Short Title

Marginal note:Short title

1 This Act may be cited as the Migratory Birds Convention Act, 1994.

Interpretation

Marginal note:Definitions

• 2 (1) In this Act,

  Canadian vessel

  Canadian vessel means a vessel

  • (a) that is registered, listed or licensed under the Canada Shipping Act, 2001,

  • (b) that is not registered, listed or licensed under the Canada Shipping Act, 2001 or under the laws of another state but is owned by one or more persons each of whom is

    • (i) a Canadian citizen,

    • (ii) in the case of a vessel that is not required to be registered, listed or licensed under that Act, a person who is resident and domiciled in Canada, or

    • (iii) a corporation incorporated under the laws of Canada or a province, that has its principal place of business in Canada, or

  • (c) that is not registered, listed or licensed under the Canada Shipping Act, 2001 but is owned or operated by Her Majesty in right of Canada; (bâtiment canadien)

  Chief Review Officer

  Chief Review Officer means the review officer appointed as Chief Review Officer under subsection 244(1) of the Canadian Environmental Protection Act, 1999 and includes any review officer designated under subsection 244(3) of that Act to perform the functions of the Chief Review Officer; (réviseur-chef)

  Convention

  Convention means the Convention set out in the schedule, as amended from time to time; (convention)

  conveyance

  conveyance means a vehicle, aircraft, vessel or any other contrivance that is used to move persons or goods; (moyen de transport)

  deposit

  deposit means any discharging, spraying, releasing, spilling, leaking, seeping, pouring, emitting, emptying, throwing, dumping or placing; (immersion ou rejet)

  environment

  environment means the components of the Earth and includes

  • (a) air, land and water,

  • (b) all layers of the atmosphere,

  • (c) all organic and inorganic matter and living organisms, and

  • (d) the interacting natural systems that include the components referred to in paragraphs (a) to (c); (environnement)

  fixed platform

  fixed platform means an artificial island or a marine installation or structure that is permanently attached to the seabed for the purpose of exploration or exploitation of resources or for other economic purposes; (plate-forme fixe)

  foreign national

  foreign national has the same meaning as in subsection 2(1) of the Immigration and Refugee Protection Act; (étranger)

  foreign vessel

  foreign vessel means a vessel that is not a Canadian vessel; (bâtiment étranger)

  master

  master includes every person who has command or charge of a vessel but excludes a licensed pilot within the meaning of section 1.1 of the Pilotage Act; (capitaine)

  migratory bird

  migratory bird means a migratory bird referred to in the Convention, and includes the sperm, eggs, embryos, tissue cultures and parts of the bird; (oiseau migrateur)

  Minister

  Minister means the Minister of the Environment or, in respect of any matter related to the Northern Pipeline referred to in the Northern Pipeline Act, the member of the Queen’s Privy Council for Canada designated as the Minister for the purposes of that Act; (ministre)

  nest

  nest means the nest of a migratory bird and includes parts of the nest. (nid)

  operator

  operator, in respect of a vessel, means a person other than an owner who has, either by law or by contract, the possession and use of the vessel; (exploitant)

  owner

  owner, in respect of a vessel, means an actual owner of the vessel if the vessel is not registered or listed, or a registered owner if it is registered or listed; (propriétaire)

  vessel

  vessel means a boat, ship or craft designed, used or capable of being used solely or partly for navigation in, on, through or immediately above water, without regard to the method or lack of propulsion, but does not include a fixed platform. (bâtiment)

• Marginal note:Possession

  (2) For the purposes of this Act,

  • (a) a person has anything in possession when the person has it in their personal possession or knowingly

    • (i) has it in the actual possession or custody of another person, or

    • (ii) has it in any place, whether or not that place belongs to or is occupied by the person, for their own use or benefit or for the use or benefit of another person; and

  • (b) where a person has anything in their possession or custody with the knowledge and consent of another person or other persons, it is in the possession and custody of each and all of them.

• Marginal note:Aboriginal and treaty rights

  (3) For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.

Application

Marginal note:Application

2.1 This Act applies in Canada and in the exclusive economic zone of Canada.

Her Majesty

Marginal note:Binding on Her Majesty

3 This Act is binding on Her Majesty in right of Canada or a province.

Purpose

Marginal note:Purpose

4 The purpose of this Act is to implement the Convention by protecting and conserving migratory birds — as populations and individ­ual birds — and their nests.

