An Act to amend the Migratory Birds Convention Act, 1994 and the Canadian Environmental Protection Act, 1999 (S.C. 2005, c. 23)
Full Document:
Assented to 2005-05-19
1994, c. 22MIGRATORY BIRDS CONVENTION ACT, 1994
8. (1) Subsection 12(1) of the Act is amended by adding the following after paragraph (h):
(h.1) respecting the conditions and circumstances under which migratory birds may be killed, captured, injured, taken or disturbed, or nests may be damaged, destroyed, removed or disturbed;
(2) Subsection 12(1) of the Act is amended by adding the following after paragraph (i):
(i.1) respecting documents, records and data that any person or vessel or class of persons or vessels is required to keep or provide under this Act;
(i.2) excluding from the application of any provision of this Act or the regulations a military vessel, a naval auxiliary vessel or a vessel that is owned or operated by a state while it is being used only on government non-commercial service;
(3) Subsection 12(1) of the Act is amended by striking out the word “and” at the end of paragraph (j) and by adding the following after paragraph (j):
(j.1) defining, for the purposes of this Act, any word or expression that is used in this Act and is not defined; and
9. (1) Subsections 13(1) and (2) of the Act are replaced by the following:
Marginal note:Contravention of Act or regulations
13. (1) A person or vessel commits an offence if the person or vessel contravenes
(a) a provision of this Act or the regulations;
(b) an obligation or prohibition arising from this Act or the regulations;
(c) an order or direction made under this Act; or
(d) an order, direction or decision of a court made under this Act.
Marginal note:Penalties
(1.1) Every person or vessel that commits an offence is liable
(a) on conviction on indictment, 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
(b) on summary conviction, to a fine of not more than $300,000 or to imprisonment for a term of not more than six months, or to both.
Marginal note:Vessel of 5,000 tonnes deadweight or over
(1.11) In the case of an offence under section 5.1 that is committed by a vessel of 5,000 tonnes deadweight or over,
(a) the fine imposed under paragraph (1.1)(a) shall not be less than $500,000; and
(b) the fine imposed under paragraph (1.1)(b) shall not be less than $100,000.
Marginal note:Parties to offence
(1.2) 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 the offence, and is liable on conviction to the penalty provided for by this Act, whether or not the corporation is prosecuted for the offence.
Marginal note:Proof of offence — corporation
(1.3) In a prosecution of a corporation for an offence under this Act, other than an offence under paragraph 5.2(a), (c) or (d) or section 5.4 or 5.5, 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 — vessel
(1.4) In a prosecution of a vessel for an offence under this Act, other than an offence under paragraph 5.2(a), (c) or (d), it is sufficient proof of the offence to establish that it was committed by a person on board the vessel, whether or not the person is identified or prosecuted for the offence.
Marginal note:Directions or orders
(1.5) For the purpose of prosecuting a vessel for contravening a direction or order given under this Act, a direction or order given to the master or a crew member is deemed to have been given to the vessel.
Marginal note:Proof of offence
(1.6) In a prosecution of a master or chief engineer of a vessel for an offence under this Act, other than an offence under paragraph 5.2(a), (c) or (d) or section 5.3, 5.4 or 5.5, it is sufficient proof of the offence to establish that it was committed by a person on board the vessel, whether or not the person is identified or prosecuted for the offence.
Marginal note:Proof of offence
(1.7) In a prosecution of an offence under section 5.4, it is sufficient proof of the offence to establish that a substance was deposited by the vessel contrary to section 5.1.
Marginal note:Due diligence
(1.8) A person or vessel that establishes that they exercised due diligence to prevent the commission of an offence under this Act, other than an offence under paragraph 5.2(a), (c) or (d) or section 5.3, shall not be found guilty of the offence.
Marginal note:Subsequent offences
(2) If a person or vessel is convicted of an offence under this Act a second or subsequent time, the amount of the fine for the subsequent offence may be double the amount set out in subsection (1.1).
(2) Subsection 13(3) of the English version of the Act is replaced by the following:
Marginal note:Continuing offence
(3) A person or vessel that commits or continues an offence on more than one day is liable to be convicted for a separate offence for each day on which the offence is committed or continued.
(3) Subsection 13(5) of the Act is replaced by the following:
Marginal note:Sentencing considerations
(4.1) A court that imposes a sentence shall take the following factors into account, in addition to any other principles that it is required to consider:
(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 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 this Act or the regulations; and
(f) all available sanctions that are reasonable in the circumstances, with particular attention to the circumstances of aboriginal offenders.
Marginal note:Additional fine
(5) If a person or vessel is convicted of an offence and the court is satisfied that, as a result of the commission of the offence, a monetary benefit accrued to the person or to an owner or operator of the vessel, or another person incurred a monetary loss,
(a) the court may order the offender to pay an additional fine in an amount equal to the court’s estimate of the amount of the monetary benefit or loss; and
(b) the additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.
