of court
37. (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 the environment 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 subsection;
(d) directing the person to carry out environmental effects monitoring in the manner established by the Minister or directing the person to pay, in the manner specified by the court, an amount for the purposes of environmental effects monitoring;
(e) directing the person to implement an environmental management system that meets a recognized Canadian or international standard specified by the court;
(f) 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 sustainable water resource management;
(g) 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;
(h) 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;
(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 conviction, any information with respect to the person’s activities that the court considers appropriate in the circumstances;
(j) 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;
(k) directing the person to perform community service, subject to any reasonable conditions that may be imposed in the order;
(l) requiring the person to surrender to the Minister any licence issued under this Act to the person;
(m) prohibiting the person from applying for any new licence under this Act during any period that the court considers appropriate; and
(n) requiring the person to comply with any other conditions that the court considers appropriate for securing the person’s good conduct and for deterring the person and any other person from committing offences under this Act.
Marginal note:Publication
(2) If a person fails to comply with an order made under paragraph (1)(g), 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
(3) If the court makes an order under paragraph (1)(f) or (j) 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)(j) directing a person to compensate another person, other than Her Majesty in right of Canada, 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 them in that court in civil proceedings.
Marginal note:Cancellation or suspension of licences
(5) If the court makes an order under paragraph (1)(l), any licence 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 does not continue in force for more than three years after that day unless the court provides otherwise in the order.
Marginal note:Compensation for loss of property
38. (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 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:Limitation period
39. 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:Publication of information about contraventions
40. (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.
Injunctions
Marginal note:Injunctions
41. (1) If, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done or is about to do or is likely to do any act or thing constituting or directed toward the commission of an offence under this Act, the court may issue an injunction ordering any person named in the application
(a) to refrain from doing any act or thing that it appears to the court may constitute or be directed toward the commission of the offence; or
(b) to do any act or thing that it appears to the court may prevent the commission of the offence.
Marginal note:Notice
(2) The party or parties named in the application are to be given 48 hours’ notice before the injunction is issued, unless the urgency of the situation is such that service of notice would not be in the public interest.
Report
Marginal note:Review — sections 24 to 41
42. (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 24 to 41.
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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