International River Improvements Act (R.S.C., 1985, c. I-20)

Short Title

Marginal note:Short title

1 This Act may be cited as the International River Improvements Act.

Interpretation

Marginal note:Definitions

2 In this Act,

boundary waters

boundary waters has the same meaning as in the Preliminary Article of the treaty relating to the boundary waters and to questions arising along the boundary between Canada and the United States signed at Washington on January 11, 1909 and set out in Schedule 1 to the International Boundary Waters Treaty Act. (eaux limitrophes)

Chief Review Officer

Chief Review Officer means the review officer appointed as Chief Review Officer under subsection 244(1) of the Canadian Environmental Protection Act, 1999 and includes any review officer designated under subsection 244(3) of that Act to perform the functions of the Chief Review Officer; (réviseur-chef)

international river

international river means water flowing from any place in Canada to any place outside Canada; (cours d’eau international)

international river improvement

international river improvement means a dam, obstruction, canal, reservoir, pipeline or other work the purpose or effect of which is

• (a) to increase, decrease or alter the natural flow of an international river, and

• (b) to interfere with, alter or affect the actual or potential use of the international river outside Canada; (ouvrage destiné à l’amélioration d’un cours d’eau international)

Minister

Minister means such member of the Queen’s Privy Council for Canada as is designated by the Governor in Council as the Minister for the purposes of this Act. (ministre)

transboundary waters

transboundary waters has the same meaning as in section 10 of the International Boundary Waters Treaty Act. (eaux transfrontalières)

Regulations

Marginal note:Regulations

3 The Governor in Council may, for the purpose of developing and utilizing the water resources of Canada in the national interest, make regulations

• (a) respecting the construction, operation and maintenance of international river improvements;

• (b) respecting the issue, cancellation and suspension of licences for the construction, operation and maintenance of international river improvements;

• (c) prescribing fees for licences issued under this Act;

• (d) respecting the exemption of international river improvements from the operation of this Act;

• (e) authorizing the conduct of inspections under this Act in respect of any improvement exempted from the operation of this Act under the authority of regulations made under paragraph (d) and setting out the purposes for which those inspections may be carried out; and

• (f) designating provisions of the regulations for the purpose of paragraph 33(1)(b).

Licences

Marginal note:Constructing, operating, etc., improvement without licence or contrary to a licence

4 Except in accordance with a licence issued under this Act, no person shall construct, operate or maintain an international river improvement.

Marginal note:Purpose

• 4.1 (1) The purpose of this section is to prevent the risk of environmental harm resulting from the permanent loss of water from Canadian ecosystems.

• Marginal note:Prohibition

  (2) No licence may be issued for the construction, operation or maintenance of an international river improvement that links waters that are neither boundary waters nor transboundary waters to an international river if the purpose or effect of the improvement is to increase the annual flow of the international river at the international boundary.

5 [Repealed, 2009, c. 14, s. 91]

6 [Repealed, 2009, c. 14, s. 91]

General

Marginal note:Exception

• 7 (1) This Act does not apply in respect of an international river improvement

  • (a) constructed under the authority of an Act of Parliament;

  • (b) situated within boundary waters; or

  • (c) constructed, operated or maintained solely for domestic, sanitary or irrigation purposes or other similar consumptive uses.

• Marginal note:Inspections permitted

  (2) Despite subsection (1), inspections may be carried out under this Act in respect of any international river improvement referred to in paragraph (1)(c) to verify that the improvement is being constructed or continues to be operated or maintained solely for domestic, sanitary or irrigation purposes or other similar consumptive uses.

Marginal note:Binding on Her Majesty

8 This Act is binding on Her Majesty in right of Canada or a province.

Marginal note:When provincial laws to apply

9 Notwithstanding anything in this Act, an international river improvement is subject to the same laws to which it would be subject if it were a river improvement within the legislative jurisdiction of the legislature of the province in which it is situated except in so far as the laws of that province are repugnant to this Act or the regulations.

Enforcement

Enforcement Officers and Analysts

Marginal note:Designation

• 10 (1) The Minister may designate as an enforcement officer or analyst for the purpose of this Act or any provision of this Act any person or member of a class of persons who, in the Minister’s opinion, is qualified to be so designated.

