Species at Risk Act (S.C. 2002, c. 29)

Marginal note:Officers, etc., of corporations

98 If a corporation commits an offence, any officer, director or agent or mandatary of the corporation who directed, authorized, assented to, or 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 punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.

Marginal note:Offences by employees or agents or mandataries

99 In any prosecution for an offence, the accused may be convicted of the offence if it is established that it was committed by an employee or an agent or mandatary of the accused, whether or not the employee, agent or mandatary has been prosecuted for the offence.

Marginal note:Due diligence

100 Due diligence is a defence in a prosecution for an offence.

Marginal note:Venue

101 A prosecution for an offence may be instituted, heard and determined in the place where the offence was committed, the subject-matter of the prosecution arose, the accused was apprehended or the accused happens to be or is carrying on business.

Marginal note:Sentencing considerations

102 A court that imposes a sentence shall take into account, in addition to any other principles that it is required to consider, the following factors:

• (a) the harm or risk of harm caused by the commission of the offence;

• (b) whether the offender was found to have committed the offence intentionally, recklessly or inadvertently;

• (c) whether the offender was found by the court to have been negligent or incompetent or to have shown a lack of concern with respect to the commission of the offence;

• (d) any property, benefit or advantage received or receivable by the offender to which, but for the commission of the offence, the offender would not have been entitled;

• (e) any evidence from which the court may reasonably conclude that the offender has a history of non-compliance with legislation designed to protect wildlife species; and

• (f) all available sanctions that are reasonable in the circumstances, with particular attention to the circumstances of aboriginal offenders.

Marginal note:Forfeiture

• 103 (1) If a person is convicted of an offence, the convicting court may, in addition to any punishment imposed, order that any seized thing by means of or in relation to which the offence was committed, or any proceeds of its disposition, be forfeited to Her Majesty.

• Marginal note:Return if no forfeiture ordered

  (2) If the convicting court does not order the forfeiture, the seized thing, or the proceeds of its disposition, must be returned to its lawful owner or the person lawfully entitled to it.

Marginal note:Retention or sale

104 If a fine is imposed on a person convicted of an offence, any seized thing, or any proceeds of its disposition, may be retained until the fine is paid or the thing may be sold in satisfaction of the fine and the proceeds applied, in whole or in part, in payment of the fine.

Marginal note:Orders of court

105 If a person is convicted of an offence, the court may, in addition to any punishment imposed and 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 person from doing any act or engaging in any activity that could, 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 harm to any wildlife species that resulted or may result from the commission of the offence;

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

• (d) directing the person to publish, in any manner that the court considers appropriate, the facts relating to the commission of the offence;

• (e) directing the person to perform community service in accordance with any conditions that the court considers reasonable;

• (f) directing the person to submit to the competent minister, on application to the court by the competent minister within three years after the conviction, any information about the activities of the person that the court considers appropriate;

• (g) directing the person to pay a competent minister or the government of a province or a territory an amount for all or any of the cost of remedial or preventive action taken, or to be taken, by or on behalf of the competent minister or that government as a result of the commission of the offence;

• (h) directing the person to pay, in the manner prescribed by the court, an amount for the purpose of conducting research into the protection of the wildlife species in respect of which the offence was committed;

• (i) directing the person to pay, in the manner prescribed by the court, an amount to an educational institution for scholarships for students enrolled in environmental studies;

• (j) directing the person to post a bond or pay to the court an amount that the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction or requirement under this section; and

• (k) requiring the person to comply with any other conditions that the court considers appropriate for securing the person’s good conduct and for preventing the person from repeating the offence or committing other offences.

Marginal note:Suspended sentence

• 106 (1) If a person is convicted of an offence and the court suspends the passing of sentence under paragraph 731(1)(a) of the Criminal Code, the court may, in addition to any probation order made under that Act, make an order containing one or more of the prohibitions, directions or requirements mentioned in section 105.

• Marginal note:Imposition of sentence

  (2) If the person does not comply with the order or is convicted of another offence, within three years after the order is made, the court may, on the application of the prosecution, impose any sentence that could have been imposed if the passing of sentence had not been suspended.

Marginal note:Limitation period

• 107 (1) Proceedings by way of summary conviction in respect of an offence may be commenced at any time within, but not later than, two years after the day on which the subject-matter of the proceedings became known to the competent minister.

• Marginal note:Competent minister’s certificate

  (2) A document appearing to have been issued by the competent minister, certifying the day on which the subject-matter of any proceedings became known to the competent minister, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is proof of the matter asserted in it.

• Marginal note:References to the competent minister

  (3) A reference to the competent minister in this section includes a provincial or territorial minister if the competent minister has delegated responsibility for the enforcement of this Act, the regulations or an emergency order in the province or territory to the provincial or territorial minister and the offence is alleged to have been committed in the province or territory.