Prohibitions

Marginal note:Prohibition

5 Except as authorized by the regulations, no person shall, without lawful excuse,

• (a) be in possession of a migratory bird or nest; or

• (b) buy, sell, exchange or give a migratory bird or nest or make it the subject of a commercial transaction.

Marginal note:Prohibition

• 5.1 (1) No person or vessel shall deposit a substance that is harmful to migratory birds, or permit such a substance to be deposited, in waters or an area frequented by migratory birds or in a place from which the substance may enter such waters or such an area.

• Marginal note:Prohibition

  (2) No person or vessel shall deposit a substance or permit a substance to be deposited in any place if the substance, in combination with one or more substances, results in a substance — in waters or an area frequented by migratory birds or in a place from which it may enter such waters or such an area — that is harmful to migratory birds.

• Marginal note:Saving

  (3) Subsections (1) and (2) do not apply if

  • (a) the deposit is authorized under the Canada Shipping Act, 2001; or

  • (b) the substance is of a type and quantity, and the deposit is made under conditions, authorized under an Act of Parliament other than the Canada Shipping Act, 2001, or authorized by the Minister for scientific purposes.

Marginal note:Prohibition

5.2 No person shall

• (a) wilfully destroy or cause to be destroyed a document, a record or data that is required to be kept under this Act or the Canada Shipping Act, 2001, or wilfully alter or cause to be altered such a document, a record or data with intent to mislead;

• (b) make or cause to be made a false entry, or omit to make or cause to be omitted to be made a required entry, in a document, a record or data that is required to be kept under this Act or the Canada Shipping Act, 2001;

• (c) wilfully obstruct or hinder a person who is engaged in carrying out duties or functions under this Act or a person acting under their direction and control; or

• (d) knowingly provide false or misleading information or knowingly make a false or misleading statement, either orally or in writing, to a person who is engaged in carrying out duties or functions under this Act or a person acting under their direction and control.

Marginal note:Prohibition

• 5.3 (1) No Canadian employer shall dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee, or deny an employee a benefit of employment, because

  • (a) the employee, acting in good faith and on the basis of reasonable belief, disclosed to a federal minister, or any employee of the federal public administration, that the employer or another person had contravened or had intended to contravene a provision of this Act or the regulations;

  • (b) the employee, acting in good faith and on the basis of reasonable belief, refused or stated an intention to refuse to do anything that is a contravention of a provision of this Act or the regulations;

  • (c) the employee, acting in good faith and on the basis of reasonable belief, did or stated an intention to do anything that is required to be done to prevent a contravention of a provision of this Act or the regulations; or

  • (d) the employer believes that the employee will do anything referred to in paragraph (a), (b) or (c).

• Marginal note:Definition of Canadian employer

  (2) In subsection (1), Canadian employer means an employer that is a Canadian citizen, a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or a corporation incorporated under the laws of Canada or a province that has its principal place of business in Canada.

• Marginal note:Saving

  (3) Nothing in this section impairs any right of an employee either at law or under an employment contract or collective agreement.

• Marginal note:Definitions of employee and employer

  (4) In this section, employee includes an independent contractor and employer has a corresponding meaning.

Obligations

Marginal note:Obligation — owners, operators, etc.

5.4 Every master, chief engineer, owner and operator of a vessel — and, if the owner or operator is a corporation, every director and officer of the corporation who is in a position to direct or influence its policies or activities relating to conduct prohibited by section 5.1 — shall take all reasonable care to ensure that the vessel and all persons on board the vessel comply with section 5.1.

Marginal note:Obligation — directors and officers

5.5 Every director and officer of a corporation shall take all reasonable care to ensure that the corporation complies with this Act and the regulations.

Administration

Marginal note:Game officers

• 6 (1) The Minister may designate any person or class of persons to act as game officers for the purposes of this Act and the regulations, and all members of the Royal Canadian Mounted Police are game officers for the purposes of this Act and the regulations.

• Marginal note:Designation of provincial government employees

  (2) The Minister may not designate a person or class of persons employed by the government of a province unless that government agrees.

• Marginal note:Certificate of designation

  (3) Every game officer must be provided with a certificate of designation as a game officer in a form approved by the Minister and, on entering any place under this Act, the officer shall, on request, show the certificate to the person in charge or control of the place.

