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Greenhouse Gas Pollution Pricing Act (S.C. 2018, c. 12, s. 186)

Act current to 2022-11-16 and last amended on 2022-10-11. Previous Versions

PART 2Industrial Greenhouse Gas Emissions (continued)

DIVISION 4Offences and Punishment (continued)

Offences (continued)

Marginal note:Determination of small revenue organization status

 For the purposes of sections 232 and 233, a court may determine an organization to be a small revenue organization if the court is satisfied that the organization’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

 The court may impose a fine that is less than the minimum amount provided for in subsection 232(2), (3) or (4) if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court must provide reasons if it imposes a fine that is less than the minimum amount provided for in any of those subsections.

Marginal note:Deeming — second and subsequent offence

  •  (1) For the purposes of subsections 232(2) to (4) and 233(2) to (4), 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 — under any Act of Parliament, or any Act of the legislature of a province, that relates to the control or pricing of greenhouse gas emissions — of a substantially similar offence.

  • Marginal note:Application

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

Marginal note:Additional fine

 If a person is convicted of an offence 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 must order the offender 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 Part.

Marginal note:Notice to shareholders

 If a corporation that has shareholders is convicted of an offence under this Part, the court must 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:Limitation period

 No proceedings by way of summary conviction in respect of an offence under this Part may be instituted more than five years after the day on which the subject matter of the proceedings arose, unless the prosecutor and the defendant agree that they may be instituted after the five years.

Marginal note:Offence for each tonne

 If the offence of contravening subsection 174(1) or paragraph 178(1)(a) is committed, the person that committed the offence is liable to be convicted for a separate offence for each CO2e tonne of a greenhouse gas that is emitted over the applicable emissions limit for which no compensation is provided by the increased-rate compensation deadline.

Marginal note:Regulations

 The Governor in Council may, by regulation, prescribe the manner in which the proceeds or any part of the proceeds resulting from the payment of a fine or the execution of an order in relation to an offence under this Part must be distributed in order to reimburse any person, government or body that has commenced the proceedings in respect of the offence for costs incurred by that person, government or body in respect of the prosecution of the offence.

Marginal note:Liability of senior officers

  •  (1) If an organization commits an offence under this Part, a senior officer of the organization 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 Part for an individual in respect of the offence committed by the organization, whether or not the organization has been prosecuted.

  • Marginal note:Definition of senior officer

    (2) In this section, senior officer means a director, partner, employee, member, agent, mandatary or contractor who plays an important role in the establishment of an organization’s policies or is responsible for managing an important aspect of its activities and, in the case of a corporation, includes its chief executive officer and its chief financial officer.

Marginal note:Proof of offence

 In any prosecution of an offence under this Part, other than an offence of contravening section 208 or subsection 225(4) or an offence under any of paragraphs 232(1)(b) and (e) to (g), it is sufficient proof of the offence to establish that it was committed by a director, partner, employee, member, agent, mandatary or contractor of the accused organization, whether or not they are identified or prosecuted for the offence.

Marginal note:Defence

 A person must not be found guilty of an offence under this Part, other than an offence of contravening section 208 or subsection 225(4) or an offence under any of paragraphs 232(1)(b) and (e) to (g), if the person establishes that they exercised all due diligence to prevent its commission.

Marginal note:Certificate of analyst

  •  (1) Subject to subsections (2) and (3), a certificate of an analyst that states the result of an analysis or examination and includes any related statement is admissible in evidence in any prosecution for an offence under this Part and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate.

  • Marginal note:Attendance of analyst

    (2) The party against whom a certificate of an analyst is produced may, with leave of the court, require the attendance of the analyst for the purposes of cross-examination.

  • Marginal note:Notice

    (3) A certificate of an analyst must not be received in evidence unless the party intending to produce it has given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the certificate.

Marginal note:Regulations

 The Governor in Council may, by regulation, designate provisions of regulations made under this Part for the purposes of paragraph 232(1)(c).

Sentencing

Marginal note:Fundamental purpose

 The fundamental purpose of sentencing for offences under this Part is to contribute — in light of the risks posed by climate change to the environment, including its biological diversity, to human health and safety and to economic prosperity — to respect for laws related to the pricing of greenhouse gas emissions through the imposition of just sanctions that have as their objectives

  • (a) the deterrence of the offender and any other person from committing offences under this Part;

  • (b) the denunciation of the unlawful conduct; and

  • (c) the reinforcement of the “polluter pays” principle.

Marginal note:Principles

  •  (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 must consider the following principles when sentencing a person that is convicted of an offence under this Part:

    • (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 offender committed the offence intentionally or recklessly;

    • (b) the offender failed to take reasonable steps to prevent the commission of the offence despite having the financial means to do so;

    • (c) 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;

    • (d) the offender committed the offence despite having been warned by an enforcement officer of the circumstances that subsequently became the subject of the offence;

    • (e) the offender has a history of non-compliance with federal or provincial legislation that relates to the control or pricing of greenhouse gas emissions; and

    • (f) 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:Reasons

    (4) 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 must give reasons for that decision.

Marginal note:Orders of court

  •  (1) If an offender has been convicted of an offence under this Part, in addition to any other punishment that may be imposed under this Part, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order having any or all of the following effects:

    • (a) prohibiting the offender from doing any act or engaging in any activity that may result in the continuation or repetition of the offence;

    • (b) directing the offender to implement a greenhouse gas emissions control or reduction system that meets a recognized Canadian or international standard;

    • (c) directing the offender to have an audit conducted by a person of a class and at the times specified by the court and directing the offender to remedy any deficiencies revealed during the audit;

    • (d) directing the offender to pay to Her Majesty in right of Canada an amount of money that the court considers appropriate for the purpose of promoting the control or reduction of greenhouse gas emissions or mitigating the effects of climate change caused by those emissions;

    • (e) 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;

    • (f) 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;

    • (g) directing the offender to post any bond or pay any amount of money into court that will ensure compliance with any order made under this section;

    • (h) directing the offender to submit to the Minister, on application by the Minister made within three years after the date of conviction, any information with respect to the offender’s activities that the court considers appropriate and just in the circumstances;

    • (i) directing the offender 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 costs of assessing appropriate remedial or preventive action;

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

    • (k) directing the offender to pay, in the manner prescribed by the court, an amount for the purpose of conducting research into climate change;

    • (l) directing the offender to pay, in the manner prescribed by the court, an amount to groups concerned with climate change — including groups concerned with the effects of climate change on the Indigenous peoples of Canada and on northern, coastal or remote communities — to assist in their work;

    • (m) directing the offender 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 climate change;

    • (n) requiring the offender to comply with any other conditions that the court considers appropriate in the circumstances for securing the offender’s good conduct and for deterring the offender and any other person from committing offences under this Part;

    • (o) requiring the offender to remit compliance units to the Minister or any other person; and

    • (p) prohibiting the offender from entering into transactions involving compliance units during any period that the court considers appropriate.

  • Marginal note:Publication

    (2) If an offender fails to comply with an order made under paragraph (1)(e), the Minister may, in the manner that the court directed the offender 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 offender.

  • Marginal note:Debt due to Her Majesty

    (3) If the court makes an order under paragraph (1)(d) or (i) directing an offender to pay an amount to Her Majesty in right of Canada, or if the Minister incurs publication costs under subsection (2), 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

    (4) If the court makes an order under subsection (1) directing an offender to pay an amount to a person other than to Her Majesty in right of Canada and the amount is not paid without delay, the 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 offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

  • Marginal note:Retirement of compliance units

    (5) If the court makes an order under paragraph (1)(o), any compliance unit that is remitted to the Minister in accordance with the order is retired from circulation.

  • Marginal note:Coming into force and duration

    (6) 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 must not continue in force for more than three years after that day unless the court provides otherwise in the order.

Marginal note:Suspended sentence

  •  (1) If a person is convicted of an offence 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 Act, make an order containing one or more of the prohibitions, directions or requirements referred to in subsection 249(1).

  • Marginal note:Imposition of sentence

    (2) If the person does not comply with the order or is convicted of another offence within three years after the order is made, the court may, 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:Application of fines

  •  (1) Subject to regulations made under section 241, all fines received by the Receiver General in respect of the commission of an offence under this Part or any amount received in accordance with an order under paragraph 249(1)(d) 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 the environment or for administering that Fund.

  • Marginal note:For greater certainty

    (2) For greater certainty, purposes related to protecting, conserving or restoring the environment include promoting the control or reduction of greenhouse gas emissions.

  • Marginal note:Recommendations of court

    (3) A court imposing a 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, including any entity that represents the interests of one or more of the Indigenous peoples of Canada, specified by the court for a purpose referred to in subsection (1).

 
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