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Canadian Environmental Protection Act, 1999 (S.C. 1999, c. 33)

Act current to 2022-11-16 and last amended on 2021-05-01. Previous Versions

PART 10Enforcement (continued)

Offences and Punishment (continued)

Marginal note:Duties of directors and officers

  •  (1) 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, other than Division 3 of Part 7 and regulations made under that Division; and

    • (b) orders and directions of, and prohibitions and requirements imposed by, the Minister, enforcement officers and review officers, other than those issued or imposed in connection with obligations or prohibitions under that Division or regulations made under that Division.

  • Marginal note:Duties of directors and officers — Division 3 of Part 7

    (2) Every director and officer of a corporation who is in a position to direct or influence the corporation’s policies or activities in respect of its obligation to comply with Division 3 of Part 7, regulations made under that Division, and orders and directions of, and prohibitions and requirements imposed by, the Minister, enforcement officers and review officers in connection with obligations or prohibitions under that Division or those regulations, shall take all reasonable care to ensure that the corporation so complies.

  • Marginal note:Liability of directors and officers — Division 3 of Part 7

    (3) If a corporation commits an offence arising out of a contravention of Division 3 of Part 7, a regulation made under that Division or an order or direction of, or prohibition or requirement imposed by, the Minister, an enforcement officer or a review officer in connection with an obligation or prohibition under that Division or a regulation made under that Division, every director and officer of the corporation 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 to the penalty provided 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.

  • 2005, c. 23, s. 41
  • 2009, c. 14, s. 74

Marginal note:Duties of masters and chief engineers

  •  (1) The master and the chief engineer of a ship shall take all reasonable care to ensure that the ship complies with

    • (a) Division 3 of Part 7 and regulations made under that Division; and

    • (b) orders and directions of, and prohibitions and requirements imposed by, the Minister, enforcement officers and review officers in connection with obligations or prohibitions under that Division or those regulations.

  • Marginal note:Liability of master and chief engineer

    (2) If a ship commits an offence arising out of a contravention of Division 3 of Part 7, a regulation made under that Division or an order or direction of, or prohibition or requirement imposed by, the Minister, an enforcement officer or a review officer in connection with an obligation or prohibition under that Division or a regulation made under that Division, the master and the chief engineer of the ship are a party to and guilty of the offence, and are liable to the penalty provided for by this Act for an individual who commits an offence under subsection 272(1), whether or not the ship has been prosecuted or convicted.

  • 2005, c. 23, s. 41
  • 2009, c. 14, s. 75

Marginal note:Duties of ship owners

  •  (1) Every owner of a ship — and, if the owner is a corporation, every director and officer of the corporation who is in a position to direct or influence its policies or activities relating to conduct prohibited by Division 3 of Part 7 — shall take all reasonable care to ensure that the ship complies, and all persons on board the ship comply, with

    • (a) Division 3 of Part 7 and regulations made under that Division; and

    • (b) orders and directions of, and prohibitions and requirements imposed by, the Minister, enforcement officers and review officers in connection with obligations or prohibitions under that Division or those regulations.

  • Marginal note:Liability of ship’s owner — individual

    (2) If a ship commits an offence arising out of a contravention of Division 3 of Part 7, a regulation made under that Division or an order or direction of, or prohibition or requirement imposed by, the Minister, an enforcement officer or a review officer in connection with an obligation or prohibition under that Division or a regulation made under that Division and the owner of the ship, other than an owner that is a corporation, directed, authorized, assented to, acquiesced in or participated in the commission of the offence, the owner is a party to and guilty of the offence and is liable to the penalty provided by this Act for an individual who commits an offence under subsection 272(1), whether or not the ship has been prosecuted or convicted.

  • Marginal note:Liability of directors and officers of corporate ship owners

    (3) If a ship commits an offence arising out of a contravention of Division 3 of Part 7, a regulation made under that Division or an order or direction of, or prohibition or requirement imposed by, the Minister, an enforcement officer or a review officer in connection with an obligation or prohibition under that Division or a regulation made under that Division, every director or officer of a corporation that is an owner of the ship 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 to penalty provided by this Act for an individual who commits an offence under subsection 272(1), whether or not the ship has been prosecuted or convicted.

  • 2005, c. 23, s. 41
  • 2009, c. 14, s. 76

Marginal note:For greater certainty

 For greater certainty, section 283 applies to a person who is a party to an offence by reason of subsection 280.1(3), 280.2(2) or 280.3(2) or (3).

  • 2005, c. 23, s. 41
  • 2009, c. 14, s. 76

Marginal note:Direction binds ship

 For the purpose of prosecuting a ship for contravening a direction made under section 225.1, any direction made under that section that is given to the master or a crew member of the ship binds the ship as though it had been given to the ship.

  • 2005, c. 23, s. 41
  • 2009, c. 14, s. 76

Marginal note:Identifying owner, master, etc.

 The owner or master of a ship, the owner or pilot in command of an aircraft or the owner or person in charge of any platform or other structure may be charged with an offence arising out of a contravention of Division 3 of Part 7 as owner, master, pilot in command or person in charge, as the case may be, of the ship, aircraft, platform or structure if it is adequately identified, and no such charge is invalid by reason only that it does not name the owner, master, pilot in command or person in charge, as the case may be, of the ship, aircraft, platform or structure.

Marginal note:Proceedings against ships

  •  (1) Subject to subsection (2), the provisions of this Act or the Criminal Code relating to indictable or summary conviction offences that apply to persons apply also to ships, with any modifications that the circumstances require.

  • Marginal note:Service on ship

    (2) If a ship is charged with having committed an offence under this Act, the summons may be served by leaving it with the owner, master or any officer of the ship or by posting the summons on some conspicuous part of the ship.

  • Marginal note:Appearance at trial

    (3) If a ship is charged with having committed an offence under this Act, the ship may appear by counsel or representative. Despite the Criminal Code, if the ship does not so appear, a court may, on proof of service of the summons, proceed to hold the trial.

  • 2005, c. 23, s. 42
  • 2009, c. 14, s. 77

Marginal note:Proof of offence

  •  (1) In any prosecution of an offence under this Act, other than an offence under paragraph 272(1)(k) or (l) or an offence of contravening section 228 or an offence under 274, it is sufficient proof of the offence to establish that it was committed by an employee, agent or mandatary of the accused, whether or not the employee, agent or mandatary is identified or prosecuted for the offence.

  • Marginal note:Proof of offence

    (2) In any prosecution of the master of a ship, the pilot in command of an aircraft or the owner or person in charge of any platform or other structure for an offence arising out of a contravention of Division 3 of Part 7, it is sufficient proof of the offence to establish that it was committed by a crew member or other person on board the ship, aircraft, platform or structure, whether or not the crew member or other person is identified or prosecuted for the offence.

  • 1999, c. 33, s. 282
  • 2009, c. 14, s. 78

Marginal note:Defence

 No person shall be found guilty of an offence under this Act, other than an offence of contravening paragraph 228(a) or knowingly contravening paragraph 228(b), an offence under paragraph 272(1)(k) or (l) or an offence under section 274, if the person establishes that the person exercised all due diligence to prevent its commission.

  • 1999, c. 33, s. 283
  • 2009, c. 14, s. 79

Marginal note:Importing substances by analysts

 Despite any other provision of this Act or the regulations, the Minister may, subject to any reasonable condition specified by the Minister, authorize in writing an analyst to import, possess and use a substance for the purpose of conducting measurements, tests and research with respect to the substance.

Marginal note:Certificate of analyst

  •  (1) Subject to subsections (2) and (3), a certificate of an analyst stating that the analyst has analysed or examined a substance or product and stating the result of the analysis or examination is admissible in evidence in any prosecution for an offence under this Act and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate.

  • Marginal note:Attendance of analyst

    (2) The party against whom a certificate of an analyst is produced may, with leave of the court, require the attendance of the analyst for the purposes of cross-examination.

  • Marginal note:Notice

    (3) No certificate of an analyst shall 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 certificate.

Marginal note:Safety marks and prescribed documents

 In any prosecution for an offence under this Act, evidence that a means of containment or transport bore a safety mark or was accompanied by a prescribed document is, in the absence of evidence to the contrary, proof of the information shown or indicated by the safety mark or contained in the prescribed document.

Marginal note:Regulations

 The Governor in Council may, by regulation, designate provisions of regulations made under this Act for the purposes of paragraph 272(1)(h) and subsection 272.2(1) and paragraph 272.4(1)(b).

  • 2009, c. 14, s. 80

Sentencing

Marginal note:Fundamental purpose of sentencing

 The fundamental purpose of sentencing for offences under this Act is to contribute, in light of the significant and many threats to the environment and to human health and to the importance of a healthy environment to the well-being of Canadians, to respect for the law protecting the environment and human health 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 or harms or creates a risk of harm to human health; and

  • (c) to reinforce the “polluter pays” principle by ensuring that offenders are held responsible for effective clean-up and environmental restoration.

  • 1999, c. 33, s. 287
  • 2009, c. 14, s. 81

Marginal note:Sentencing principles

  •  (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 or environmental quality;

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

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

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

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

    • (f) the offender failed to take reasonable steps to prevent the commission of the offence despite having the financial means to do so;

    • (g) 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;

    • (h) the offender committed the offence despite having been warned by an enforcement officer of the circumstances that subsequently became the subject of the offence;

    • (i) the offender has a history of non-compliance with federal or provincial legislation that relates to environmental or wildlife conservation or protection; and

    • (j) 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), (b) and (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 shall give reasons for that decision.

  • 2009, c. 14, s. 81

Discharge

Marginal note:Absolute or conditional discharge

  •  (1) Where an offender has pleaded guilty to or been found guilty of an offence, the court may, instead of convicting the offender, by order direct that the offender be discharged absolutely or on conditions having any or all of the effects described in paragraphs 291(1)(a) to (q).

  • Marginal note:Conditions of order

    (2) If an order is made under subsection (1) and the offender contravenes or fails to comply with it, or is convicted of an offence under this Act, the prosecutor may apply to the court to revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time the order was made.

  • 1999, c. 33, s. 288
  • 2009, c. 14, s. 82

Marginal note:Suspended sentence

  •  (1) Where an offender is convicted of an offence under this Act, the court may suspend the passing of sentence and may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order under section 291.

  • Marginal note:Application by prosecutor

    (2) If the passing of sentence has been suspended under subsection (1) and the offender contravenes or fails to comply with an order made under section 291, or is convicted of an offence under this Act, the prosecutor may apply to the court to impose any sentence that could have been imposed if the passing of sentence had not been suspended.

  • 1999, c. 33, s. 289
  • 2009, c. 14, s. 83
 
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