• Marginal note:Powers of peace officers

  (4) For the purposes of this Act and the regulations, game officers have all the powers of a peace officer, but the Minister may specify limits on those powers when designating any person or class of persons.

• Marginal note:Exemptions for law enforcement activities

  (5) For the purpose of investigations and other law enforcement activities under this Act, the Minister may, on any terms and conditions the Minister considers necessary, exempt game officers who are carrying out duties or functions under this Act, and persons acting under their direction and control, from the application of any provision of this Act or the regulations.

• Marginal note:Arrest without warrant

  (6) A game officer may arrest a person without a warrant if they believe, on reasonable grounds, that the person has committed an offence under this Act or if they find the person committing or about to commit an offence under this Act.

Marginal note:Immunity

6.1 Game officers and persons acting under a game officer’s direction and control are not personally liable for anything they do or omit to do in good faith under this Act.

Marginal note:Inspections

• 7 (1) For the purpose of verifying compliance with this Act and the regulations, a game officer may, subject to subsection (3), at any reasonable time, enter and inspect any place, including a vessel, in which they believe, on reasonable grounds, there is any thing to which this Act or the regulations apply or any document, record or data relating to the administration of this Act or the regulations, and the game officer may

  • (a) open or cause to be opened any container that the game officer believes, on reasonable grounds, contains any such thing or document;

  • (b) inspect the thing and take samples free of charge;

  • (c) require any person to produce the document for inspection or copying, in whole or in part;

  • (c.1) use or cause to be used any computer system or data processing system at the place to examine any data contained in or available to the system;

  • (c.2) reproduce or cause to be reproduced any record from the data in the form of a printout or other intelligible output;

  • (c.3) take a printout or other output for inspection or copying;

  • (c.4) use or cause to be used any copying equipment at the place to make copies of the record or document; and

  • (d) seize any thing by means of or in relation to which the game officer believes, on reasonable grounds, this Act or the regulations have been contravened or that the game officer believes, on reasonable grounds, will provide evidence of a contravention.

• Marginal note:Duty of person in charge or control

  (1.1) Every person who is in charge or control of a place that is inspected under this section shall permit a game officer and every person acting under their direction and control to do anything referred to in paragraphs (1)(c.1) to (c.4).

• Marginal note:Entry of vessels

  (1.2) Subject to subsection (3), for the purpose of verifying compliance with this Act and the regulations, a game officer who believes on reasonable grounds that a vessel has on board any thing to which this Act or the regulations apply or any document, record or data relating to the administration of this Act or the regulations may, in Canadian waters or the exclusive economic zone of Canada, board the vessel at any reasonable time and travel on it.

• Marginal note:Accommodation

  (1.3) A game officer and every person acting under their direction and control who travels on a vessel shall be carried free of charge, and the master shall provide them with suitable accommodation and food free of charge.

• Marginal note:Stopping and detaining conveyances

  (2) A game officer may, at any reasonable time, direct that a conveyance be stopped — or be moved, by the route and in the manner that the officer may specify, to a place specified by the officer where an inspection can be carried out — and the officer may, for a reasonable time, detain a conveyance.

• Marginal note:Dwelling-place

  (3) The game officer may not enter a dwelling-place except with the consent of the person in charge or control of the dwelling-place or under the authority of a warrant.

• Marginal note:Inspection warrant — dwelling place

  (4) On ex parte application, a justice, as defined in section 2 of the Criminal Code, may issue a warrant authorizing a game officer to enter a dwelling-place, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that

  • (a) the conditions for entry described in subsection (1) exist in relation to the dwelling-place;

  • (b) entry to the dwelling-place is necessary for the administration of this Act or the regulations;

  • (c) entry to the dwelling-place has been refused or there are reasonable grounds to believe that entry will be refused; and

  • (d) all reasonable attempts have been made to notify the owner or person in charge or control of the dwelling-place.

• Marginal note:Inspection warrant — non-dwellings

  (5) On ex parte application, a justice, as defined in section 2 of the Criminal Code, may issue a warrant authorizing a game officer to enter a place other than a dwelling-place, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that

  • (a) the conditions for entry described in subsection (1) exist in relation to the place;

  • (b) entry to the place is necessary for the administration of this Act or the regulations;

  • (c) entry to the place has been refused, there are reasonable grounds to believe that entry will be refused, the game officer is not able to enter without the use of force or the place is abandoned; and

  • (d) all reasonable attempts have been made to notify the owner, operator or person in charge or control of the place.

• Marginal note:Waiving notice

  (6) The justice may waive the requirement to give notice under paragraph (4)(d) or (5)(d) if the justice is satisfied that attempts to give the notice would be unsuccessful because the owner, operator or person in charge or control is absent from the justice’s jurisdiction, or that it is not in the public interest to give the notice.

• Marginal note:Person under direction and control

  (7) A person who is acting under a game officer’s direction and control may accompany a game officer who is inspecting a place under this section, may enter the place and may exercise any of the powers referred to in paragraphs (1)(b) to (c.4).

• Marginal note:Use of force

  (8) A game officer may not use force in executing a warrant under this section unless the warrant specifically authorizes the use of force.

• Marginal note:Exclusive economic zone

  (9) Every power that may be exercised in Canada under this section may be exercised in the exclusive economic zone of Canada.

• Marginal note:Consent

  (10) The consent of the Minister is required for the exercise of any power under this section in the exclusive economic zone of Canada in relation to a foreign vessel. However, for greater certainty, the consent of the Attorney General of Canada is not required.

Marginal note:Search and seizure without warrant

8 For the purpose of ensuring compliance with this Act and the regulations, a game officer may exercise the powers of search and seizure provided in section 487 of the Criminal Code without a search warrant if the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be feasible to obtain it.

Marginal note:Powers of direction and detention of vessels

• 8.1 (1) A game officer may direct a vessel to any place in Canadian waters or the exclusive economic zone of Canada or make a detention order in relation to a vessel or do both, if they have reasonable grounds to believe that the vessel or a person on board the vessel has committed, is committing or is about to commit an offence under section 5.1 in Canadian waters and that the vessel was, is being or is about to be used in connection with the commission of the offence.

• Marginal note:Powers of direction and detention of vessels

  (2) A game officer may direct a vessel to any place in Canadian waters or the exclusive economic zone of Canada or make a detention order in relation to a vessel or do both, if they have reasonable grounds to believe that

  • (a) the vessel or a person on board the vessel has committed, is committing or is about to commit an offence under section 5.1 in the exclusive economic zone of Canada and the vessel was, is being or is about to be used in connection with the commission of the offence; and

  • (b) commission of the offence will cause major damage to the environment, or an actual threat of major damage to the environment, in Canada or in the exclusive economic zone of Canada.

• Marginal note:Major damage

  (3) For greater certainty, the deposit of a substance in contravention of section 5.1 that, together with other deposits made in contravention of that section by one or more persons or vessels, has a cumulative or aggregate effect may cause major damage to the environment.

• Marginal note:Order in writing

  (4) A detention order shall be in writing and be addressed to every person at the place identified in the order who is empowered to give a clearance to the vessel.

• Marginal note:Service of order

  (5) Notice of the detention order shall be served by delivering a copy of the notice personally to the master or, if service cannot reasonably be effected personally, by posting a copy of the notice on a conspicuous part of the vessel.

• Marginal note:Duty of operator of vessel

  (6) Once notice of the detention order is served, no master, owner or operator of the vessel shall order the vessel to contravene the order.

• Marginal note:Duty of persons empowered to give clearance

  (7) Subject to subsection (8), no person who has received notice of the detention order shall give clearance to the vessel to which the order relates.

• Marginal note:When clearance may be given

  (8) A person who has received notice of the detention order may give clearance to the vessel to which the order relates if

  • (a) neither the vessel nor any person is charged with the offence that gave rise to the making of the order within 30 days after the day on which the order is made;

  • (b) within 30 days after the day on which the order is made, the vessel or a person is charged with the offence and every accused has appeared in Canada to answer to the charge;

  • (c) Her Majesty in right of Canada is given security, in a form determined by the Attorney General of Canada, for payment of the maximum fine that might be imposed as a result of a conviction of every accused and costs that might be incurred in proceedings in connection with the charge or charges, or payment of any lesser amount that is approved by the Attorney General of Canada;

  • (d) all proceedings in respect of the offence that gave rise to the making of the order are discontinued; or

  • (e) the order is rescinded by a game officer.

• Marginal note:Consent of Attorney General of Canada

  (9) The powers to direct and detain a vessel may not be exercised in the exclusive economic zone of Canada in relation to a foreign vessel without the consent of the Attorney General of Canada.

