Canada National Marine Conservation Areas Act (S.C. 2002, c. 18)

Marginal note:Determination of small revenue corporation status

24.1 For the purpose of section 24, 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

24.2 The court may impose a fine that is less than the minimum amount provided for in subsection 24(1) 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

24.3 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

24.4 If a corporation that has shareholders is 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 corporations

• 24.5 (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:Duties of directors and officers of corporations

  (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;

  • (b) orders made by a court, the Minister or the superintendent under this Act; and

  • (c) directions of the superintendent, a marine conservation area warden or an enforcement officer made under this Act.

Marginal note:Fundamental purpose of sentencing

24.6 The fundamental purpose of sentencing for offences under this Act is to contribute to respect for the law establishing and protecting marine conservation areas 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 damages or creates a risk of damage to marine conservation areas; and

• (c) to restore marine conservation area resources.

Marginal note:Sentencing principles

• 24.7 (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 any marine conservation area resources;

  • (b) the offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable marine conservation area resources;

  • (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 the superintendent, a marine conservation area warden or 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 environmental or wildlife protection or conservation or the protection of cultural, historical or archaeological resources; 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.

• Marginal note: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:Forfeiture of things seized

• 25 (1) When a person is convicted of an offence under this Act, 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) If the convicting court does not order the forfeiture, a seized thing or the proceeds of its disposition shall be returned to its lawful owner or the person lawfully entitled to it.

• Marginal note:Retention or sale

  (3) If a fine is imposed on a person convicted of an offence under this Act, 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:Disposition by Minister

26 Any seized thing that has been forfeited under this Act to Her Majesty in right of Canada or abandoned by its owner may be dealt with and disposed of as the Minister may direct.

Marginal note:Application of fines

• 26.1 (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 marine conservation 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:Orders of court

• 27 (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 court’s opinion, 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 any marine conservation area resources 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 prepare and implement a pollution prevention plan or an environmental emergency plan;

  • (e) directing the person to carry out, in the manner established by the Minister, monitoring of the environmental effects of any activity or undertaking on the resources of a marine conservation area or directing the person to pay, in the manner specified by the court, an amount for that purpose;

  • (f) directing the person to implement an environmental management system approved by the Minister;

  • (g) 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;

  • (h) 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 protection, conservation or restoration of marine conservation areas;

  • (i) 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;

  • (j) 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;

  • (k) 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;

  • (l) 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 any costs of assessing appropriate remedial or preventive action;

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

  • (n) 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 marine conservation areas;

  • (o) requiring the person to surrender to the Minister any permit or other authorizing instrument issued under this Act to the person;

  • (p) prohibiting the person from applying for any new permit or other authorizing instrument under this Act during any period that the court considers appropriate;

  • (q) directing the person to pay, in the manner prescribed by the court, an amount to environmental or other groups to assist in their work related to the marine conservation area where the offence was committed;

  • (r) 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

  • (s) requiring the person to comply with any other conditions that the court considers appropriate.

• Marginal note:Publication

  (1.1) If a person fails to comply with an order made under paragraph (1)(i), 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

  (1.2) If the court makes an order under paragraph (1)(h) or (l) directing a person to pay an amount to Her Majesty in right of Canada, or if the Minister incurs publication costs under subsection (1.1), 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

  (1.3) If the court makes an order under paragraph (1)(l) directing a person to pay an amount to another person, other than to Her Majesty in right of Canada, and the amount is not paid without delay, 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 permit, etc.

  (1.4) If the court makes an order under paragraph (1)(o), any permit or other authorizing instrument 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:Suspended sentence

  (2) Where a person is convicted of an offence under this Act and the court suspends the passing of sentence under paragraph 731(1)(a) of the Criminal Code, the court may, in addition to any probation order made under that paragraph, make an order referred to in subsection (1).

• Marginal note:Imposition of sentence

  (3) If the person does not comply with the order or is convicted of another offence, the court may, within three years after the order was made, on the application of the prosecution, impose any sentence that could have been imposed if the passing of sentence had not been suspended.

• Marginal note:Coming into force and duration of order

  (4) 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.