Bill C-32

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Any court has jurisdiction for Division 3 of Part 7 offences	(3) Where an offence arising out of a contravention of Division 3 of Part 7 is committed by a person, whether or not the person is a Canadian citizen, in an area of the sea referred to in paragraph 122(2)(f) or (g), the offence
	(a) is within the competence of and shall be tried by any court having jurisdiction in respect of similar offences committed by persons within the limits of its ordinary jurisdiction; and
	(b) shall be tried in the same manner as if it had been committed within the jurisdiction of the court before which it is tried.
Liability of directors	280. (1) Where a corporation commits an offence under this Act, any officer, director or agent 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 to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.
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) orders and directions of, and prohibitions and requirements imposed by, the Minister and enforcement officers and review officers.
Identifying owner, master, etc.	281. 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.
Proof of offence	282. (1) In any prosecution of an offence under this Act, other than an offence under section 273 if the offence is committed knowingly or under section 228 or 274, 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.
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.
Defence	283. No person shall be found guilty of an offence under this Act, other than an offence under section 273 if the offence is committed knowingly or under section 228 or 274, where the person establishes that the person exercised all due diligence to prevent its commission.
Importing substances by analysts	284. 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.
Certificate of analyst	285. (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.
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.
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.
Safety marks and prescribed documents	286. 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.
	Sentencing Criteria
Sentencing considera- tions	287. 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) an estimate of the total costs to remedy or reduce any damages caused by the commission of the offence;
	(c) whether any remedial or preventive action has been taken or proposed by or on behalf of the offender, including having in place an environmental management system that meets a recognized Canadian or international standard or a pollution prevention plan;
	(d) whether any reporting requirements under this Act or the regulations were complied with by the offender;
	(e) whether the offender was found to have committed the offence intentionally, recklessly or inadvertently;
	(f) 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;
	(g) 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;
	(h) 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
	(i) all available sanctions that are reasonable in the circumstances, with particular attention to the circumstances of aboriginal offenders.
	Discharge
Absolute or conditional discharge	288. (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).
Conditions of order	(2) Where 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, including an offence under paragraph 272(1)(c), 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.
Suspended sentence	289. (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.
Application by prosecutor	(2) Where 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, including an offence under paragraph 272(1)(c), 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.
Additional fine	290. Where an offender has been convicted of an offence under this Act, the court may, where it is satisfied that as a result of the commission of the offence the offender acquired any property, benefit or advantage or that any property, benefit or advantage accrued to the offender, order the offender to pay, despite the maximum amount of any fine that may otherwise be imposed under this Act, an additional fine in an amount equal to the court's estimation of the amount of that property, benefit or advantage.
Orders of court	291. (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;
	(g) directing the offender to publish, in the manner directed by the court, the facts relating to the conviction;
	(h) 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;
	(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 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;
	(l) directing the offender to perform community service, subject to any reasonable conditions that may be imposed in the order;
	(m) directing that the amount of any fine or other monetary award be allocated, subject to the Criminal Code and any regulations that may be made under section 278, 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;
	(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 for scholarships for students enrolled in environmental studies; and
	(q) 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.
Publication	(2) Where an offender fails to comply with an order made under paragraph (1)(g) 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.
Debt due to Her Majesty	(3) Where the court makes an order under paragraph (1)(k) 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.
Coming into force and duration of order	(4) 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.
Compensa- tion for loss of property	292. (1) Where an offender has been convicted of an offence under this Act, the court may, at the time sentence is imposed and on the application of the person aggrieved, order the offender to pay to that person an amount by way of satisfaction or compensation for loss of or damage to property suffered by that person as a result of the commission of the offence.
Enforcement	(2) Where an amount that is ordered to be paid under subsection (1) is not paid forthwith, the applicant 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.
Variation of sanctions	293. (1) Subject to subsection (2), where a court has made, in relation to an offender, an order or direction under section 288, 289 or 291, the court may, on application by the offender or the Attorney General, 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 period for which the order is to remain in force for any period, not exceeding one year, that the court considers desirable; or
	(b) decrease the period for 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.
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 such person.
Subsequent applications with leave	294. Where an application made under section 293 in respect of an offender has been heard by a court, no other application may be made under that section with respect to the offender except with leave of the court.
	Environmental Protection Alternative Measures
Definitions	295. The definitions in this section apply in sections 296 to 309.
``agree- ment'' « accord »	``agreement'' means an agreement respecting environmental protection alternative measures.
``Attorney General'' « procureur général »	``Attorney General'' means the Attorney General of Canada or an agent of the Attorney General of Canada.
``environ- mental protection alternative measures'' « mesures de rechange »	``environmental protection alternative measures'' means measures, other than judicial proceedings, that are used to deal with a person who is alleged to have committed an offence under this Act.
``person'' « personne »	``person'' includes individuals, Her Majesty in right of Canada or of a province and public bodies, bodies corporate, societies and companies.
When measures may be used	296. (1) Environmental protection alternative measures may be used to deal with a person who is alleged to have committed an offence under this Act only if it is not inconsistent with the purposes of this Act and the following conditions are met:
	(a) the measures are part of a program of environmental protection alternative measures authorized by the Attorney General, after consultation with the Minister;
	(b) the offence alleged to have been committed is an offence under this Act, except an offence under
	(i) paragraph 272(1)(a) or (b), in respect of subsection 16(4), 81(1), (2), (3) or (4), 82(1) or (2), 84(2) or 96(4), section 99, subsection 106(1), (2), (3) or (4), 107(1) or (2), 109(1) or (2), 119(1), 148(1), 202(4) or 213(4) or section 227 or 228,
	(ii) paragraph 272(1)(c) or (d),
	(iii) subsection 273(1), if the offence is committed knowingly, or
	(iv) subsection 274(1) or (2);
	(c) an information has been laid in respect of the offence;
	(d) the Attorney General, after consulting with the Minister, is satisfied that they 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 the environment and of human life and health and other interests of society,
	(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;
	(e) the person has been advised of the right to be represented by counsel;

Bill C-32

Sentencing Criteria

Discharge

Environmental Protection Alternative Measures