Alternative Measures

Marginal note:When alternative measures may be used

• 108 (1) Alternative measures may be used to deal with a person who is alleged to have committed an offence, but only if it is not inconsistent with the purposes of this Act to do so and the following conditions are met:

  • (a) the measures are part of a program of alternative measures authorized by the Attorney General, after consultation with the competent minister;

  • (b) an information has been laid in respect of the offence;

  • (c) the Attorney General, after consultation with the competent minister, is satisfied that the alternative measures would be appropriate, having regard to the nature of the offence, the circumstances surrounding its commission and the following factors, namely,

    • (i) the protection of species at risk,

    • (ii) the person’s history of compliance with this Act,

    • (iii) whether the offence is a repeated occurrence,

    • (iv) any allegation that information is being or was concealed or other attempts to subvert the purposes and requirements of this Act are being or have been made, and

    • (v) whether any remedial or preventive action has been taken by or on behalf of the person in relation to the offence;

  • (d) the person applies, in accordance with regulations made under paragraph 119(a), to participate in the alternative measures after having been informed of them;

  • (e) the person and the Attorney General have concluded an agreement respecting the alternative measures within 180 days after the person has, with respect to the offence, been served with a summons, been issued an appearance notice or a release order or entered into an undertaking;

  • (f) before consenting to participate in the alternative measures, the person has been advised of the right to be represented by counsel;

  • (g) the person accepts responsibility for the act or omission that forms the basis of the offence;

  • (h) there is, in the opinion of the Attorney General, sufficient evidence to proceed with the prosecution of the offence; and

  • (i) the prosecution of the offence is not barred at law.

• Marginal note:Restriction on use

  (2) Alternative measures may not be used to deal with a person who

  • (a) denies participation or involvement in the commission of the alleged offence; or

  • (b) expresses the wish to have any charge against them dealt with by the court.

• Marginal note:Admissions not admissible in evidence

  (3) No admission, confession or statement accepting responsibility for a given act or omission made by a person as a condition of being dealt with by alternative measures is admissible in evidence against the person in any civil or criminal proceedings.

• Marginal note:Dismissal of charge

  (4) A court must dismiss a charge laid against a person in respect of an offence if alternative measures have been used to deal with the person in respect of the alleged offence and

  • (a) the court is satisfied on a balance of probabilities that the person has totally complied with the agreement; or

  • (b) the court is satisfied on a balance of probabilities that the person has partially complied with the agreement and, in the opinion of the court, the prosecution of the charge would be unfair, having regard to the circumstances and the person’s performance with respect to the agreement.

• Marginal note:No bar to proceedings

  (5) The use of alternative measures in respect of a person who is alleged to have committed an offence is not a bar to any proceedings against the person under this Act.

• Marginal note:Laying of information, etc.

  (6) This section does not prevent any person from laying an information, obtaining the issue or confirmation of any process, or proceeding with the prosecution of any offence, in accordance with law.

Marginal note:Terms and conditions in agreement

• 109 (1) An alternative measures agreement may contain any terms and conditions, including

  • (a) terms and conditions having any or all of the effects set out in section 105 or any other terms and conditions having any of the effects prescribed by regulations that the Attorney General, after consultation with the competent minister, considers appropriate; and

  • (b) terms and conditions relating to the costs associated with ensuring compliance with the agreement.

• Marginal note:Supervision of compliance

  (2) Any governmental organization may supervise compliance with the agreement.

Marginal note:Duration of agreement

110 An alternative measures agreement comes into effect on the day on which it is concluded or on any later day that is specified in the agreement and continues in effect for a period of not more than three years.

Marginal note:Filing in court for purpose of public access

• 111 (1) The Attorney General must consult the competent minister before concluding an alternative measures agreement and, subject to subsection (5), must have the agreement filed with the court in which the information was laid within 30 days after the agreement is concluded. The agreement is to be filed as part of the court record of the proceedings to which the public has access.

• Marginal note:Reports

  (2) A report relating to the administration of, and compliance with, the agreement must be filed with the same court by the Attorney General immediately after all the terms and conditions of the agreement have been complied with or the charges in respect of which the agreement was entered into have been dismissed.

• Marginal note:Third party information

  (3) Subject to subsection (4), if any of the following information is to be part of the agreement or the report, it must be set out in a schedule to the agreement or to the report:

  • (a) trade secrets of any person;

  • (b) financial, commercial, scientific or technical information that is confidential information and is treated consistently in a confidential manner by any person;

  • (c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to any person, or could reasonably be expected to prejudice the competitive position of any person; or

  • (d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of any person.

• Marginal note:Agreement on information to be in schedule

  (4) The parties to the agreement must agree on which information that is to be part of the agreement or the report is information that meets the requirements of paragraphs (3)(a) to (d).

• Marginal note:How schedule is to be kept secret

  (5) The schedule is confidential and must not be filed with the court.

• Marginal note:Prohibition of disclosure

  (6) The competent minister must not disclose any information set out in a schedule to the agreement or to the report, except as authorized by section 117 or the Access to Information Act.

Marginal note:Stay of proceedings

• 112 (1) Despite section 579 of the Criminal Code, the Attorney General must, on filing an alternative measures agreement, stay the proceedings in respect of the alleged offence, or apply to the court for an adjournment of the proceedings, for a period of not more than one year after the expiry of the agreement.

• Marginal note:Recommencement of proceedings

  (2) Proceedings stayed under subsection (1) may be recommenced without laying a new information or preferring a new indictment, as the case may be, by the Attorney General giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered. If no such notice is given within one year after the expiry of the agreement, the proceedings are deemed to have never been commenced.

Marginal note:Application to vary agreement

• 113 (1) Subject to subsections 111(2) and (3), the Attorney General may vary the terms and conditions of an alternative measures agreement on application by the person bound by the agreement and after consultation with the competent minister. The Attorney General must be of the opinion that the variation is desirable because of a material change in the circumstances since the agreement was concluded or last varied. The variation may include

  • (a) decreasing the period for which the agreement is to remain in force; and

  • (b) relieving the person of compliance with any condition that is specified in the agreement, either absolutely or partially or for any period that the Attorney General considers desirable.

• Marginal note:Filing varied agreement

  (2) An agreement that has been varied must be filed in accordance with section 111 with the court in which the original agreement was filed.