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Bill C-42

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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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

Subsequent applications with leave

68. If an application made under section 67 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.

DISCLOSURE OF INFORMATION

Purposes for which information may be disclosed

69. (1) Information obtained in the administration of this Act may be disclosed

    (a) as may be necessary for the purposes of the administration or enforcement of this Act;

    (b) in order to notify other Parties to the Protocol

      (i) of the number and nature of permits issued under this Act, including their conditions,

      (ii) of any environmental emergency that has been discovered in the Antarctic or of any information relevant to a potential environmental risk in the Antarctic, and

      (iii) of an emergency in the Antarctic referred to in section 19 and any activities undertaken in relation to that emergency by a Canadian or other person on a Canadian expedition, a Canadian vessel or a Canadian aircraft;

    (c) in order to make publicly available annual reports on the steps taken by Canada to implement the Protocol, including administrative actions, enforcement measures and the preparation and implementation of emergency plans and waste management plans;

    (d) in order to make the following publicly available:

      (i) an initial environmental evaluation,

      (ii) any significant information obtained from procedures put in place to assess and verify the impact of an activity that has been the subject of an initial or comprehensive environmental evaluation, and any action taken in relation to that information, and

      (iii) a draft comprehensive environmental evaluation, any comments received on the draft, the final comprehensive environmental evaluation, notice of any decision relating to the final evaluation and any evaluation of the significance of the predicted impacts in relation to the proposed activity;

    (e) under an agreement or arrangement between the Government of Canada or any of its institutions and any other government in Canada, the government of a foreign state or an international organization or any of its institutions, or between the Minister and any other minister of the Crown in right of Canada, if

      (i) the purpose of the agreement or arrangement is the administration or enforcement of a law, and

      (ii) the government, international organization, institution or other minister undertakes to keep the information confidential; or

    (f) under an agreement or arrangement between the Government of Canada and the government of a foreign state or an international organization, if the government or organization undertakes to keep the information confidential.

Disclosure of personal information

(2) Personal information as defined in section 3 of the Privacy Act may not be disclosed under subsection (1) unless

    (a) the disclosure is in the interest of public health, public safety or the protection of the environment; and

    (b) the public interest in the disclosure clearly outweighs in importance any damage to the privacy, reputation or human dignity of any individual that may result from the disclosure.

COMING INTO FORCE

Order

70. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.

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