Canadian Energy Regulator Act (S.C. 2019, c. 28, s. 10)

Sentencing Respecting Releases from Pipelines

Marginal note:Sentencing principles

• 174 (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 must consider the following principles when sentencing a person who is found guilty of an offence under this Act in relation to an actual or potential unintended or uncontrolled release of oil, gas or any other commodity from a pipeline:

  • (a) the amount of the fine should be increased to account for each 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 the court must consider are the following:

  • (a) the offence caused harm or risk of harm to human health or safety;

  • (b) the offence caused damage or risk of damage to the environment or environmental quality;

  • (c) the offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable component of the environment;

  • (d) the damage or harm caused by the offence is extensive, persistent or irreparable;

  • (e) the offender committed the offence intentionally or recklessly;

  • (f) by committing the offence or failing to take action to prevent its commission, the offender increased or intended to increase their revenue or decreased or intended to decrease their costs;

  • (g) the offender has a history of non-compliance with federal or provincial legislation that relates to safety or environmental 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.

• Marginal note:Absence of aggravating factor

  (3) The absence of an aggravating factor set out in subsection (2) is not a mitigating factor.

• Marginal note:Meaning of damage

  (4) For the purposes of paragraphs (2)(b) to (d), 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 must give reasons for that decision.

Marginal note:Orders of court

• 175 (1) If a person is found guilty of an offence under this Act in relation to an actual or potential unintended or uncontrolled release of oil, gas or any other commodity from a pipeline, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, in addition to any other punishment that may be imposed under this Act, make an order that has any or all of the following effects:

  • (a) prohibiting the offender from committing an act or engaging in an activity that may, in the opinion of the court, result in the continuation or repetition of the offence;

  • (b) directing the offender to take any action that the court considers appropriate to remedy or avoid any harm to the environment that results or may result from the act or omission that constituted the offence;

  • (c) directing the offender to carry out environmental effects monitoring in the manner established by the Commission or directing the offender to pay, in the manner specified by the court, an amount of money for the purposes of environmental effects monitoring;

  • (d) directing the offender to make changes to their environmental protection program that the Commission considers appropriate;

  • (e) directing the offender to have an environmental audit conducted by a person of a class and at the times specified by the Commission and directing the offender to take the measures that it considers appropriate to remedy any deficiencies revealed during the audit;

  • (f) directing the offender to pay to Her Majesty in right of Canada, for the purpose of promoting the conservation, protection or restoration of the environment, or to pay into the Environmental Damages Fund — an account in the accounts of Canada — an amount of money that the court considers appropriate;

  • (g) directing the offender 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 offender to notify, at the offender’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;

  • (i) directing the offender to post a bond or provide a suretyship or pay an amount of money into court that the court considers appropriate to ensure that the offender complies with all or part of any prohibition, direction, requirement or condition that is specified in the order;

  • (j) directing the offender to perform community service, subject to any reasonable conditions that may be imposed by the court;

  • (k) directing the offender to pay, in the manner prescribed by the court, an amount of money to environmental, health or other groups to assist in their work;

  • (l) directing the offender to pay, in the manner prescribed by the court, an amount of money to an educational institution including for scholarships for students enrolled in studies related to the environment;

  • (m) requiring the offender to comply with any conditions that the court considers appropriate in the circumstances for securing the offender’s good conduct and for preventing the offender from repeating the same offence or committing another offence under this Act; and

  • (n) prohibiting the offender from applying for any new authorization under this Act during any period that the court considers appropriate.

• Marginal note:Coming into force and duration of order

  (2) An order made under subsection (1) comes into force on the day on which the order is made or on any other day that the court may determine, but must not continue in force for more than three years after that day.

• Marginal note:Publication

  (3) If an offender does not comply with an order requiring the publication of facts relating to the offence and the details of the punishment, the Regulator may, in the manner that the court directed the offender, publish those facts and details and recover the costs of publication from the offender.

• Marginal note:Debt due to Her Majesty

  (4) If the Regulator incurs publication costs under subsection (3), the costs constitute a debt due to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction.

Marginal note:Variation of sanctions

• 176 (1) Subject to subsection (2), if a court has made, in relation to an offender, an order under section 175, the court may, on application by the offender or the Regulator, require the offender to appear before it and, after hearing the offender and the Regulator, may vary the order in one or more of the following ways that the court considers appropriate because of a change in the offender’s circumstances since the order was made:

  • (a) by making changes to any prohibition, direction, requirement or condition that is specified in the order or by extending the time during which the order is to remain in force for any period that is not more than one year; or

  • (b) by decreasing the time during which the order is to remain in force or by relieving the offender, either absolutely or partially or for any period, of compliance with any condition that is specified in the order.

• Marginal note:Notice

  (2) Before varying the order under subsection (1), the court may direct that notice be given to any persons that the court considers to be interested and may hear any of those persons.

Marginal note:Subsequent applications with leave

177 If an application made under subsection 176(1) in relation to an offender has been heard by a court, no other application is to be made under section 176 in relation to the offender except with leave of the court.

Marginal note:Recovery of fines and amounts

178 If a person is found guilty of an offence under this Act and a fine that is imposed is not paid when required, or if a court orders an offender to pay an amount under subsection 175(1) or 176(1) and the amount is not paid, the prosecutor may, by filing the conviction or order, as the case may be, enter as a judgment the amount of the fine or the amount ordered to be paid, and costs, if any, in any court of competent jurisdiction in Canada, and the judgment is enforceable against the person in the same manner as if it were a judgment against them in that court in civil proceedings.

PART 3Pipelines

General

Marginal note:Companies only

• 179 (1) A person, other than a company, must not construct, operate or abandon a pipeline.

• Marginal note:Exception

  (2) Nothing in this section is to be construed to prohibit or prevent any person from operating or improving a pipeline constructed before October 1, 1953, but every pipeline constructed before that date must be operated in accordance with this Act.

Marginal note:Operation of pipeline

• 180 (1) A company must not operate a pipeline unless

  • (a) a certificate is in force with respect to that pipeline; and

  • (b) the company has been granted leave under this Part to open the pipeline.

• Marginal note:Compliance with conditions

  (2) A company must not operate a pipeline other than in accordance with the conditions of the certificate or orders issued with respect to that pipeline.

Marginal note:Limitations

• 181 (1) A company must not, unless the Commission has, by order, granted it leave to do so,

  • (a) sell or otherwise transfer, or lease, in whole or in part, its pipeline or its abandoned pipeline to any person;

  • (b) purchase or otherwise acquire, or lease, in whole or in part, any pipeline or abandoned pipeline from any person; or

  • (c) if it is authorized to construct or operate a pipeline or if it owns an abandoned pipeline, amalgamate with any other company.

• Marginal note:Definition of pipeline

  (2) For the purposes of paragraph (1)(b), pipeline includes a pipeline as defined in section 2 or any other pipeline.

Certificates

Marginal note:Application for certificate

• 182 (1) A company that submits to the Regulator an application for a certificate in respect of a pipeline must file a map with it that includes any details that the Commission may require and shows the general location of the pipeline and any plans, specifications and other information that the Commission may require.

• Marginal note:Notice to provincial attorneys general

  (2) The company must file a copy of the application and map with the attorney general of each province to which the application relates, and the Commission must require that notice of the application be given by publication in newspapers or otherwise.

Marginal note:Report

• 183 (1) If the Commission considers that an application for a certificate in respect of a pipeline is complete, it must prepare and submit to the Minister, and make public, a report setting out

  • (a) its recommendation as to whether or not the certificate should be issued for all or any part of the pipeline, taking into account whether the pipeline is and will be required by the present and future public convenience and necessity, and the reasons for that recommendation; and

  • (b) regardless of the recommendation that the Commission makes, all the conditions that it considers necessary or in the public interest to which the certificate would be subject if the Governor in Council were to direct that the certificate be issued.

• Marginal note:Factors to consider

  (2) The Commission must make its recommendation taking into account — in light of, among other things, any Indigenous knowledge that has been provided to the Commission and scientific information and data — all considerations that appear to it to be relevant and directly related to the pipeline, including

  • (a) the environmental effects, including any cumulative environmental effects;

  • (b) the safety and security of persons and the protection of property and the environment;

  • (c) the health, social and economic effects, including with respect to the intersection of sex and gender with other identity factors;

  • (d) the interests and concerns of the Indigenous peoples of Canada, including with respect to their current use of lands and resources for traditional purposes;

  • (e) the effects on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982;

  • (f) the availability of oil, gas or any other commodity to the pipeline;

  • (g) the existence of actual or potential markets;

  • (h) the economic feasibility of the pipeline;

  • (i) the financial resources, financial responsibility and financial structure of the applicant, the methods of financing the pipeline and the extent to which Canadians will have an opportunity to participate in the financing, engineering and construction of the pipeline;

  • (j) the extent to which the effects of the pipeline hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change;

  • (k) any relevant assessment referred to in section 92, 93 or 95 of the Impact Assessment Act; and

  • (l) any public interest that the Commission considers may be affected by the issuance of the certificate or the dismissal of the application.

• Marginal note:Representations by the public

  (3) Any member of the public may, in a manner specified by the Commission, make representations with respect to an application for a certificate.

• Marginal note:Time limit

  (4) The report must be submitted to the Minister within the time limit specified by the Lead Commissioner. The specified time limit must be no longer than 450 days after the day on which the applicant has, in the Commission’s opinion, provided a complete application.

• Marginal note:Excluded period

  (5) In the circumstances prescribed by regulations made under section 216, the Lead Commissioner may specify that a period is to be excluded from the calculation of the time limit within which the Commission must submit the report. The Lead Commissioner must provide reasons for doing so.

• Marginal note:Extension

  (6) The Minister may, by order, grant one or more extensions of the time limit specified under subsection (4).

• Marginal note:Publication

  (7) The Commission must make public the time limit specified under subsection (4), any period that is excluded under subsection (5), the reasons for the exclusion and any extension of time granted under subsection (6).

• Marginal note:Minister’s directives

  (8) To ensure that the report is prepared and submitted in a timely manner, the Minister may, by order, direct the Lead Commissioner to

  • (a) specify under subsection (4) a time limit that is the same as the one specified by the Minister in the order;

  • (b) give an instruction under section 41, or take any measure under subsection 42(1), that is set out in the order; or

  • (c) give an instruction under section 41 that addresses a matter set out in the order.

• Marginal note:Order binding

  (9) Orders made under subsection (6) are binding on the Commission and those made under subsection (8) are binding on the Lead Commissioner.

• Marginal note:Publication

  (10) Each order made under subsection (8) must be published in the Canada Gazette within 15 days after the day on which it is made.

• Marginal note:Report is final and conclusive

  (11) Subject to sections 184 and 186, the report is final and conclusive.