Marginal note:Principal offences

• 90. (1) Every person is guilty of an offence who contravenes subsection 11(1), section 12 or section 88 or who fails to comply with subsection 11(3) or with a direction given by an inspector under subsection 87(1).

• Marginal note:Punishment

  (2) Every person who commits an offence under subsection (1) is liable on summary conviction,

  • (a) for a first offence, to a fine not exceeding $250,000 or to imprisonment for a term not exceeding one year, or to both; and

  • (b) for a second or subsequent offence, to a fine not exceeding $500,000 or to imprisonment for a term not exceeding one year, or to both.

Marginal note:Offences — type A licences

• 90.1 (1) Every type A licensee is guilty of an offence who

  • (a) contravenes any condition of the licence, if the contravention does not constitute an offence under section 91; or

  • (b) fails, without reasonable excuse, to furnish or maintain security as required under subsection 76(1).

• Marginal note:Punishment

  (2) Every licensee who commits an offence under subsection (1) is liable on summary conviction,

  • (a) for a first offence, to a fine not exceeding $250,000 or to imprisonment for a term not exceeding one year, or to both; and

  • (b) for a second or subsequent offence, to a fine not exceeding $500,000 or to imprisonment for a term not exceeding one year, or to both.

Marginal note:Offences — type B licences

• 90.2 (1) Every type B licensee is guilty of an offence who

  • (a) contravenes any condition of the licence, if the contravention does not constitute an offence under section 91; or

  • (b) fails, without reasonable excuse, to furnish or maintain security as required under subsection 76(1).

• Marginal note:Punishment

  (2) Every licensee who commits an offence under subsection (1) is liable on summary conviction

  • (a) for a first offence, to a fine not exceeding $37,500 or to imprisonment for a term not exceeding six months, or to both; and

  • (b) for a second or subsequent offence, to a fine not exceeding $75,000 or to imprisonment for a term not exceeding six months, or to both.

Marginal note:Continuing offences

90.3 An offence under subsection 90(1), 90.1(1) or 90.2(1) that is committed or continued on more than one day constitutes a separate offence for each day on which it is committed or continued.

Marginal note:Deeming — second or subsequent offence

• 90.4 (1) For the purposes of paragraphs 90(2)(b), 90.1(2)(b) and 90.2(2)(b), a conviction for a particular offence under this Part is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the offender has been previously convicted of a substantially similar offence under an Act of Parliament — or an Act of the legislature of a province — that relates to environmental or wildlife conservation or protection.

• Marginal note:Application

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

• (a) contravenes subsection 86(4) or any regulations made under paragraph 82(1)(o), (p) or (q); or

Marginal note:Limitation period or prescription

92. No proceedings in respect of an offence under this Part are to be instituted more than five years after the day on which the Minister becomes aware of the acts or omissions that constitute the alleged offence.

Marginal note:Action to enjoin not prejudiced by prosecution

• 93. (1) Despite the fact that a prosecution has been instituted in respect of an offence under subsection 90(1), 90.1(1) or 90.2(1), the Attorney General of Canada may commence and maintain proceedings to enjoin conduct that constitutes an offence under any of those subsections.

Administrative Monetary Penalties

Regulations

Marginal note:Ministerial regulations

• 94.01 (1) The Minister may, with the approval of the Governor in Council, make regulations for the purposes of sections 94.02 to 94.3, including regulations

  • (a) designating as a violation that may be proceeded with in accordance with this Part

    • (i) the contravention of any specified provision of this Part or of the regulations,

    • (ii) the contravention of any order, direction or decision — or of any order, direction or decision of a specified class — made or given under this Part, or

    • (iii) the failure to comply with a term or condition of any licence or a term or condition of a specified class of licences;

  • (b) providing for the determination of or the method of determining the amount payable as the penalty, which may be different for individuals and other persons, for each violation;

  • (c) establishing the form and content of notices of violations;

  • (d) respecting the service of documents required or authorized under this Part, including the manner and proof of service and the circumstances under which documents are considered to be served; and

  • (e) respecting reviews by the Minister in respect of a notice of violation.

• Marginal note:Maximum amount of penalty

  (2) The amount that may be determined under any regulations made under paragraph (1)(b) as the penalty for each violation must not be more than $25,000, in the case of an individual, and $100,000 in the case of any other person.

Violations

Marginal note:Function of inspectors

94.02 Persons who are designated as inspectors under subsection 85(1) are authorized to issue notices of violation.

Marginal note:Commission of violation

• 94.03 (1) Every person who contravenes or fails to comply with a provision, order, direction, decision, term or condition designated under paragraph 94.01(1)(a) commits a violation and is liable to a penalty in the amount that is determined in accordance with the regulations.

• Marginal note:Purpose of penalty

  (2) The purpose of the penalty is to promote compliance with this Part and not to punish.

Marginal note:Liability of directors, officers, etc.

94.04 If a corporation commits a violation, any director, officer or agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to a penalty in the amount that is determined in accordance with the regulations, whether or not the corporation has been proceeded against in accordance with this Part.

Marginal note:Proof of violation

94.05 In any proceedings under this Part against a person in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee or agent or mandatary of the person, whether or not the employee or agent or mandatary is identified or proceeded against in accordance with this Part.

Marginal note:Issuance and service of notice of violation

• 94.06 (1) If an inspector believes on reasonable grounds that a person has committed a violation, the inspector may issue a notice of violation and cause it to be served on the person.

• Marginal note:Contents

  (2) The notice of violation must

  • (a) name the person that is believed to have committed the violation;

  • (b) set out the relevant facts surrounding the violation;

  • (c) set out the amount of the penalty;

  • (d) inform the person of their right to request a review with respect to the violation or the amount of the penalty, and of the period within which that right must be exercised;

  • (e) inform the person of the time and manner of paying the penalty; and

  • (f) inform the person that, if they do not pay the penalty or exercise their right referred to in paragraph (d), they are considered to have committed the violation and are liable to the penalty.

Rules about Violations

Marginal note:Certain defences not available

• 94.07 (1) A person named in a notice of violation does not have a defence by reason that they

  • (a) exercised due diligence to prevent the commission of the violation; or

  • (b) reasonably and honestly believed in the existence of facts that, if true, would exonerate them.

• Marginal note:Common law principles

  (2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under this Part applies in respect of a violation to the extent that it is not inconsistent with this Part.

Marginal note:Continuing violation

94.08 A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.

Marginal note:Violations or offences

• 94.09 (1) Proceeding with any act or omission as a violation under this Part precludes proceeding with it as an offence under this Part, and proceeding with it as an offence under this Part precludes proceeding with it as a violation under this Part.

• Marginal note:Violations not offences

  (2) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.

Marginal note:Limitation period or prescription

94.1 No notice of violation is to be issued more than two years after the day on which the Minister becomes aware of the acts or omissions that constitute the alleged violation.

Reviews

Marginal note:Right to request review

94.11 A person who is served with a notice of violation may — within 30 days after the day on which it is served or within any longer period that is prescribed by the regulations — make a request to the Minister for a review of the amount of the penalty or the facts of the violation, or both.

Marginal note:Correction or cancellation of notice of violation

94.12 At any time before a request for a review in respect of a notice of violation is received by the Minister, an inspector may cancel the notice of violation or correct an error in it.

Marginal note:Review

94.13 On receipt of a request for a review in respect of a notice of violation, the Minister shall conduct the review.

Marginal note:Object of review

• 94.14 (1) The Minister shall determine, as the case may be, whether the amount of the penalty was determined in accordance with the regulations or whether the person committed the violation, or both.

• Marginal note:Determination

  (2) The Minister shall render a written determination, with reasons, and cause the person who requested the review to be served with a copy. A copy shall also be provided without delay to the Board.

• Marginal note:Correction of penalty

  (3) If the Minister determines that the amount of the penalty was not determined in accordance with the regulations, the Minister shall correct it.

• Marginal note:Responsibility to pay penalty

  (4) If the Minister determines that the person who requested the review committed the violation, that person is liable to the penalty as set out in the determination.

• Marginal note:Determination final

  (5) A determination made under this section is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.

Marginal note:Burden of proof

94.15 If the facts of a violation are reviewed, the inspector who issued the notice of violation shall establish, on a balance of probabilities, that the person named in it committed the violation identified in it.

Responsibility

Marginal note:Payment

94.16 If a person pays the penalty, the person is considered to have committed the violation and proceedings in respect of it are ended. The Minister shall immediately notify the Board of the violation.

Marginal note:Failure to act

94.17 A person that neither pays the penalty within the period set out in the notice of violation nor requests a review within the period referred to in section 94.11 is considered to have committed the violation and is liable to the penalty. The Minister shall immediately notify the Board of the violation.

Recovery of Penalties

Marginal note:Debts to Her Majesty

• 94.18 (1) A penalty constitutes a debt due to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction.

• Marginal note:Limitation period or prescription

  (2) No proceedings to recover the debt are to be instituted more than five years after the day on which the debt becomes payable.

Marginal note:Certificate

• 94.19 (1) The Minister may issue a certificate of non-payment certifying the unpaid amount of any debt referred to in subsection 94.18(1).

• Marginal note:Registration of certificate

  (2) Registration of a certificate of non-payment in any court of competent jurisdiction has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.

General

Marginal note:Authenticity of documents

94.2 In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 94.06(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.

Marginal note:Publication

94.3 The Board shall make public the nature of a violation, the name of the person who committed it and the amount of the penalty.