Alternative Measures Agreements
86.1 The following definitions apply in sections 86.2 to 86.95.
- alternative measures
alternative measures means measures in respect of the protection of fisheries, fish or fish habitat or the prevention of pollution, other than judicial proceedings, that are used to deal with a person who is alleged to have committed an offence under this Act. (mesures de rechange)
- Attorney General
Attorney General means either the Attorney General of Canada or the Attorney General or Solicitor General of the province in which the proceedings are taken, and includes the lawful deputy of either of them. (procureur général)
Marginal note:Use of measures
86.2 (1) Alternative measures may be used only if doing so is not inconsistent with the purpose of this Act and the following conditions are met:
(a) the alleged offence is an offence under this Act, except an offence under section 62 or 63 or any other offence referred to in any regulations made under paragraph 86.95(a);
(b) an information has been laid in respect of the offence;
(c) the Attorney General, after consulting with the Minister, is satisfied that the measures would be appropriate, having regard to the nature of the offence, the circumstances surrounding its commission and the following factors:
(i) the importance of the protection of fisheries, fish or fish habitat or the prevention of pollution,
(ii) the alleged offender’s history of compliance with this Act,
(iii) whether the offence is a repeated occurrence,
(iv) any allegation that information is being or was concealed or other attempts to subvert the purpose and requirements of this Act are being or have been made, and
(v) whether any remedial or preventive action has been taken by or on behalf of the alleged offender in relation to the offence;
(d) the alleged offender has been advised of the right to be represented by counsel;
(e) the alleged offender accepts responsibility for the act or omission that forms the basis of the offence;
(f) the alleged offender applies, in accordance with regulations made under section 86.95, to participate in the measures;
(g) the alleged offender and the Attorney General have entered into an alternative measures agreement within 180 days after the day on which the Attorney General provided the alleged offender with initial disclosure of the Crown’s evidence;
(h) the Attorney General considers that there is sufficient evidence to proceed with the prosecution of the offence; and
(i) the prosecution of the offence is not barred at law.
Marginal note:Restriction on use
(2) Alternative measures shall not be used if the alleged offender
(a) denies participation or involvement in the commission of the alleged offence; or
(b) expresses the wish to have any charge against them dealt with by the court.
Marginal note:Admissions not admissible in evidence
(3) No admission, confession or statement accepting responsibility for a given act or omission made by an alleged offender as a condition of being dealt with by alternative measures is admissible in evidence against them in any civil or criminal proceedings.
Marginal note:Dismissal of charge
(4) If alternative measures have been used, the court shall dismiss the charge laid against the alleged offender in respect of that offence if the court is satisfied on a balance of probabilities that the alleged offender has complied with the alternative measures agreement.
Marginal note:No bar to proceedings
(5) The use of alternative measures is not a bar to any proceedings against the alleged offender under this Act.
Marginal note:Laying of information, etc.
(6) This section does not prevent any person from laying an information, obtaining the issue or confirmation of any process, or proceeding with the prosecution of any offence, in accordance with the law.
Marginal note:Sentencing considerations
86.3 If an information in respect of an offence of contravening an alternative measures agreement has been laid and proceedings in respect of the alleged offence for which the agreement was entered into have been recommenced, the court imposing a sentence for either offence shall take into account any sentence that has previously been imposed for the other offence.
Marginal note:Nature of measures contained in agreement
86.4 (1) An alternative measures agreement may contain any terms and conditions, including
(a) terms and conditions having any or all of the effects set out in section 79.2 or having any of the prescribed effects that the Attorney General, after consulting with the Minister, considers appropriate; and
(b) terms and conditions relating to the costs of laboratory and field tests, travel and living expenses, costs of scientific analyses and other reasonable costs associated with supervising and verifying compliance with the agreement.
Marginal note:Supervisory bodies
(2) Any governmental or non-governmental body may supervise and verify compliance with an alternative measures agreement.
Marginal note:Duration of agreement
86.5 An alternative measures agreement comes into force on the day on which it is signed or on any later day that the agreement specifies and continues in force for the period, not exceeding five years, that the agreement specifies.
Marginal note:Filing in court for purpose of public access
86.6 (1) The Attorney General shall consult with the Minister before entering into an alternative measures agreement and shall cause the agreement to be filed, subject to subsection (5), as part of the court record of the proceedings to which the public has access, with the court in which the information was laid within 30 days after the day on which the agreement was entered into.
(2) A report relating to the administration of or compliance with an alternative measures agreement must, immediately after all the terms and conditions of the agreement have been complied with or the charges in respect of which the agreement was entered into have been dismissed, be filed with the court in which the agreement was filed.
Marginal note:Confidential information or material injury
(3) Subject to subsection (4), the following information shall be set out in a schedule to the agreement or to the report:
(a) trade secrets of any person;
(b) financial, commercial, scientific or technical information that is confidential information and that is treated consistently in a confidential manner by any person;
(c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to any person, or could reasonably be expected to prejudice any person’s competitive position; or
(d) information the disclosure of which could reasonably be expected to interfere with any person’s contractual or other negotiations.
Marginal note:Agreement on information to be in schedule
(4) The parties to an alternative measures agreement must agree on which information is information referred to in paragraphs (3)(a) to (d).
