Marginal note:Production of documents and samples

• 47. (1) The Minister may, for the purposes of this Act, by registered letter or by a demand served personally, require any Canadian, or any permit holder, who is in Canada or the Antarctic, within any reasonable time and in any reasonable manner that may be stipulated in the letter or demand,

  • (a) to produce at a place specified by the Minister any sample taken in the Antarctic or any document; or

  • (b) to conduct any tests in the Antarctic or take any measurements or samples there.

• Marginal note:Compliance

  (2) A person who is required to do anything under subsection (1) shall, despite any other law to the contrary, comply with the requirement.

OBSTRUCTION AND FALSE INFORMATION

Marginal note:Obstruction

48. No person in Canada, and no Canadian or permit holder in the Antarctic, shall obstruct an enforcement officer, inspector or analyst or hinder any of them in carrying out their functions under this Act.

Marginal note:False or misleading information, etc.

49. No person in Canada, and no Canadian or permit holder in the Antarctic, shall, with respect to any matter related to this Act, knowingly or 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:Contravention of Act and regulations

• 50. (1) Every person or Canadian vessel commits an offence if the person or vessel contravenes

  • (a) a provision of this Act or the regulations;

  • (b) an obligation or a prohibition arising from this Act or the regulations, including one arising from a condition of a permit;

  • (c) an order or a direction made under this Act; or

  • (d) an order, direction or decision of a court made under this Act.

• Marginal note:Penalties

  (2) Every person or Canadian vessel 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 $1,000,000 or to imprisonment for a term of not more than three years, or to both, and

    • (ii) for a second offence, to a fine of 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 more than $300,000 or to imprisonment for a term of not more than six months, or to both, and

    • (ii) for a second offence, to a fine of not more than $600,000 or to imprisonment for a term of not more than one year, or to both.

Marginal note:Liability of director or officer of corporation

• 51. (1) If a corporation commits an offence under this Act, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in 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 in respect of the offence committed by the corporation, whether or not the corporation has been prosecuted.

• Marginal note:Duties of directors

  (2) 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; and

  • (b) any orders and directions of, or prohibitions and requirements imposed by, any court, the Minister, enforcement officers, inspectors and analysts.

Marginal note:Liability of master

• 52. (1) If a Canadian vessel commits an offence under this Act, the master of the vessel is a party to and guilty of an offence, and is liable on conviction to the penalty provided for by this Act in respect of the offence committed by the vessel, whether or not the vessel has been prosecuted, if the master directed, authorized, assented to, acquiesced in or participated in the commission of the offence.

• Marginal note:Duties of masters

  (2) Every master of a Canadian vessel shall take all reasonable care to ensure that the vessel complies with

  • (a) this Act and the regulations; and

  • (b) orders and directions of, or prohibitions and requirements imposed by, any court, the Minister, enforcement officers, inspectors and analysts.

Marginal note:Continuing offence

53. If an offence under this Act is committed or continued on more than one day, the person or Canadian vessel that committed the offence is liable to be convicted for a separate offence for each day on which it is committed or continued.

Marginal note:Identifying authorized representative, master, etc.

54. The authorized representative or master of a Canadian vessel or the registered owner or pilot in command of a Canadian aircraft may be charged with an offence under this Act as authorized representative, master, registered owner or pilot in command of the vessel or aircraft if it is adequately identified, and no such charge is invalid by reason only that it does not name the authorized representative, master, registered owner or pilot in command.

Marginal note:Due diligence

• 55. (1) No person may be found guilty of an offence under this Act if it is established that the person exercised all due diligence to comply with this Act or to prevent the commission of the offence.

• Marginal note:Exception

  (2) Subsection (1) does not apply to an offence relating to

  • (a) a contravention of paragraph 12(1)(f) or (g);

  • (b) a contravention of section 48; or

  • (c) a contravention of section 49 committed knowingly.

Marginal note:No proceedings without consent

56. No proceedings in respect of an offence under this Act may be instituted except by or with the consent of the Attorney General of Canada.

Marginal note:Limitation period

• 57. (1) Proceedings by way of summary conviction in respect of an offence under this Act may be instituted at any time within, but not later than, two years after the day on which the Minister became aware of the subject-matter of the proceedings.

• Marginal note:Minister’s certificate

  (2) A document purporting to have been issued by the Minister, certifying the day on which the Minister became aware of the subject-matter of any proceedings, must be received in evidence and, in the absence of any evidence to the contrary, must be considered as proof of that fact without proof of the signature or of the official character of the person appearing to have signed the document and without further proof.

Marginal note:Documents admissible in evidence

• 58. (1) A document made, given or issued under this Act and appearing to be signed by an analyst is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the document without proof of the signature or official character of the person appearing to have signed the document.

• Marginal note:Attendance of analyst

  (2) The party against whom the document is produced may, with leave of the court, require the attendance of the analyst who signed it.

• Marginal note:Notice

  (3) No document referred to in subsection (1) may 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 document.

Marginal note:Injunction

• 59. (1) If, on the application of the Minister, it appears to a court of competent jurisdiction that a person or Canadian vessel in Canada, or a Canadian, Canadian vessel or permit holder in the Antarctic, has done, 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 or vessel named in the application

  • (a) to refrain from doing any act or thing that, in the opinion of the court, may constitute or be directed toward the commission of an offence under this Act; or

  • (b) to do any act or thing that, in the opinion of the court, may prevent the commission of an offence under this Act.

• Marginal note:Notice

  (2) No injunction may be issued under subsection (1) unless 48 hours notice is given to the party or parties named in the application or the urgency of the situation is such that service of notice would not be in the public interest.

Marginal note:Proof of offence

• 60. (1) In any prosecution of an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or prosecuted for the offence.

• Marginal note:Proof of offence

  (2) In any prosecution of the master of a Canadian vessel or the pilot in command of a Canadian aircraft for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by a crew member or other person on board the vessel or aircraft, whether or not the crew member or other person is identified or prosecuted for the offence.

Marginal note:Additional fine

61. If a person is convicted of an offence and the court is satisfied that monetary benefits accrued to the person as a result of the commission of the offence, the court may order the person to pay an additional fine in an amount equal to the court’s estimation of the amount of the monetary benefits, which additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.

Marginal note:Importing substances by analysts

62. 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:Sentencing considerations

63. In addition to the principles set out in sections 718 to 718.2 of the Criminal Code and any other principles it is required to consider, a court that imposes a sentence must take the following factors into account:

• (a) the unique characteristics and global importance of the Antarctic environment and dependent and associated ecosystems;

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

• (c) an estimate of the total costs to remedy or reduce any damages caused by the commission of the offence;

• (d) whether any remedial or preventive action has been taken or proposed by or on behalf of the offender;

• (e) whether any reporting requirements under this Act or the regulations were complied with by the offender;

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

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

• (h) 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;

• (i) any evidence from which the court may reasonably conclude that the offender has a history of non-compliance with legislation designed to prevent or minimize harm to the environment; and

• (j) all available sanctions that are reasonable in the circumstances.

Marginal note:Absolute or conditional discharge

• 64. (1) If 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 66(1)(a) to (n).

• 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.

Marginal note:Suspended sentence

• 65. (1) If 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 66.

• 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 66, 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.

Marginal note:Orders of court

• 66. (1) If 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 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;

  • (d) 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;

  • (e) directing the offender to publish, in the manner directed by the court, the facts relating to the conviction;

  • (f) directing the offender to notify, at the offender’s own cost and in the manner directed by the court, any person aggrieved or affected by the offender’s conduct of the facts relating to the conviction;

  • (g) 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;

  • (h) 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;

  • (i) directing the offender to compensate the Minister, in whole or in part, for the cost of any remedial or preventive action taken by or caused to be taken on behalf of the Minister as a result of the act or omission that constituted the offence;

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

  • (k) directing that the amount of any fine be allocated, subject to the Criminal Code, in accordance with any directions of the court that are made on the basis of the harm or risk of harm caused by the commission of the offence;

  • (l) directing the offender to pay, in the manner prescribed by the court, an amount for the purposes of conducting research with respect to the Antarctic;

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

  • (n) requiring the offender to comply with any other reasonable conditions that the court considers appropriate and just in the circumstances for securing the offender’s good conduct and for preventing the offender from repeating the same offence or committing other offences.

• Marginal note:Publication

  (2) If an offender fails to comply with an order made under paragraph (1)(e) directing the publication of the facts relating to the offence, the Minister may publish the facts in compliance with the order 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)(i) directing an offender to pay costs or the Minister incurs publication costs under subsection (2), the costs constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.

Marginal note:Variation of sanctions

• 67. (1) Subject to subsection (2), if a court has made, in relation to an offender, an order or direction under section 64, 65 or 66, the court may, on application by the offender or the Attorney General of Canada, require the offender to appear before it and, after hearing the offender and the Attorney General, vary the order in one or any combination of the following ways that is applicable and, in the opinion of the court, is rendered desirable by a change in the circumstances of the offender since the order was made:

  • (a) make changes in the order or the conditions specified in it or extend the time during which the order is to remain in force for any period, not exceeding one year, that the court considers desirable; or

  • (b) decrease the time during which the order is to remain in force or relieve the offender, either absolutely or partially or for any period that the court considers desirable, of compliance with any condition that is specified in the order.

• Marginal note:Notice

  (2) Before making an 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.