Marginal note:Application of fines
(6) All fines received by the Receiver General in respect of the commission of an offence under this Act shall be received for the special purpose of protecting and conserving migratory birds or the environment and credited to the Environmental Damages Fund, an account in the accounts of Canada.
10. Subsection 14(1) of the English version of the Act is replaced by the following:
Marginal note:Forfeiture
14. (1) If a person or vessel 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.
11. Section 15 of the English version of the Act is replaced by the following:
Marginal note:Retention or sale
15. If a fine is imposed on a person or vessel 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.
12. (1) The portion of section 16 of the Act before paragraph (a) is replaced by the following:
Marginal note:Court order
16. (1) If a person or vessel 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 containing one or more of the following prohibitions, directions or requirements:
(2) Paragraphs 16(1)(a) and (b) of the English version of the Act are replaced by the following:
(a) prohibiting the offender 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 offender to take any action the court considers appropriate to remedy or avoid any harm to any migratory bird or nest that resulted or may result from the commission of the offence;
(3) Subsection 16(1) of the Act is amended by adding the following after paragraph (b):
(b.1) directing the offender to have an environmental audit conducted by a person of a class specified by the court at the times specified by the court, and directing the offender to remedy any deficiencies revealed by the audit;
(4) Paragraphs 16(1)(c) and (d) of the English version of the Act are replaced by the following:
(c) directing the offender to publish, in a manner the court considers appropriate, the facts relating to the commission of the offence;
(d) directing the offender to pay the Minister or the government of a province compensation, in whole or in part, for the cost of any remedial or preventive action taken by or on behalf of the Minister or that government as a result of the commission of the offence;
(5) Subsection 16(1) of the Act is amended by adding the following after paragraph (d):
(d.1) directing the offender to pay, in a manner specified by the court, an amount to enable research to be conducted into the protection of the migratory bird populations in respect of which the offence was committed;
(d.2) directing the offender to pay, in a manner specified by the court, an amount to an educational institution for scholarships for students enrolled in environmental studies;
(6) Paragraphs 16(1)(e) to (h) of the English version of the Act are replaced by the following:
(e) directing the offender to perform community service in accordance with any reasonable conditions specified in the order;
(f) directing the offender to submit to the Minister, on application to the court by the Minister within three years after the conviction, any information about the offender’s activities that the court considers appropriate in the circumstances;
(g) directing the offender to post a bond or pay into court an amount of money that the court considers appropriate to ensure compliance with any prohibition, direction or requirement under this section; and
(h) requiring the offender to comply with any other conditions that the court considers appropriate to secure the offender’s good conduct and to prevent the offender from repeating the offence or committing other offences.
(7) Section 16 of the Act is amended by adding the following after subsection (1):
Marginal note:Compensation for loss of property
(2) The court may also, at the time sentence is imposed and on the application of a person who incurred a monetary loss as a result of the commission of the offence — other than an owner or operator of a vessel that committed the offence — order the offender to pay that person compensation for the loss.
Marginal note:Enforcement
(3) If the amount that is ordered to be paid is not paid immediately, the applicant may, by filing the order, enter the amount as a judgment in the superior court of the province in which the trial was held, and the judgment is enforceable against the offender as if it were a judgment rendered against them in that court in civil proceedings.
Marginal note:Variation of sanctions
(4) A court that has made an order under subsection (1) in relation to an offender 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 any of the following ways that, in the court’s opinion, is appropriate because of a change in the offender’s circumstances since the order was made:
(a) by making changes in the order or the conditions specified in it or extending the period during which it is to remain in force for a period of not more than one year; or
(b) by decreasing the period during which the order is to remain in force or relieving the offender of compliance with any condition that is specified in it, either absolutely or partially, or for a specific period.
Marginal note:Notice
(5) Before making an order under subsection (4), the court may direct that notice be given to any person that it considers to be interested and it may hear that person.
Marginal note:Subsequent applications with leave
(6) If the court hears an application under subsection (4) in respect of an offender, no other application may be made under that subsection with respect to the offender except with leave of the court.
Marginal note:1995, c. 22, s. 18 (Sch. IV, item 27)
13. Section 17 of the English version of the Act is replaced by the following:
Marginal note:Suspended sentence
17. (1) If a person or vessel 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 paragraph, make an order under section 16.
Marginal note:Imposition of sentence
(2) If the person or vessel does not comply with the order or is convicted of another offence within three years after the order was 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.
14. The Act is amended by adding the following after section 17:
Marginal note:Civil remedies not affected
17.1 (1) No civil remedy for any conduct is suspended or affected by reason only that the conduct is an offence under this Act.
Marginal note:Remedies not repealed, etc.
(2) Nothing in this Act repeals, removes or reduces any remedy available under a law in force in Canada.
