PART 2Industrial Greenhouse Gas Emissions (continued)
DIVISION 4Offences and Punishment (continued)
Marginal note:Determination of small revenue organization status
234 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
235 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
236 (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.
(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
237 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
238 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
239 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
240 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.
241 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
242 (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
243 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.
244 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
245 (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.
(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.
246 The Governor in Council may, by regulation, designate provisions of regulations made under this Part for the purposes of paragraph 232(1)(c).
Marginal note:Fundamental purpose
247 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.
248 (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:
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
Marginal note:Absence of aggravating factor
(3) The absence of an aggravating factor set out in subsection (2) is not a mitigating factor.
(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.
- Date modified: