• (i.1) companies that have been granted the leave required by paragraph 74(1)(d),

Sentencing

Marginal note:Sentencing principles

• 132. (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 found guilty of an offence under this Act in relation to an actual or potential unintended or uncontrolled release of oil, gas or any other commodity from a pipeline:

  • (a) the amount of the fine should be increased to account for each 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 harm or risk of harm to human health or safety;

  • (b) the offence caused damage or risk of damage to the environment or environmental quality;

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

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

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

  • (f) the offender failed to take reasonable steps to prevent the commission of the offence;

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

  • (h) the offender has a history of non-compliance with federal or provincial legislation that relates to safety or environmental conservation or protection; 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.

• 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)(b) to (d), “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:Orders of court

• 132.1 (1) If a person is found guilty of an offence under this Act in relation to an actual or potential unintended or uncontrolled release of oil, gas or any other commodity from a pipeline, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, in addition to any other punishment that may be imposed under this Act, make an order that has any or all of the following effects:

  • (a) prohibiting the offender from committing an act or engaging in an activity that may, in the opinion of the court, 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 Board or directing the offender to pay, in the manner specified by the court, an amount of money for the purposes of environmental effects monitoring;

  • (d) directing the offender to make changes to their environmental protection program that are satisfactory to the Board;

  • (e) directing the offender to have an environmental audit conducted by a person of a class and at the times specified by the Board and directing the offender to take the measures that the Board considers appropriate to remedy any deficiencies revealed during the audit;

  • (f) directing the offender to pay to Her Majesty in right of Canada, for the purpose of promoting the conservation, protection or restoration of the environment, or to pay into the Environmental Damages Fund — an account in the accounts of Canada — an amount of money that the court considers appropriate;

  • (g) directing the offender 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;

  • (h) directing the offender to notify, at the offender’s own cost and in the manner specified by the court, any person aggrieved or affected by the offender’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;

  • (i) directing the offender to post a bond or pay an amount of money into court that the court considers appropriate to ensure that the offender complies with all or part of any prohibition, direction, requirement or condition that is specified in the order;

  • (j) directing the offender to perform community service, subject to any reasonable conditions that may be imposed by the court;

  • (k) directing the offender to pay, in the manner prescribed by the court, an amount of money to environmental, health or other groups to assist in their work;

  • (l) directing the offender to pay, in the manner prescribed by the court, an amount of money to an educational institution including for scholarships for students enrolled in studies related to the environment;

  • (m) requiring the offender to comply with any conditions that the court considers appropriate in the circumstances for securing the offender’s good conduct and for preventing the offender from repeating the same offence or committing another offence under this Act; and

  • (n) prohibiting the offender from applying for any new authorization under this Act during any period that the court considers appropriate.

• Marginal note:Coming into force and duration of order

  (2) An order made under subsection (1) comes into force on the day on which the order is made or on any other day that the court may determine, but shall not continue in force for more than three years after that day.

• Marginal note:Publication

  (3) If an offender does not comply with an order requiring the publication of facts relating to the offence and the details of the punishment, the Board may, in the manner that the court directed the offender, publish those facts and details and recover the costs of publication from the offender.

• Marginal note:Debt due to Her Majesty

  (4) If the Board incurs publication costs under subsection (3), the costs constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.

Marginal note:Variation of sanctions

• 132.2 (1) Subject to subsection (2), if a court has made, in relation to an offender, an order under section 132.1, the court may, on application by the offender or the Board, require the offender to appear before it and, after hearing the offender and the Board, may vary the order in one or more of the following ways that the court considers appropriate because of a change in the offender’s circumstances since the order was made:

  • (a) by making changes to any prohibition, direction, requirement or condition that is specified in the order or by extending the time during which the order is to remain in force for any period that is not more than one year; or

  • (b) by decreasing the time during which the order is to remain in force or by relieving the offender, either absolutely or partially or for any period, of compliance with any condition that is specified in the order.

• Marginal note:Notice

  (2) Before varying the 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.

Marginal note:Subsequent applications with leave

132.3 If an application made under subsection 132.2(1) in relation to an offender has been heard by a court, no other application shall be made under section 132.2 in relation to the offender except with leave of the court.

Marginal note:Recovery of fines and amounts

132.4 If a person is found guilty of an offence under this Act and a fine that is imposed is not paid when required, or if a court orders an offender to pay an amount under subsection 132.1(1) or 132.2(1) and the amount is not paid, the prosecutor may, by filing the conviction or order, as the case may be, enter as a judgment the amount of the fine or the amount ordered to be paid, and costs, if any, in any court of competent jurisdiction in Canada, and the judgment is enforceable against the person in the same manner as if it were a judgment rendered against them in that court in civil proceedings.

Marginal note:Report to Parliament

133. The Board shall, within four months after the end of each fiscal year, submit to the Minister a report on the activities of the Board under this Act for that fiscal year, and the Minister shall cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the day on which the report is received.

“abandoned pipeline”

« pipeline abandonné »

“abandoned pipeline” means a pipeline the operation of which has been abandoned with the leave of the National Energy Board as required by paragraph 4.01(1)(d) and that remains in place;

• Marginal note:Terms and conditions — abandonment

  (2.1) The National Energy Board may, on granting leave to abandon the operation of a pipeline, impose any terms and conditions that it considers proper.

• Marginal note:Costs and expenses related to abandonment

  (2.2) The National Energy Board may order a holder of an authorization issued under paragraph 5(1)(b) or a holder of that authorization that has obtained the Board’s leave to abandon the operation of its pipeline, or the holder’s successor or assign, to take any measure that the Board considers necessary to ensure that the holder, or its successor or assign, has the ability to pay for the abandonment of its pipelines and any costs and expenses related to its abandoned pipelines.