• Marginal note:Powers

  (2) For the purposes of this Act, an enforcement officer has all the powers of a peace officer, but the Minister may specify limits on those powers when designating the enforcement officer.

• Marginal note:Limits

  (3) The Minister may limit the powers that may be exercised by an enforcement officer or analyst under this Act.

• Marginal note:Production of certificate

  (4) The Minister must provide every enforcement officer and analyst with a certificate of designation that includes any limits under subsection (2) or (3). On entering any place, the enforcement officer or analyst must, if so requested, produce the certificate to the person in charge of the place.

Marginal note:Immunity

11 Enforcement officers and analysts are not personally liable for anything they do or omit to do in good faith under this Act.

Marginal note:Right of passage

12 While carrying out duties or functions under this Act, enforcement officers and analysts, and any persons accompanying them, may enter on and pass through or over private property without being liable for doing so and without any person having the right to object to that use of the property.

Inspections

Marginal note:Power to enter and inspect

• 13 (1) Subject to subsection (2), for the purposes of this Act, an enforcement officer may, at any reasonable time, enter and inspect any place in which the officer believes, on reasonable grounds, there is anything to which this Act applies or any document relating to its administration.

• Marginal note:Dwelling-place

  (2) An enforcement officer may not enter a dwelling-place without the occupant’s consent or a warrant issued under subsection (3).

• Marginal note:Authority to issue warrant — dwelling-places

  (3) On ex parte application, a justice may issue a warrant authorizing an enforcement officer named in the warrant to conduct an inspection of a dwelling-place, subject to any conditions specified in the warrant — and authorizing any other person named in the warrant to accompany the enforcement officer and exercise any power specified in the warrant subject to any conditions specified in the warrant — if the justice is satisfied by information on oath that

  • (a) the conditions for entry described in subsection (1) exist in relation to the dwelling-place;

  • (b) entry to the dwelling-place is necessary for any purpose relating to the administration of this Act; and

  • (c) entry to the dwelling-place has been refused or there are reasonable grounds for believing that entry will be refused.

• Marginal note:Authority to issue warrant — non-dwellings

  (4) On ex parte application, a justice may issue a warrant authorizing an enforcement officer named in the warrant to conduct an inspection of a place other than a dwelling-place, subject to any conditions specified in the warrant — and authorizing any other person named in the warrant to accompany the enforcement officer and exercise any power specified in the warrant subject to any conditions specified in the warrant — if the justice is satisfied by information on oath that

  • (a) the conditions for entry described in subsection (1) exist in relation to that place;

  • (b) entry to the place is necessary for any purpose relating to the administration of this Act;

  • (c) entry to the place has been refused, the enforcement officer was not able to enter without the use of force or the place was abandoned; and

  • (d) subject to subsection (5), all reasonable attempts were made to notify the owner, operator or person in charge of the place.

• Marginal note:Waiving notice

  (5) The justice may waive the requirement to give notice under paragraph (4)(d) if he or she is satisfied that attempts to give the notice would be unsuccessful because the owner, operator or person in charge is absent from the jurisdiction of the justice or that it is not in the public interest to give the notice.

• Marginal note:Use of force

  (6) In executing a warrant issued under subsection (3) or (4), an enforcement officer shall not use force unless its use has been specifically authorized in the warrant.

• Marginal note:Stopping and detaining conveyances

  (7) For the purposes of this Act, an enforcement officer may, at any reasonable time, direct that any conveyance be stopped — or be moved, by the route and in the manner that the officer may specify, to a place specified by the officer where an inspection can be carried out — and the officer may, for a reasonable time, detain any conveyance.

• Marginal note:Enforcement officer’s powers

  (8) In carrying out an inspection of a place under this section, an enforcement officer may, for the purposes of this Act,

  • (a) examine any thing relevant to the administration of this Act that is found in the place;

  • (b) open and examine any receptacle or package found that the officer believes on reasonable grounds contains any thing referred to in paragraph (a);

  • (c) examine any books, records, electronic data or other documents that the officer believes on reasonable grounds contain any information relevant to the administration of this Act and make copies of them or take extracts from them;

  • (d) take samples of anything relevant to the administration of this Act; and

  • (e) conduct any tests or take any measurements.

• Marginal note:Analysts

  (9) An analyst may, for the purposes of this Act, accompany an enforcement officer who is carrying out an inspection of a place under this section, and the analyst may, when accompanying the enforcement officer, enter the place and exercise any of the powers described in subsection (8).

• Marginal note:Disposition of samples

  (10) An enforcement officer or analyst may dispose of a sample taken under paragraph 8(d) in any manner that the officer or analyst considers appropriate.

• Marginal note:Operation of computer systems and copying equipment

  (11) In carrying out an inspection, an enforcement officer may

  • (a) use or cause to be used any computer system or data processing system at the place being inspected to examine any data contained in, or available to, the system;

  • (b) reproduce any record, or cause it to be reproduced from the data, in the form of a printout or other intelligible output and remove the printout or other output for examination or copying; and

  • (c) use or cause to be used any copying equipment at the place being inspected to make copies of any books, records, electronic data or other documents.

• Marginal note:Duty of person in possession or control

  (12) Every person who is in possession or control of a place being inspected under this section shall permit the enforcement officer to do anything referred to in subsection (11).

Marginal note:Production of documents and samples

• 14 (1) The Minister may, for the purposes of this Act, by registered letter or by a demand served personally, require any person, 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 or any document; or

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

• Marginal note:Compliance

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

Search and Seizure

Marginal note:Search and seizure without warrant

15 For the purpose of this Act and the regulations, an enforcement officer may exercise the powers of search and seizure provided in section 487 of the Criminal Code without a search warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would not be feasible to obtain it.

Assistance to Enforcement Officers and Analysts

Marginal note:Assistance

16 The owner or the person in charge of a place entered by an enforcement officer or analyst under this Act, and every person found in the place, shall

• (a) give the enforcement officer or analyst all reasonable assistance to enable the officer or analyst to carry out their duties or functions under this Act; and

• (b) provide the enforcement officer or analyst with any information with respect to the administration of this Act that the officer or analyst may reasonably require.

Miscellaneous Provisions

Marginal note:Documents admissible in evidence

• 16.1 (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:Custody of things seized

• 17 (1) Subject to subsection (2), if an enforcement officer seizes a thing under this Act or under a warrant issued under the Criminal Code,

  • (a) sections 489.1 and 490 of the Criminal Code apply; and

  • (b) the officer, or any person that the officer may designate, shall retain custody of the thing subject to any order made under section 490 of the Criminal Code.

• Marginal note:Forfeiture if ownership not ascertainable

  (2) If the lawful ownership of or entitlement to a seized thing cannot be ascertained within 30 days after the day on which it is seized, the thing, or any proceeds of its disposition, are forfeited to Her Majesty in right of Canada.

Marginal note:Disposition by Minister

18 Any thing that has been forfeited under this Act may be dealt with and disposed of as the Minister may direct.

Marginal note:Liability for costs

19 If a thing is seized under this Act or under a warrant issued under the Criminal Code, the person who owned the thing at the time it was seized, the person who had charge or control of the thing immediately before it was seized and the person who possessed it immediately before it was seized are jointly and severally, or solidarily, liable for all the costs of seizure, detention, maintenance and forfeiture, including any destruction or disposal costs, incurred by Her Majesty in right of Canada in relation to the thing in excess of any proceeds of its disposition, if any.

Compliance Orders

Meaning of order

20 For the purpose of sections 21 to 30, order means a compliance order issued under section 21.

Marginal note:Order

• 21 (1) Whenever, during the course of an inspection or a search, an enforcement officer has reasonable grounds to believe that any provision of this Act or the regulations has been contravened by a person who is continuing the commission of the offence, or that any of those provisions are likely to be contravened, the enforcement officer may issue a compliance order directing any person who causes or contributes to the alleged contravention, or who is likely to do so, to take any of the measures referred to in subsection (2) that are reasonable in the circumstances in order to cease or refrain from committing the alleged contravention.

• Marginal note:Specific measures

  (2) The order may specify that the person to whom the order is directed take one or more of the following measures:

  • (a) refrain from doing anything in contravention of this Act or the regulations, or do anything to comply with this Act or the regulations;

  • (b) stop or shut down any activity, work, undertaking or thing for a specified period;

  • (c) cease the operation of any activity or any part of a work, undertaking or thing until the enforcement officer is satisfied that the activity, work, undertaking or thing will be operated in accordance with this Act and the regulations;

  • (d) move any conveyance to another location;

  • (e) unload or reload the contents of any conveyance; and

  • (f) take any other measure that the enforcement officer considers necessary to facilitate compliance with the order, including

    • (i) maintaining records on any relevant matter,

    • (ii) reporting periodically to the officer, and

    • (iii) submitting to the enforcement officer any information, proposal or plan specified by the officer that sets out any action to be taken by the person with respect to the subject matter of the order.

• Marginal note:Contents of order

  (3) Subject to section 22, an order must be made in writing and must set out

  • (a) the name of the person or persons to whom the order is directed;

  • (b) the provision of this Act or the regulations that is alleged to have been or that is likely to be contravened;

  • (c) the relevant facts surrounding the alleged contravention;

  • (d) the measures to be taken;

  • (e) the time or the day when each measure is to begin or the period during which it is to be carried out;

  • (f) subject to subsection (4), the duration of the order;

  • (g) a statement that a request for a review may be made to the Chief Review Officer; and

  • (h) the period within which a request for a review may be made.

• Marginal note:Duration of order

  (4) An order may not be in force for a period of more than 180 days.

• Marginal note:Failing to file report

  (5) For the purposes of subsection (1), a person who commits an offence by failing to file a report required by this Act or the regulations is deemed to be continuing the commission of the offence each day that the report is not filed.

• Marginal note:Statutory Instruments Act

  (6) An order is not a statutory instrument for the purposes of the Statutory Instruments Act.

Marginal note:Exigent circumstances

• 22 (1) In the case of exigent circumstances, an order may be given orally on the condition that it is followed, within seven days, by a written order issued in accordance with section 21.

• Meaning of exigent circumstances

  (2) For greater certainty, exigent circumstances includes circumstances in which the delay that is necessary to issue a written order that meets the requirements of subsection 21(3) would result in danger to human life or to the environment.

Marginal note:Notice of intent

• 23 (1) Except in exigent circumstances, an enforcement officer shall, whenever practicable, before issuing an order,

  • (a) provide every person who will be subject to the order with an oral or written notice of the officer’s intention to issue it; and

  • (b) allow a reasonable opportunity in the circumstances for the person to make oral representations.

• Marginal note:Contents of notice of intent

  (2) The notice of intent to issue the order must include

  • (a) a statement of the purpose of the notice;

  • (b) a reference to the statutory authority under which the order is to be issued; and

  • (c) a statement that the party notified may make oral representations to the enforcement officer within the period stated in the notice.

Marginal note:Compliance with order

• 24 (1) A person to whom an order is directed shall, immediately on receipt of the order or a copy of it or on being directed by an enforcement officer in an order given orally under subsection 22(1), comply with the order.

• Marginal note:No bar to proceedings

  (2) The issuance of or compliance with an order in respect of a person’s alleged contravention of this Act or the regulations is not a bar to any proceedings against the person under this or any other Act in relation to the alleged contravention.

Marginal note:Intervention by enforcement officer

• 25 (1) If a person to whom an order is directed fails to take any measures specified in it, an enforcement officer may take the measures or cause them to be taken.

• Marginal note:Access to property

  (2) An enforcement officer or other person authorized or required by an enforcement officer to take measures under subsection (1) may enter and have access to any place or property and may do any reasonable thing that may be necessary in the circumstances.

• Marginal note:Personal liability

  (3) Any person, other than a person referred to in subsection 21(1), who provides assistance or advice in taking the measures specified in an order or who takes any measures authorized or required by an enforcement officer under subsection (1) is not personally liable either civilly or criminally in respect of any act or omission in the course of providing assistance or advice or taking any measures under that subsection unless it is established that the person acted in bad faith.

Marginal note:Recovery of reasonable costs and expenses by Her Majesty

• 26 (1) Her Majesty in right of Canada may recover the costs and expenses of and incidental to any measures taken under subsection 25(1) from any person who caused or contributed to the alleged contravention, to the extent of the person’s negligence in causing or contributing to the alleged contravention.

• Marginal note:Costs must have been reasonably incurred

  (2) The costs and expenses may only be recovered to the extent that they can be established to have been reasonably incurred in the circumstances.

• Marginal note:Procedure

  (3) A claim under this section may be sued for and recovered by Her Majesty in right of Canada with costs in proceedings brought or taken in the name of Her Majesty in right of Canada in any court of competent jurisdiction.

• Marginal note:Recourse or indemnity

  (4) This section does not limit or restrict any right of recourse or indemnity that a person may have against any other person.

• Marginal note:Limitation period

  (5) If events giving rise to a claim under this section occur, no proceedings in respect of the claim may be instituted more than five years after the day on which the events occur or become evident to the Minister, whichever is later.

• Marginal note:Minister’s certificate

  (6) A document purporting to have been issued by the Minister certifying the day on which the events giving rise to a claim under this section came to the knowledge of the Minister shall be received in evidence and, in the absence of any evidence to the contrary, the document is to 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:Request for review

• 27 (1) Any person to whom an order is directed may, by notice in writing given to the Chief Review Officer within 30 days after the day on which the person receives a copy of the written order or after the oral order is given, make a request to the Chief Review Officer for a review of the order.

• Marginal note:Extension of period for request

  (2) The Chief Review Officer may extend the period within which a request for a review may be made if, in his or her opinion, it is in the public interest to do so.

Marginal note:Variation or cancellation of order

• 28 (1) At any time before a notice requesting a review of an order is received by the Chief Review Officer, the enforcement officer may, after giving reasonable notice,

  • (a) amend or suspend a term or condition of the order, or add a term or condition to, or delete a term or condition from, the order;

  • (b) cancel the order;

  • (c) correct a clerical error in the order; or

  • (d) extend the duration of the order for a period of not more than 180 days less the number of days that have passed after the day on which the order was received by the person who is subject to it.

• Marginal note:Notice of intent

  (2) Except in exigent circumstances, an enforcement officer shall, whenever practicable, before exercising a power under paragraph (1)(a) or (d),

  • (a) provide every person who will be subject to the order with an oral or written notice of the officer’s intention to exercise the power; and

  • (b) allow a reasonable opportunity in the circumstances for the person to make oral representations.

• Marginal note:Contents of notice of intent

  (3) The notice of intent to exercise a power under paragraph (1)(a) must include

  • (a) a statement of the purpose of the notice;

  • (b) a reference to the statutory authority under which the power is to be exercised; and

  • (c) a statement that the party notified may make oral representations to the enforcement officer within the period stated in the notice.

Marginal note:Regulations

29 The Minister may make regulations

• (a) prescribing the form of reporting to enforcement officers under subparagraph 21(2)(f)(ii) and specifying the information required to be contained in or to accompany the report; and

• (b) of either particular or general application, respecting representations made to enforcement officers under paragraph 23(1)(b) or 28(2)(b).

Marginal note:Review

30 Sections 257 to 271 of the Canadian Environmental Protection Act, 1999 apply, with any modifications that the circumstances require, to a review requested of any order.

Obstruction and False Information

Marginal note:Obstruction

31 No person shall obstruct an enforcement officer or analyst or hinder any of them in carrying out their functions under this Act.

Marginal note:Knowingly providing false or misleading information, etc.

• 32 (1) No person shall, with respect to any matter related to this Act, knowingly

  • (a) provide any person with false or misleading information, results or samples; or

  • (b) file a document that contains false or misleading information.

• Marginal note:Negligently providing false or misleading information, etc.

  (2) No person shall, with respect to any matter related to this Act, 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:Offence

• 33 (1) Every person commits an offence who contravenes

  • (a) section 4, subsection 24(1), section 31 or subsection 32(1);

  • (b) any provision of the regulations designated by regulations made under paragraph 3(f); or

  • (c) an order made by a court under this Act.

• Marginal note:Penalty — individuals

  (2) Every individual who commits an offence under subsection (1) is liable,

  • (a) on conviction on indictment,

    • (i) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000 or to imprisonment for a term of not more than five years, or to both, and

    • (ii) for a second or subsequent offence, to a fine of not less than $30,000 and 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 less than $5,000 and 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 or subsequent offence, to a fine of not less than $10,000 and not more than $600,000 or to imprisonment for a term of not more than six months, or to both.

• Marginal note:Penalty — other persons

  (3) Every person, other than an individual or a corporation referred to in subsection (4), who commits and offence under subsection (1) is liable,

  • (a) on conviction on indictment,

    • (i) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and

    • (ii) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000; or

  • (b) on summary conviction,

    • (i) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and

    • (ii) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000.

• Marginal note:Penalty — small revenue corporations

  (4) Every corporation that commits an offence under subsection (1) and that the court determines under section 37 to be a small revenue corporation is liable,

  • (a) on conviction on indictment,

    • (i) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and

    • (ii) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or

  • (b) on summary conviction,

    • (i) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and

    • (ii) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.

Marginal note:Offence

• 34 (1) Every person commits an offence who contravenes any provision of the Act or the regulations, other than a provision the contravention of which is an offence under subsection 33(1).

• Marginal note:Penalty — individuals

  (2) Every individual who 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 $100,000, and

    • (ii) for a second or subsequent offence, to a fine of not more than $200,000; or

  • (b) on summary conviction,

    • (i) for a first offence, to a fine of not more than $25,000, and

    • (ii) for a second or subsequent offence, to a fine of not more than $50,000.

• Marginal note:Penalty — other persons

  (3) Every person, other than an individual or a corporation referred to in subsection (4), 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 $500,000, and

    • (ii) for a second or subsequent offence, to a fine of not more than $1,000,000; or

  • (b) on summary conviction,

    • (i) for a first offence, to a fine of not more than $250,000, and

    • (ii) for a second or subsequent offence, to a fine of not more than $500,000.

• Marginal note:Penalty — small revenue corporations

  (4) Every corporation that commits an offence under subsection (1) and that the court determines under section 37 to be a small revenue corporation is liable,

  • (a) on conviction on indictment,

    • (i) for a first offence, to a fine of not more than $250,000, and

    • (ii) for a second or subsequent offence, to a fine of not more than $500,000; or

  • (b) on summary conviction,

    • (i) for a first offence, to a fine of not more than $50,000, and

    • (ii) for a second or subsequent offence, to a fine of not more than $100,000.

Marginal note:Continuing offences

35 If a contravention of a provision of this Act or of the regulations is committed or continued on more than one day, it constitutes a separate offence for each day on which it is committed or continued.

Marginal note:Deeming — second and subsequent offence

• 36 (1) For the purposes of sections 33 and 34, a conviction for a particular offence under this Act is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the offender has been previously convicted — under any Act of Parliament, or any Act of the legislature of a province, that relates to water resource management — of a substantially similar offence.

• Marginal note:Application

  (2) Subsection (1) applies only to previous convictions on indictment and to previous convictions on summary conviction, and to previous convictions under any similar procedure under any Act of the legislature of a province.

Marginal note:Determination of small revenue corporation status

37 For the purpose of sections 33 and 34, a court may determine a corporation to be a small revenue corporation if the court is satisfied that the corporation’s gross revenues for the 12 months immediately before the day on which the subject matter of the proceedings arose — or, if it arose on more than one day, for the 12 months immediately before the first day on which the subject matter of the proceedings arose — were not more than $5,000,000.

Marginal note:Relief from minimum fine

38 The court may impose a fine that is less than the minimum amount provided for in any of subsections 33(2) to (4) if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in that subsection.

Marginal note:Additional fine

39 If a person is convicted of an offence under this Act and the court is satisfied that, as a result of the commission of the offence, the person acquired any property, benefit or advantage, the court shall order the person to pay an additional fine in an amount equal to the court’s estimation of the value of that property, benefit or advantage. The additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.

Marginal note:Notice to shareholders

40 If a corporation that has shareholders has been convicted of an offence under this Act, the court shall make an order directing the corporation to notify its shareholders, in the manner and within the time directed by the court, of the facts relating to the commission of the offence and of the details of the punishment imposed.

Marginal note:Liability of directors, officers, etc., of corporation

• 41 (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 for an individual in respect of the offence committed by the corporation, whether or not the corporation has been prosecuted or convicted.

• Marginal note:Directors’ and officers’ duties

  (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, and prohibitions and requirements imposed by, any court, the Minister, enforcement officers and analysts.

Marginal note:Fundamental purpose of sentencing

42 The fundamental purpose of sentencing for offences under this Act is to contribute to respect for this Act through the imposition of just sanctions that have as their objectives

• (a) to deter the offender and any other person from committing offences under this Act;

• (b) to denounce unlawful conduct that harms water resources; and

• (c) to restore the environment harmed by the offence.

Marginal note:Sentencing principles

• 43 (1) In addition to the principles and factors that the court is otherwise required to consider, including those set out in sections 718.1 to 718.21 of the Criminal Code, the court shall consider the following principles when sentencing a person who is convicted of an offence under this Act:

  • (a) the amount of the fine should be increased to account for every aggravating factor associated with the offence, including the aggravating factors set out in subsection (2); and

  • (b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.

• Marginal note:Aggravating factors

  (2) The aggravating factors are the following:

  • (a) the offence caused damage or risk of damage to the environment;

  • (b) the offence caused damage or risk of damage to any unique, particularly important or vulnerable environment;

  • (c) the damage caused by the offence is extensive, persistent or irreparable;

  • (d) the offender committed the offence intentionally or recklessly;

  • (e) the offender failed to take reasonable steps to prevent the commission of the offence despite having the financial means to do so;

  • (f) by committing the offence or failing to take action to prevent its commission, the offender increased revenue or decreased costs or intended to increase revenue or decrease costs;

  • (g) the offender committed the offence despite having been warned by an enforcement officer of the circumstances that subsequently became the subject of the offence;

  • (h) the offender has a history of non-compliance with federal or provincial legislation that relates to water resource management; and

  • (i) after the commission of the offence, the offender

    • (i) attempted to conceal its commission,

    • (ii) failed to take prompt action to prevent, mitigate or remediate its effects, or

    • (iii) failed to take prompt action to reduce the risk of committing similar offences in the future.

• Marginal note:Absence of aggravating factor

  (3) The absence of an aggravating factor set out in subsection (2) is not a mitigating factor.

• Meaning of damage

  (4) For the purposes of paragraphs (2)(a) to (c), damage includes loss of use value and non-use value.

• Marginal note:Reasons

  (5) If the court is satisfied of the existence of one or more of the aggravating factors set out in subsection (2) but decides not to increase the amount of the fine because of that factor, the court shall give reasons for that decision.

Marginal note:Application of fines

• 44 (1) All fines received by the Receiver General in respect of the commission of an offence under this Act, other than fines collected under the Contraventions Act, are to be credited to the Environmental Damages Fund, an account in the accounts of Canada, and used for purposes related to protecting, conserving or restoring the environment or for administering that Fund.

• Marginal note:Recommendations of court

  (2) The court imposing the fine may recommend to the Minister that all or a portion of the fine credited to the Environmental Damages Fund be paid to a person or an organization specified by the court for a purpose referred to in subsection (1).

Marginal note:Orders of court

• 45 (1) If a person is convicted of an offence under this Act, in addition to any punishment imposed, the court may, 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:

  • (a) prohibiting the person from doing any act or engaging in any activity that may, 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 damage to the environment that resulted or may result from the commission of the offence;

  • (c) directing the person to post a bond, provide surety or pay into court an amount of money that the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction or requirement mentioned in this section;

  • (d) directing the person to carry out environmental effects monitoring in the manner established by the Minister or directing the person to pay, in the manner specified by the court, an amount for the purposes of environmental effects monitoring;

  • (e) directing the person to implement an environmental management system that meets a recognized Canadian or international standard specified by the court;

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

  • (g) directing the person to pay to Her Majesty in right of Canada an amount of money that the court considers appropriate for the purpose of promoting sustainable water resource management;

  • (h) directing the person to publish, in the manner specified by the court, the facts relating to the commission of the offence and the details of the punishment imposed, including any orders made under this subsection;

  • (i) directing the person to notify, at the person’s own cost and in the manner specified by the court, any person aggrieved or affected by the person’s conduct of the facts relating to the commission of the offence and of the details of the punishment imposed, including any orders made under this subsection;

  • (j) directing the person to submit to the Minister, when requested to do so by the Minister at any time within three years after the date of conviction, any information with respect to the person’s activities that the court considers appropriate in the circumstances;

  • (k) directing the person to compensate any person, monetarily or otherwise, in whole or in part, for the cost of any remedial or preventive action taken, caused to be taken or to be taken as a result of the act or omission that constituted the offence, including costs of assessing appropriate remedial or preventive action;

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

  • (m) requiring the person to surrender to the Minister any licence issued under the regulations to the person;

  • (n) prohibiting the person from applying for any new licence under the regulations during any period that the court considers appropriate;

  • (o) directing the person to pay, in the manner prescribed by the court, an amount to environmental or other groups to assist in their work in or for a community near the place where the offence was committed;

  • (p) directing the person to pay, in a manner specified by the court, an amount to enable research to be conducted into the protection, conservation or restoration of international rivers;

  • (q) directing the person to pay, in the manner prescribed by the court, an amount to an educational institution including for scholarships for students enrolled in studies related to the environment; and

  • (r) requiring the person to comply with any other conditions that the court considers appropriate for securing the offender’s good conduct and for deterring the person and any other person from committing offences under this Act.

• Marginal note:Publication

  (2) If a person fails to comply with an order made under paragraph (1)(h), the Minister may, in the manner that the court directed the person to do so, publish the facts relating to the commission of the offence and the details of the punishment imposed and recover the costs of publication from the person.

• Marginal note:Debt due to Her Majesty

  (3) If the court makes an order under paragraph (1)(g) or (k) directing a person to pay an amount to Her Majesty in right of Canada, or if the Minister incurs publication costs under subsection (2), the amount or the costs, as the case may be, constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.

• Marginal note:Enforcement

  (4) If the court makes an order under paragraph (1)(k) directing a person to pay an amount to another person, other than to Her Majesty in right of Canada, that other person 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 person who was directed to pay the amount in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

• Marginal note:Cancellation or suspension of licences

  (5) If the court makes an order under paragraph (1)(m), any licence to which the order relates is cancelled unless the court makes an order suspending it for any period that the court considers appropriate.

• Marginal note:Coming into force and duration of order

  (6) 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 unless the court provides otherwise in the order.

Marginal note:Forfeiture

• 46 (1) If a person is convicted of an offence under this Act, the 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 in right of Canada.

• Marginal note:Return if no forfeiture ordered

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

Marginal note:Retention or sale

47 If a fine is imposed on a person who is 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:Compensation for loss of property

• 48 (1) If a person 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 the aggrieved 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.

• Marginal note:Enforcement

  (2) If the amount ordered to be paid under subsection (1) is not paid without delay, the aggrieved person 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.

Marginal note:Limitation period

49 No proceedings by way of summary conviction in respect of an offence under this Act may be instituted more than five years after the day on which the subject matter of the proceedings arose, unless the prosecutor and the defendant agree that they may be instituted after the five years.

Marginal note:Publication of information about contraventions

• 50 (1) For the purpose of encouraging compliance with this Act and the regulations, the Minister shall maintain, in a registry accessible to the public, information about all convictions of corporations for offences under this Act.

• Marginal note:Retention

  (2) Information in the registry is to be maintained for a minimum of five years.

Reports

Marginal note:Report — operations under the Act

51 As soon as practicable after the 31st day of December of each year, the Minister shall prepare and cause a report of the operations under this Act for that year to be tabled in each House of Parliament.

Marginal note:Review — sections 33 to 50

• 52 (1) The Minister shall, 10 years after the day on which this section comes into force and every 10 years after that, undertake a review of sections 33 to 50.

• Marginal note:Report to Parliament

  (2) The Minister shall, no later than one year after the day on which the review is undertaken, cause a report on the review to be tabled in each House of Parliament.