• Marginal note:Foreign state to be notified

  (10) If a vessel to which a detention order relates is registered in a foreign state, that state is to be notified that the order was made.

Marginal note:Right of passage

8.2 A person who is engaged in carrying out duties or functions under this Act and any person acting under their direction and control may enter on and pass through or over private property without being liable for doing so and without any person having the right to object to that use of the property.

Marginal note:Assistance

8.3 An owner, operator or person in charge or control of a place entered by a game officer under this Act, and every person found in the place, shall

• (a) give the game officer and every person under their direction and control all reasonable assistance to enable the game officer to carry out their duties and functions under this Act; and

• (b) provide the game officer and every person under their direction and control with any information relating to the administration of this Act and the regulations that the game officer may reasonably require.

Marginal note:Custody of things seized

• 9 (1) Subject to subsections (2) and (3), where a game officer seizes a thing under this Act or under a warrant issued under the Criminal Code,

  • (a) sections 489.1 and 490 of the Criminal Code apply; and

  • (b) the game officer, or any person that the officer may designate, shall retain custody of the thing subject to any order made under section 490 of the Criminal Code.

• Marginal note:Forfeiture where ownership not ascertainable

  (2) Where the lawful ownership of or entitlement to the seized thing cannot be ascertained within thirty days after its seizure, the thing, or any proceeds of its disposition, are forfeited to

  • (a) Her Majesty in right of Canada, if the thing was seized by a game officer employed in the federal public administration; or

  • (b) Her Majesty in right of a province, if the thing was seized by a game officer employed by the government of that province.

• Marginal note:Perishable things

  (3) Where the seized thing is perishable, the game officer may dispose of it or destroy it, and any proceeds of its disposition must be

  • (a) paid to the lawful owner or person lawfully entitled to possession of the thing, unless proceedings under this Act are instituted within ninety days after its seizure; or

  • (b) retained by the game officer pending the outcome of the proceedings.

• Marginal note:Abandonment

  (4) The lawful owner of the seized thing may abandon it to Her Majesty in right of Canada or a province.

Marginal note:Disposition by Minister

10 Any thing that has been forfeited or abandoned under this Act must be dealt with and disposed of as the Minister may direct.

Marginal note:Liability for costs

11 If a thing is seized under this Act or under a warrant issued under the Criminal Code, the person who owned the thing at the time it was seized, the person who had charge or control of the thing immediately before it was seized and the person who possessed it immediately before it was seized are jointly and severally, or solidarily, liable for all the costs of seizure, detention, maintenance and forfeiture, including any destruction or disposal costs, incurred by Her Majesty in right of Canada in relation to the thing in excess of any proceeds of its disposition, if any.

Marginal note:Delegation by Minister

11.1 The Minister may delegate to any minister of the Crown in right of Canada or of a province or to any person who is employed by the Government of Canada, the government of a province or any other government in Canada any power conferred on the Minister under this Act relating to its enforcement or the issuance, renewal, revocation and suspension of permits. The minister or other person to whom the power is delegated may then exercise the power subject to any terms and conditions that the Minister specifies.

Marginal note:Definition of order

11.2 For the purpose of sections 11.21 to 11.3, order means a compliance order issued under section 11.21.

Marginal note:Compliance order

• 11.21 (1) Whenever, during the course of an inspection or a search, a game officer has reasonable grounds to believe that any provision of this Act or the regulations has been contravened by a person that is continuing the commission of the offence, or that any of those provisions are likely to be contravened, the game officer may issue a compliance order directing any person described in subsection (2) to take any of the measures referred to in subsection (3) that are reasonable in the circumstances and consistent with the protection and conservation of migratory birds and their nests and with public safety in order to cease or refrain from committing the alleged contravention.

• Marginal note:Persons subject to order

  (2) Subsection (1) applies to any person who

  • (a) owns or has the charge, management or control of the substance to which the alleged contravention relates or the property on which the substance is located;

  • (b) causes or contributes to the alleged contravention; or

  • (c) is likely to cause or contribute to the alleged contravention.

• Marginal note:Specific measures

  (3) The order may specify that the person to whom the order is directed take one or more of the following measures:

  • (a) refrain from doing anything in contravention of this Act or the regulations, or do anything to comply with this Act or the regulations;

  • (b) stop or shut down any activity, work, undertaking or thing for a specified period;

  • (c) cease the operation of any activity or any part of a work, undertaking or thing until the game officer is satisfied that the activity, work, undertaking or thing will be operated in accordance with this Act and the regulations;

  • (d) move any conveyance to another location including, in the case of a vessel, moving the vessel into port or, in the case of an aircraft, landing the aircraft;

  • (e) unload or reload the contents of any conveyance; and

  • (f) take any other measure that the game officer considers necessary to facilitate compliance with the order or to protect or restore migratory birds or their nests, including, but not limited to,

    • (i) maintaining records on any relevant matter,

    • (ii) reporting periodically to the game officer, and

    • (iii) submitting to the game officer any information, proposal or plan specified by the game officer that sets out any action to be taken by the person with respect to the subject matter of the order.

• Marginal note:Contents of order

  (4) Subject to section 11.22, an order must be made in writing and must set out

  • (a) the name of the person or persons to whom the order is directed;

  • (b) the provision of this Act or the regulations that is alleged to have been or is likely to be contravened;

  • (c) the relevant facts surrounding the alleged contravention;

  • (d) the measures to be taken;

  • (e) the time or the day when each measure is to begin or the period during which it is to be carried out;

  • (f) subject to subsection (5), the duration of the order;

  • (g) a statement that a request for a review may be made to the Chief Review Officer; and

  • (h) the period within which a request for a review may be made.

• Marginal note:Duration of order

  (5) An order may not be in force for a period of more than 180 days.

• Marginal note:Failing to file report

  (6) For the purposes of subsection (1), a person who commits an offence by failing to file a report required by this Act or the regulations is deemed to be continuing the commission of the offence each day that the report is not filed.

• Marginal note:Statutory Instruments Act

  (7) An order is not a statutory instrument for the purposes of the Statutory Instruments Act.

Marginal note:Exigent circumstances

• 11.22 (1) In the case of exigent circumstances, an order may be given orally on the condition that it is followed, within seven days, by a written order issued in accordance with section 11.21.

• Marginal note:Definition of exigent circumstances

  (2) For greater certainty, exigent circumstances includes circumstances in which the delay necessary to issue a written order that meets the requirements of subsection 11.21(4) would result in danger to human life or the environment, including migratory birds.

Marginal note:Notice of intent

• 11.23 (1) Except in exigent circumstances, a game officer shall, whenever practicable, before issuing an order,

  • (a) provide every person who will be subject to the order with an oral or written notice of the officer’s intention to issue it; and

  • (b) allow a reasonable opportunity in the circumstances for the person to make oral representations.

• Marginal note:Contents of notice of intent

  (2) The notice of intent to issue the order must include

  • (a) a statement of the purpose of the notice;

  • (b) a reference to the statutory authority under which the order is to be issued; and

  • (c) a statement that the party notified may make oral representations to the game officer within the period stated in the notice.

Marginal note:Compliance with order

• 11.24 (1) A person to whom an order is directed shall, immediately on receipt of the order or a copy of it, or on being directed by a game officer in an order given orally under subsection 11.22(1), comply with the order.

• Marginal note:No bar to proceedings

  (2) The issuance of or compliance with an order in respect of a person’s alleged contravention of this Act or the regulations is not a bar to any proceedings against the person under this or any other Act in relation to the alleged contravention.

Marginal note:Intervention by game officer

• 11.25 (1) If a person to whom an order is directed fails to take any measures specified in the order, a game officer may take the measures or cause them to be taken.

• Marginal note:Access to property

  (2) A game officer or other person authorized or required by a game officer to take measures under subsection (1) may enter and have access to any place or property and may do any reasonable thing that may be necessary in the circumstances.

• Marginal note:Personal liability

  (3) Any person, other than a person described in subsection 11.21(2), who provides assistance or advice in taking the measures specified in an order or who takes any measures authorized or required by a game officer under subsection (1) is not personally liable either civilly or criminally in respect of any act or omission in the course of providing assistance or advice or taking any measures under that subsection unless it is established that the person acted in bad faith.

Marginal note:Recovery of reasonable costs and expenses by Her Majesty

• 11.26 (1) Her Majesty in right of Canada may recover the costs and expenses of and incidental to any measures taken under subsection 11.25(1) from

  • (a) any person referred to in paragraph 11.21(2)(a); or

  • (b) any person referred to in paragraph 11.21(2)(b) to the extent of the person’s negligence in causing or contributing to the alleged contravention.

• Marginal note:Costs must have been reasonably incurred

  (2) The costs and expenses may only be recovered to the extent that they can be established to have been reasonably incurred in the circumstances.

• Marginal note:Liability

  (3) The persons referred to in subsection (1) are jointly and severally, or solidarily, liable for the costs and expenses referred to in that subsection.

• Marginal note:Limitation

  (4) A person referred to in paragraph 11.21(2)(b) may not be held liable under subsection (3) to an extent greater than the extent of their negligence in causing or contributing to the alleged contravention.

• Marginal note:Procedure

  (5) A claim under this section may be sued for and recovered by Her Majesty in right of Canada with costs in proceedings brought or taken in the name of Her Majesty in right of Canada in any court of competent jurisdiction.

• Marginal note:Recourse or indemnity

  (6) This section does not limit or restrict any right of recourse or indemnity that a person may have against any other person.

• Marginal note:Limitation period

  (7) If events giving rise to a claim under this section occur, no proceedings in respect of the claim may be instituted more than five years after the day on which the events occur or become evident to the Minister, whichever is later.

• Marginal note:Minister’s certificate

  (8) A document purporting to have been issued by the Minister certifying the day on which the events giving rise to a claim under this section came to the knowledge of the Minister shall be received in evidence and, in the absence of any evidence to the contrary, the document is to be considered as proof of that fact without proof of the signature or of the official character of the person appearing to have signed the document and without further proof.

Marginal note:Request for review

• 11.27 (1) Any person to whom an order is directed may, by notice in writing given to the Chief Review Officer within 30 days after the day on which the person receives a copy of the written order or after the oral order is given, make a request to the Chief Review Officer for a review of the order.

• Marginal note:Extension of period for request

  (2) The Chief Review Officer may extend the period within which a request for a review may be made if, in his or her opinion, it is in the public interest to do so.

Marginal note:Variation or cancellation of order

• 11.28 (1) At any time before a notice requesting a review of an order is received by the Chief Review Officer, the game officer may, after giving reasonable notice,

  • (a) amend or suspend a term or condition of the order, or add a term or condition to, or delete a term or condition from, the order;

  • (b) cancel the order;

  • (c) correct a clerical error in the order; or

  • (d) extend the duration of the order for a period of not more than 180 days less the number of days that have passed since the day on which the order was received by the person who is subject to it.

• Marginal note:Notice of intent

  (2) Except in exigent circumstances, a game officer shall, whenever practicable, before exercising a power under paragraph (1)(a) or (d),

  • (a) provide every person who will be subject to the order with an oral or written notice of the officer’s intention to exercise the power; and

  • (b) allow a reasonable opportunity in the circumstances for the person to make oral representations.

• Marginal note:Contents of notice of intent

  (3) The notice of intent to exercise a power under paragraph (1)(a) must include

  • (a) a statement of the purpose of the notice;

  • (b) a reference to the statutory authority under which the power is to be exercised; and

  • (c) a statement that the party notified may make oral representations to the game officer within the period stated in the notice.

Marginal note:Regulations

11.29 The Minister may make regulations

• (a) prescribing the form of reporting to game officers under subparagraph 11.21(3)(f)(ii) and specifying the information required to be contained in or to accompany the report; and

• (b) of either particular or general application, respecting representations made to game officers under paragraph 11.23(1)(b) or 11.28(2)(b).

Marginal note:Review

11.3 Sections 257 to 271 of the Canadian Environmental Protection Act, 1999 apply, with any modifications that the circumstances require, to a review requested of any order.

Regulations

Marginal note:Regulations

• 12 (1) The Governor in Council may make any regulations that the Governor in Council considers necessary to carry out the purposes and provisions of this Act and the Convention, including regulations

  • (a) providing for the periods during which, and the areas in which,

    • (i) migratory birds may be killed, captured or taken,

    • (ii) nests may be damaged, destroyed, removed or disturbed, or

    • (iii) migratory birds or nests may be bought, sold, exchanged, given or made the subject of a commercial transaction;

  • (b) for limiting the number of migratory birds that a person may kill, capture or take in any period when doing so is permitted by the regulations, and providing for the manner in which those birds may then be killed, captured or taken and the equipment that may be used;

  • (c) respecting the possession of migratory birds and nests that have been killed, captured, taken or removed in accordance with the regulations;

