Oceans Act (S.C. 1996, c. 31)

Marginal note:Liability of directors, officers or agents or mandataries

39.61 If a corporation or a ship owned or operated by a corporation commits an offence under section 39.6, 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 that section for an individual in respect of the offence committed by the corporation or the ship, whether or not the corporation or the ship has been prosecuted or convicted.

Marginal note:Liability of owners, operators, masters and chief engineers of ships

39.62 If a ship commits an offence under section 39.6 and the owner, operator, master or chief engineer of the ship directed, authorized, assented to, acquiesced in or participated in the commission of the offence, the owner, operator, master or chief engineer, as the case may be, is a party to and guilty of the offence and is liable on conviction to the penalty provided for by that section for an individual who commits an offence under that section, whether or not the ship has been prosecuted or convicted.

Marginal note:Defence

• 39.63 (1) A person shall not be found guilty of an offence under section 39.6, other than an offence consisting of a contravention of subsection 39(6), if the person establishes that they exercised due diligence to prevent the commission of the offence.

• Marginal note:Defence — ship

  (2) If a ship is prosecuted for an offence, only the persons referred to in subsection 39.67(5) may establish, for the purposes of subsection (1), that they exercised due diligence to prevent the commission of the offence.

• Marginal note:Contravention of unpublished order

  (3) A person shall not be found guilty of an offence consisting of a contravention of an order made under subsection 36(1) that, at the time of the alleged contravention, had not been published in the Canada Gazette unless it is proved that reasonable steps had been taken before that time to bring the purport of the order to the attention of those persons likely to be affected by it.

Marginal note:Continuing offence

• 39.64 (1) A person who 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.

• Marginal note:Fines cumulative

  (2) If a person is convicted of an offence involving more than one animal, plant, other organism or object, the fine to be imposed in respect of that offence may be, despite section 39.6, the total of the fines that would have been imposed if each of the animals, plants, organisms or objects had been the subject of a separate information.

• Marginal note:Additional fine

  (3) If a person is convicted of an offence 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 them 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 section 39.6.

• Marginal note:Deeming — second and subsequent offence

  (4) A conviction for a particular offence under section 39.6 is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the person has been previously convicted — under any Act of Parliament or an Act of a provincial legislature that relates to environmental or wildlife protection or conservation — of a substantially similar offence.

• Marginal note:Application

  (5) Subsection (4) applies only to previous convictions on indictment, to previous convictions on summary conviction and to previous convictions under any similar procedure under an Act of a provincial legislature.

Marginal note:Relief from minimum fine

39.65 The court may impose a fine that is less than the minimum amount provided for in section 39.6 if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship to the person who has been convicted of an offence. The court shall provide reasons if it imposes a fine that is less than the minimum amount.

Marginal note:Application of fines

• 39.66 (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 the conservation, protection or restoration of marine protected areas, 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:Application to ships

• 39.67 (1) The provisions of this Part — and those of any regulations or orders made under this Part or any regulations made under section 52.1 — relating to indictable or summary conviction offences that apply to persons also apply to ships, with any modifications that the circumstances require.

• Marginal note:Application of Criminal Code

  (2) The provisions of the Criminal Code relating to indictable or summary conviction offences that apply to persons also apply to ships, with any modifications that the circumstances require.

• Marginal note:Service

  (3) When a ship is charged with an offence under section 39.6, the summons may be served by leaving it with the master or another officer, the authorized representative, the owner or the operator of the ship, or if it cannot reasonably be left with any of those persons, by posting a copy of it on any conspicuous part of the ship.

• Marginal note:Appearance at trial

  (4) If a ship is charged with an offence under section 39.6, the ship may appear by counsel or representative before the court. Despite the Criminal Code, if the ship does not so appear, a court may, on proof of service of the summons, proceed to hold the trial.

• Marginal note:Proof of offence by ship

  (5) If a ship is prosecuted for an offence under section 39.6, it is sufficient proof of the offence to establish that the act or omission that constitutes the offence was committed by the master of the ship or any other person on board the ship, whether or not the person on board has been identified or has been prosecuted for the offence.

• Marginal note:Direction binding ship

  (6) For the purpose of prosecuting a ship for contravening a direction made under section 39.2, any direction made under that section that is given to the master or another officer, the authorized representative, the owner or the operator of the ship is deemed to have been given to the ship and is binding on it.

• Marginal note:Notice of detention order binding ship

  (7) For the purpose of prosecuting a ship for contravening of subsection 39.21(4), the notice of the detention order served in accordance with subsection 39.21(3) is deemed to have been served on the ship and is binding on it.

Marginal note:Sentencing principles

• 39.68 (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 to be considered by the court in respect of a person convicted of an offence are the following:

  • (a) the offence caused damage or a risk of damage to any marine resource, habitat or ecosystem;

  • (b) the offence caused damage or a risk of damage to any unique, rare, particularly important or vulnerable marine resource, habitat or ecosystem;

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

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

  • (e) the person 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 person increased revenue or decreased costs or intended to increase revenue or decrease costs;

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

  • (h) the person has a history of non-compliance with an Act of Parliament or an Act of a provincial legislature that relates to environmental or wildlife protection or conservation; and

  • (i) after committing the offence, the person

    • (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.

• Marginal note:Definition 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 decides not to increase the amount of the fine despite being satisfied of the existence of one or more of the aggravating factors set out in subsection (2), the court shall provide reasons for that decision.

Marginal note:Forfeiture

• 39.7 (1) Where a person 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 in right of Canada.

• Marginal note:Return where no forfeiture ordered

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

Marginal note:Retention or sale

39.8 Where a fine is imposed on a person 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:Orders of court

• 39.9 (1) Where a person 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:

  • (a) prohibiting the person 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 person to take any action that the court considers appropriate to remedy or avoid any harm to estuarine, coastal or ocean waters, or their resources that resulted or may result from the commission of the offence;

  • (c) directing the person to publish, in any manner that the court considers appropriate, the facts relating to the commission of the offence;

  • (d) directing the person 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;

  • (e) directing the person to perform community service in accordance with any reasonable conditions that may be specified in the order;

  • (f) directing the person to submit to the Minister, on application to the court by the Minister within three years after the conviction, any information respecting the activities of the person that the court considers appropriate in the circumstances;

  • (g) requiring the person to comply with any other conditions that the court considers appropriate for securing the person’s good conduct and for preventing the person from repeating the offence or committing other offences;

  • (h) directing the person to post a bond 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 under this section;

  • (i) directing the person to pay, in the manner specified by the court, an amount for monitoring the environmental effects of any activity or marine installation or structure on any marine resource, habitat or ecosystem in any marine protected area;

  • (j) 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 the conservation, protection or restoration of any marine protected area;

  • (k) directing the person to pay, in a manner specified by the court, an amount to enable research to be conducted with respect to the conservation, protection or restoration of any marine protected area;

  • (l) directing the person to pay, in the manner specified by the court, an amount to environmental or other groups to assist in their work related to marine protected areas; and

  • (m) directing the person to pay, in the manner specified by the court, an amount to an educational institution including for scholarships for students enrolled in studies related to the environment.

• Marginal note:Debt due to Her Majesty

  (2) If the court makes an order under paragraph (1)(j) directing a person to pay an amount to Her Majesty in right of Canada, the amount constitutes a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.

Marginal note:Suspended sentence

• 39.91 (1) Where a person is convicted of an offence and the court suspends the passing of sentence pursuant to the Criminal Code, the court may, in addition to any probation order made on suspending the passing of that sentence, make an order containing one or more of the prohibitions, directions or requirements mentioned in section 39.9.

• Marginal note:Imposition of sentence

  (2) Where the person 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.