Marginal note:Damages caused by vessel
(3) A court shall not order an offender to pay compensation to the Minister or a government under paragraph 16(1)(d) or to a person under subsection 16(2) in connection with damage caused by a vessel if the Minister, government or person may make a claim for compensation for the damage under the Marine Liability Act or the Arctic Waters Pollution Prevention Act.
15. The Act is amended by adding the following after section 18:
Marginal note:Documents, records and data
18.1 In a proceeding under this Act, a document, a record or data that is required to be kept under this Act or the Canada Shipping Act is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in it.
Marginal note:Analyst’s certificate
18.2 (1) In a proceeding under this Act, a certificate that appears to be signed by an analyst, that states that an article, sample or substance has been analysed or examined by the analyst and that contains the results of the analysis or examination, is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.
Marginal note:Requiring attendance of analyst
(2) The party against whom a certificate is produced may, with leave of the court, require the analyst’s attendance for the purposes of cross-examination.
Marginal note:Notice of intention to produce certificate
(3) No certificate may be admitted in evidence unless, before the trial, the party that intends to produce it gives reasonable notice of that intention, together with a copy of the certificate, to the party against whom it is intended to be produced.
Marginal note:Proof of service
(4) Service of a certificate may be proved by oral evidence given under oath by the person who claims to have served it, or by that person’s affidavit or solemn declaration.
Marginal note:Attendance for examination
(5) Despite subsection (4), the court may require the person who appears to have signed the affidavit or solemn declaration to appear before it for examination or cross-examination in respect of the issue of proof of service.
Definition of “analyst”
(6) For the purposes of this section, “analyst” means a person who is recognized by a laboratory or research centre as having the authority to perform the analysis or examination that is the subject of the certificate.
APPLICATION OF CRIMINAL LAW
Marginal note:Offences deemed committed in Canada
18.3 (1) An act or omission that is an offence under this Act — or that is committed by or against a person who is engaged in carrying out duties or functions, or exercising a power, under this Act or a person acting under their direction and control and that would be an offence under the Criminal Code if it were committed in Canada — is deemed to be committed in Canada if it is committed in the exclusive economic zone of Canada.
Marginal note:Offences deemed committed in Canada
(2) An act or omission that would be an offence under this Act if it were committed in Canada — or that is committed by or against a person who is engaged in carrying out duties or functions, or exercising a power, under this Act or a person acting under their direction and control and that would be an offence under the Criminal Code if it were committed in Canada — is deemed to be committed in Canada if it is committed at any place on the seas, other than a place that is in the territorial sea or internal waters of a state other than Canada, in the course of hot pursuit of a vessel that commenced while the vessel was in Canadian waters or in the exclusive economic zone of Canada.
Marginal note:Exercising powers of arrest, entry, etc.
(3) Every power — including arrest, entry, search and seizure — that may be exercised in Canada in respect of an offence under this Act or under the Criminal Code may, in respect of an offence referred to in subsection (1), be exercised in the exclusive economic zone of Canada and, in respect of an offence referred to in subsection (2), be exercised at any place on the seas other than a place that is in the territorial sea or internal waters of a state other than Canada.
Marginal note:Consent of Attorney General of Canada
(4) The powers referred to in subsection (3) may not be exercised in relation to a foreign vessel, or to a foreign national on board a foreign vessel, without the consent of the Attorney General of Canada.
Marginal note:Jurisdiction of justice or judge
(5) A justice, as defined in section 2 of the Criminal Code, or a judge in any territorial division in Canada has jurisdiction to authorize an arrest, entry, search or seizure in connection with an offence referred to in subsection (1) or (2) as if the offence had been committed in that territorial division.
Marginal note:Consent of Attorney General of Canada
(6) A proceeding that is commenced in respect of an offence referred to in subsection (1) or (2) shall not be continued if the accused is a foreign vessel, or if the accused is a foreign national and the offence was committed while the accused was on board a foreign vessel, unless the Attorney General of Canada consents to the continuation no later than eight days after the proceeding is commenced.
Marginal note:Jurisdiction of courts
18.4 A proceeding in respect of an offence referred to in subsection 18.3(1) or (2) may be commenced in any territorial division in Canada whether or not the accused is in Canada, and the accused may be tried and punished for that offence as if the offence had been committed in that territorial division.
Marginal note:Proceedings against vessels
18.5 (1) The provisions of this Act and the Criminal Code relating to indictable or summary conviction offences that apply to persons apply also to vessels, with any modifications that the circumstances require.
Marginal note:Service on vessel
(2) If a vessel is charged with an offence under this Act, the summons may be served on the vessel by leaving it with the master or any officer of the vessel or by posting it on a conspicuous part of the vessel.
Marginal note:Appearance at trial
(3) The vessel shall appear by counsel or a representative. If the vessel does not appear, a court may, on proof of service of the summons, proceed to hold the trial in the absence of the vessel.
Marginal note:Proceedings on indictment
(4) For greater certainty, subsection (3) applies to a trial on an indictment.
Page Details
- Date modified: