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

Act current to 2019-07-01 and last amended on 2019-06-17. Previous Versions

PART 10Enforcement (continued)

Offences and Punishment (continued)

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

 [Repealed, 2009, c. 14, s. 84]

Marginal note:Orders of court

  •  (1) Where an offender has been convicted of an offence under this Act, in addition to any other punishment that may be imposed under this Act, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order having any or all of the following effects:

    • (a) prohibiting the offender from doing any act or engaging in any activity that may 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 prepare and implement a pollution prevention plan or an environmental emergency plan;

    • (d) directing the offender to carry out environmental effects monitoring in the manner established by the Minister or directing the offender to pay, in the manner prescribed by the court, an amount for the purposes of environmental effects monitoring;

    • (e) directing the offender to implement an environmental management system that meets a recognized Canadian or international standard;

    • (f) directing the offender to have an environmental audit conducted by a person of a class and at the times specified by the court and directing the offender to remedy any deficiencies revealed during the audit;

    • (f.1) directing the offender 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 the environment;

    • (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 any bond or pay any amount of money into court that will ensure compliance with any order made under this section;

    • (j) directing the offender to submit to the Minister, on application by the Minister made within three years after the date of conviction, any information with respect to the offender’s activities that the court considers appropriate and just in the circumstances;

    • (k) directing the offender 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;

    • (l) directing the offender to perform community service, subject to any reasonable conditions that may be imposed in the order;

    • (m) [Repealed, 2009, c. 14, s. 85]

    • (n) directing the offender to pay, in the manner prescribed by the court, an amount for the purposes of conducting research into the ecological use and disposal of the substance in respect of which the offence was committed or research relating to the manner of carrying out environmental effects monitoring;

    • (o) directing the offender to pay, in the manner prescribed by the court, an amount to environmental, health or other groups to assist in their work in the community where the offence was committed;

    • (p) directing the offender 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;

    • (q) requiring the offender to comply with any other conditions that the court considers appropriate in the circumstances for securing the offender’s good conduct and for deterring the offender and any other person from committing offences under this Act;

    • (r) requiring the offender to surrender to the Minister any permit or other authorization issued under this Act to the offender; and

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

  • Marginal note:Publication

    (2) If an offender fails to comply with an order made under paragraph (1)(g), the Minister may, in the manner that the court directed the offender 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)(f.1) or (k) directing an offender 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)(k) directing an offender to pay an amount to a person, other than to Her Majesty in right of Canada, and the amount is not paid without delay, the 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:Cancellation or suspension of permits, etc.

    (5) If the court makes an order under paragraph (1)(r), any permit or other authorization 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.

  • 1999, c. 33, s. 291
  • 2009, c. 14, s. 85
 
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