An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts (S.C. 2017, c. 7)

PART VAdministrative Monetary Penalties

Violation

Marginal note:Commission of violation

33 Every person who contravenes a provision designated by regulations made under paragraph 34(1)(a), or contravenes an order made under section 45.1 or 45.2 or reviewed under section 45.4, commits a violation and is liable to the penalty established in accordance with the provisions of this Act and the regulations.

Powers of the Governor in Council and the Minister

Marginal note:Regulations

• 34 (1) The Governor in Council may make regulations

  • (a) designating as a violation that may be proceeded with in accordance with this Act the contravention of any specified provision of this Act — except a provision of Part I — or the regulations;

  • (b) fixing a penalty, or a range of penalties, in respect of each violation;

  • (c) classifying each violation as a minor violation, a serious violation or a very serious violation; and

  • (d) respecting the circumstances under which, the criteria by which and the manner in which a penalty may be increased or reduced, including a reduction in the amount that is provided for in a compliance agreement.

• Marginal note:Maximum penalty

  (2) The maximum penalty for a violation is $30,000.

Marginal note:Criteria for penalty

35 Unless a penalty is fixed under paragraph 34(1)(b), the amount of a penalty shall, in each case, be determined taking into account

• (a) the history of compliance with the provisions of this Act or the regulations by the person who committed the violation;

• (b) the harm to public health or safety that resulted or could have resulted from the violation;

• (c) whether the person made reasonable efforts to mitigate or reverse the violation’s effects;

• (d) whether the person derived any competitive or economic benefit from the violation; and

• (e) any other prescribed criteria.

Marginal note:Notices of violation

36 The Minister may

• (a) designate individuals, or classes of individuals, who are authorized to issue notices of violation; and

• (b) establish, in respect of each violation, a short-form description to be used in notices of violation.

Proceedings

Marginal note:Issuance of notice of violation

• 37 (1) If a person who is designated under paragraph 36(a) believes on reasonable grounds that a person has committed a violation, the designated person may issue, and shall provide the person with, a notice of violation that

  • (a) sets out the person’s name;

  • (b) identifies the alleged violation;

  • (c) sets out the penalty for the violation that the person is liable to pay; and

  • (d) sets out the particulars concerning the time and manner of payment.

• Marginal note:Summary of rights

  (2) A notice of violation shall clearly summarize, in plain language, the named person’s rights and obligations under this section and sections 38 to 43.7, including the right to have the acts or omissions that constitute the alleged violation or the amount of the penalty reviewed and the procedure for requesting that review.

Penalties

Marginal note:Payment

• 38 (1) If the person named in the notice pays, in the prescribed time and manner, the amount of the penalty,

  • (a) they are deemed to have committed the violation in respect of which the amount is paid;

  • (b) the Minister shall accept that amount as complete satisfaction of the penalty; and

  • (c) the proceedings commenced in respect of the violation under section 37 are ended.

• Marginal note:Alternatives to payment

  (2) Instead of paying the penalty set out in a notice of violation, the person named in the notice may, in the prescribed time and manner,

  • (a) if the penalty is $5,000 or more, request to enter into a compliance agreement with the Minister that ensures the person’s compliance with the order or the provision to which the violation relates; or

  • (b) request a review by the Minister of the acts or omissions that constitute the alleged violation or the amount of the penalty.

• Marginal note:Deeming

  (3) If the person named in the notice of violation does not pay the penalty in the prescribed time and manner and does not exercise any right referred to in subsection (2) in the prescribed time and manner, they are deemed to have committed the violation identified in the notice.

Compliance Agreements

Marginal note:Compliance agreements

• 39 (1) After considering a request under paragraph 38(2)(a), the Minister may enter into a compliance agreement, as described in that paragraph, with the person making the request on any terms and conditions that are satisfactory to the Minister. The terms and conditions may

  • (a) include a provision for the giving of reasonable security, in a form and in an amount satisfactory to the Minister, as a guarantee that the person will comply with the compliance agreement; and

  • (b) provide for the reduction, in whole or in part, of the penalty for the violation.

• Marginal note:Deeming

  (2) A person who enters into a compliance agreement with the Minister is, on doing so, deemed to have committed the violation in respect of which the compliance agreement was entered into.

• Marginal note:Notice of compliance

  (3) If the Minister is satisfied that a person who has entered into a compliance agreement has complied with it, the Minister shall cause a notice to that effect to be provided to the person, at which time

  • (a) the proceedings commenced in respect of the violation under section 37 are ended; and

  • (b) any security given by the person under the compliance agreement shall be returned to the person.

• Marginal note:Notice of default

  (4) If the Minister is of the opinion that a person who has entered into a compliance agreement has not complied with it, the Minister shall cause a notice of default to be provided to the person to the effect that

  • (a) instead of the penalty set out in the notice of violation in respect of which the compliance agreement was entered into, the person is liable to pay, in the prescribed time and manner, twice the amount of that penalty, and, for greater certainty, subsection 34(2) does not apply in respect of that amount; or

  • (b) the security, if any, given by the person under the compliance agreement shall be forfeited to Her Majesty in right of Canada.

• Marginal note:Effect of notice of default

  (5) Once provided with the notice of default, the person may not deduct from the amount set out in the notice any amount that they spent under the compliance agreement and

  • (a) the person is liable to pay the amount set out in the notice; or

  • (b) if the notice provides for the forfeiture of the security given under the compliance agreement, that security is forfeited to Her Majesty in right of Canada and the proceedings commenced in respect of the violation under section 37 are ended.

• Marginal note:Effect of payment

  (6) If a person pays the amount set out in the notice of default in the prescribed time and manner,

  • (a) the Minister shall accept the amount as complete satisfaction of the amount owing; and

  • (b) the proceedings commenced in respect of the violation under section 37 are ended.