Marginal note:Schedule confidential
(5) The schedule is confidential and shall not be filed with the court.
Marginal note:Prohibition of disclosure
(6) The Minister shall not disclose any information set out in a schedule except under section 86.93 or under the Access to Information Act.
Marginal note:Stay and recommencement of proceedings
(a) the Attorney General shall, on filing the alternative measures agreement, stay the proceedings or apply to the court for an adjournment of the proceedings in respect of the offence alleged to have been committed for a period of not more than one year after the day on which the agreement expires; and
(b) proceedings stayed under paragraph (a) may be recommenced, without laying a new information or preferring a new indictment, as the case may be, by the Attorney General giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered, but if that notice is not given within one year after the day on which the agreement expires, the proceedings are deemed never to have been commenced.
Marginal note:Application to vary agreement
86.8 (1) The Attorney General may, on application by the alleged offender and after consulting with the Minister, vary an alternative measures agreement in one or both of the following ways, if the Attorney General considers doing so is appropriate owing to a material change in the circumstances since the agreement was entered into or last varied:
(a) by making any changes to the agreement or to its terms and conditions; and
(b) by decreasing the period during which the agreement is to remain in force or relieving the alleged offender, either absolutely or partially or for any period that the Attorney General considers appropriate, of compliance with any term or condition that the agreement specifies.
Marginal note:Filing of varied agreement
(2) Subject to subsection 86.6(5), an agreement that has been varied shall be filed with the court in which the original agreement was filed.
86.9 Sections 86.91 to 86.93 apply only to alleged offenders who have entered into an alternative measures agreement, regardless of the degree of their compliance with its terms and conditions.
Marginal note:Records of police forces and investigative bodies
86.91 (1) A record that relates to an offence under this Act that is alleged to have been committed, including the original or a copy of any fingerprints or photographs of the alleged offender, may be kept by any police force or body responsible for, or participating in, the investigation of the offence.
Marginal note:Disclosure by fishery officer, fishery guardian or inspector
(2) A fishery officer, fishery guardian or inspector may disclose to any person any information in a record kept under subsection (1) that it is necessary to disclose in the conduct of the investigation of an offence under this Act.
Marginal note:Disclosure to insurance company
(3) A fishery officer, fishery guardian or inspector may disclose to an insurance company any information in a record kept under subsection (1) that it is necessary to disclose for the purpose of the insurance company’s investigation of a claim arising out of an offence under this Act that is committed or alleged to have been committed by the alleged offender to whom the record relates.
Marginal note:Government records
86.92 (1) The Minister, fishery officers, fishery guardians and inspectors and any department or agency of a government in Canada with which the Minister has entered into an agreement under section 86.94 may keep records and use information obtained as a result of the use of alternative measures
(a) for the purposes of an inspection under this Act or an investigation of any offence under this Act;
(b) in any proceedings under this Act;
(c) for the purpose of the administration of alternative measures programs; or
(d) otherwise for the purposes of the administration or enforcement of this Act.
Marginal note:Supervision and verification of records
(2) Any person who is engaged in supervising and verifying compliance with an alternative measures agreement may
(a) keep records relating to the supervision and verification; and
(b) use any information that they obtain as a result of the supervision and verification for any purpose referred to in subsection (1).
Marginal note:Disclosure of records
86.93 (1) Any record referred to in section 86.91 or 86.92 may be
(a) made available to any judge or court for any purpose that relates to proceedings relating to offences under this Act that are committed or alleged to have been committed by the alleged offender to whom the record or information relates;
(b) made available to any prosecutor, fishery officer, fishery guardian or inspector
(i) for the purpose of investigating an offence under this Act that the alleged offender is suspected on reasonable grounds of having committed, or in respect of which the alleged offender has been arrested or charged, or
(ii) for any purpose that relates to the administration of the case to which the record relates;
(c) made available to any employee of a department or agency of a government in Canada, or any agent or mandatary of that department or agency, that is
(i) engaged in the administration of alternative measures in respect of the alleged offender, or
(ii) preparing a report in respect of the alleged offender under this Act; or
(d) made available to any other person who is considered, or is within a class of persons that is considered, by a judge of a court to have a valid interest in the record, to the extent directed by the judge, if that person gives a written undertaking not to subsequently disclose the information except in accordance with subsection (2) and if the judge is satisfied that the disclosure is
(i) in the public interest for research or statistical purposes, or
(ii) in the interest of the proper administration of justice.
Marginal note:Subsequent disclosure
(2) If a record is made available to a person under subparagraph (1)(d)(i), the person may subsequently disclose information contained in the record, but shall not disclose it in any form that could reasonably be expected to identify the alleged offender to whom it relates or any other person specified by the judge.
Marginal note:Information and copies
(3) Any person to whom a record is authorized to be made available under this section may be given any information that is contained in the record and may be given a copy of any part of the record.
(4) Nothing in this section authorizes the introduction into evidence of any part of a record that would not otherwise be admissible in evidence.
(5) For greater certainty, this section does not apply to an alternative measures agreement, a varied alternative measures agreement or a report that is filed with the court in accordance with section 86.6.
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