Marginal note:Refusal to enter into compliance agreement

• 40 (1) If the Minister refuses to enter into a compliance agreement requested under paragraph 38(2)(a), the person who made the request is liable to pay the amount of the penalty in the prescribed time and manner.

• Marginal note:Effect of payment

  (2) If a person pays the amount referred to in subsection (1),

  • (a) they are deemed to have committed the violation in respect of which the payment is made;

  • (b) the Minister shall accept the amount as complete satisfaction of the penalty; and

  • (c) the proceedings commenced in respect of the violation under section 37 are ended.

• Marginal note:Deeming

  (3) If a person does not pay the amount referred to in subsection (1) in the prescribed time and manner, they are deemed to have committed the violation identified in the notice of violation.

Review by the Minister

Marginal note:Review — facts

• 41 (1) On completion of a review requested under paragraph 38(2)(b) with respect to the acts or omissions that constitute the alleged violation, the Minister shall determine whether the person who requested the review committed the violation. If the Minister determines that the person committed the violation but that the amount of the penalty was not established in accordance with the provisions of this Act and the regulations, the Minister shall correct the amount.

• Marginal note:Violation not committed — effect

  (2) If the Minister determines under subsection (1) that the person who requested the review did not commit the violation, the proceedings commenced in respect of it under section 37 are ended.

• Marginal note:Review — penalty

  (3) On completion of a review requested under paragraph 38(2)(b) with respect to the amount of the penalty, the Minister shall determine whether the amount of the penalty was established in accordance with the provisions of this Act and the regulations and, if not, the Minister shall correct the amount.

• Marginal note:Notice of decision

  (4) The Minister shall cause a notice of any decision made under subsection (1) or (3) to be provided to the person who requested the review.

• Marginal note:Payment

  (5) The person is liable to pay, in the prescribed time and manner, the amount of the penalty that is confirmed or corrected in the Minister’s decision made under subsection (1) or (3).

• Marginal note:Effect of payment

  (6) If a person pays the amount referred to in subsection (5),

  • (a) the Minister shall accept the amount as complete satisfaction of the penalty; and

  • (b) the proceedings commenced in respect of the violation under section 37 are ended.

• Marginal note:Written evidence and submissions

  (7) The Minister shall consider only written evidence and written submissions in determining whether a person committed a violation or whether the amount of a penalty was established in accordance with the provisions of this Act and the regulations.

Enforcement

Marginal note:Debts to Her Majesty

• 42 (1) The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in the Federal Court :

  • (a) the amount of a penalty, from the time the notice of violation setting out the penalty is provided;

  • (b) every amount set out in a compliance agreement entered into with the Minister under subsection 39(1), from the time the compliance agreement is entered into;

  • (c) the amount set out in a notice of default referred to in subsection 39(4), from the time the notice is provided; and

  • (d) the amount of a penalty as set out in a decision of the Minister made under subsection 41(1) or (3), from the time the notice of that decision is provided.

• Marginal note:Time limit

  (2) No proceedings to recover a debt referred to in subsection (1) may be commenced later than five years after the debt became payable.

• Marginal note:Debt final

  (3) A debt referred to in subsection (1) is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 38 to 41.

Marginal note:Certificate of default

• 43 (1) Any debt referred to in subsection 42(1) in respect of which there is a default of payment, or the part of any such debt that has not been paid, may be certified by the Minister.

• Marginal note:Judgments

  (2) On production to the Federal Court, the certificate shall be registered in that Court and, when registered, has the same force and effect, and all proceedings may be taken on the certificate, as if it were a judgment obtained in that Court for a debt of the amount specified in it and all reasonable costs and charges associated with the registration of the certificate.

Rules About Violations

Marginal note:Certain defences not available

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

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

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

• 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 Act applies in respect of a violation to the extent that it is not inconsistent with this Act.

Marginal note:Burden of proof

43.2 In every case when the facts of a violation are reviewed by the Minister, he or she shall determine, on a balance of probabilities, whether the person named in the notice of violation committed the violation identified in the notice.

Marginal note:Violation by corporate officers, etc.

43.3 If a person other than an individual commits a violation under this Act, any of the person’s directors, officers, agents or mandataries who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to and liable for the violation whether or not the person who actually committed the violation is proceeded against under this Act.

Marginal note:Vicarious liability — acts of employees and agents

43.4 A person is liable for a violation that is committed by any employee, agent or mandatary of the person acting in the course of the employee’s employment or the scope of the agent or mandatary’s authority, whether or not the employee, agent or mandatary who actually committed the violation is identified or proceeded against under this Act.

Marginal note:Continuing violation

43.5 A violation that is continued on more than one day constitutes a separate violation in respect of each day on which it is continued.

Other Provisions

Marginal note:Evidence

43.6 In any proceeding in respect of a violation or a prosecution for an offence, a notice of violation purporting to be issued under this Act is admissible in evidence without proof of the signature or official character of the person appearing to have signed the notice of violation.

Marginal note:Time limit

43.7 Proceedings in respect of a violation shall not be commenced later than six months after the Minister becomes aware of the acts or omissions that constitute the alleged violation.

Marginal note:How act or omission may be proceeded with

43.8 If an act or omission may be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.

Marginal note:Certification by Minister

43.9 A document appearing to have been issued by the Minister, certifying the day on which the acts or omissions that constitute the alleged violation became known to the Minister, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and, in the absence of evidence to the contrary, is proof that the Minister became aware of the acts or omissions on that day.

Marginal note:Publication of information

43.91 The Minister may, for the purpose of encouraging compliance with the provisions of this Act and the regulations, publish information about any violation after proceedings in respect of it are ended.