  • (d) for granting permits to kill, capture, take, buy, sell, exchange, give or possess migratory birds, or to make migratory birds the subject of a commercial transaction;

  • (e) for granting permits to remove or eliminate migratory birds or nests where it is necessary to do so to avoid injury to agricultural interests or in any other circumstances set out in the regulations;

  • (f) respecting the issuance, renewal, revocation and suspension of permits;

  • (g) for regulating the shipment or transportation of migratory birds from one province to another province or country and providing for the imposition of conditions governing international traffic in migratory birds;

  • (h) for prohibiting the killing, capturing, injuring, taking or disturbing of migratory birds or the damaging, destroying, removing or disturbing of nests;

  • (h.1) respecting the conditions and circumstances under which migratory birds may be killed, captured, injured, taken or disturbed, or nests may be damaged, destroyed, removed or disturbed;

  • (i) prescribing protection areas for migratory birds and nests, and for the control and management of those areas;

  • (i.1) respecting documents, records and data that any person or vessel or class of persons or vessels is required to keep or provide under this Act;

  • (i.2) excluding from the application of any provision of this Act or the regulations a military vessel, a naval auxiliary vessel or a vessel that is owned or operated by a state while it is being used only on government non-commercial service;

  • (j) for charging fees for permits, leases, stamps or other authorizing documents required to carry on any activity under this Act or the regulations, and for determining the amount of the fees and the terms and conditions under which they are to be paid;

  • (j.1) defining, for the purposes of this Act, any word or expression that is used in this Act and is not defined;

  • (k) authorizing the Minister to vary or suspend the application of any regulation made under this Act if the Minister considers it necessary to do so for the conservation of migratory birds; and

  • (l) designating provisions of the regulations for the purposes of paragraphs 13(1)(c) and 13.03(1)(b).

• Marginal note:Amendments to Convention

  (2) The Minister shall, by order, amend the schedule to incorporate any amendment to the Convention as soon as is practicable after the amendment takes effect, and table any amendment in both Houses of Parliament within fifteen sitting days after the order is made.

• Marginal note:Debate in House of Commons

  (3) Any amendment tabled in both Houses of Parliament pursuant to subsection (2) shall be debated in the House of Commons within twenty sitting days after being tabled in both Houses.

Offences and Punishment

Marginal note:Offence — persons

• 13 (1) Every person commits an offence who

  • (a) contravenes section 5, subsection 5.1(1) or (2), paragraph 5.2(a), (c) or (d), subsection 5.3(1), 8.1(6), or 11.24(1);

  • (b) knowingly contravenes paragraph 5.2(b);

  • (c) contravenes any provision of the regulations designated by regulations made under paragraph 12(1)(l);

  • (d) contravenes an order made under subsection 8.1(1) or (2); or

  • (e) contravenes an order made by a court under this Act.

• Marginal note:Penalty — individuals

  (2) Every individual who commits an offence under subsection (1) is liable,

  • (a) on conviction on indictment,

    • (i) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both, and

    • (ii) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000 or to imprisonment for a term of not more than three years, or to both; or

  • (b) on summary conviction,

    • (i) for a first offence, to a fine of not less than $5,000 and not more than $300,000 or to imprisonment for a term of not more than six months, or to both, and

    • (ii) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000 or to imprisonment for a term of not more than six months, or to both.

• Marginal note:Penalty — other persons

  (3) Every person, other than an individual or a corporation referred to in subsection (4), that commits an offence under subsection (1) is liable,

  • (a) on conviction on indictment,

    • (i) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and

    • (ii) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000; or

  • (b) on summary conviction,

    • (i) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and

    • (ii) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000.

• Marginal note:Penalty — small revenue corporations

  (4) Every corporation that commits an offence under subsection (1) and that the court determines under section 13.02 to be a small revenue corporation is liable,

  • (a) on conviction on indictment,

    • (i) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and

    • (ii) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or

  • (b) on summary conviction,

    • (i) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and

    • (ii) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.

Marginal note:Offence — persons

• 13.01 (1) Every person commits an offence who

  • (a) contravenes any provision of this Act or the regulations, other than a provision the contravention of which is an offence under subsection 13(1);

  • (b) negligently contravenes paragraph 5.2(b); or

  • (c) contravenes an order or direction made under this Act, other than an order the contravention of which is an offence under subsection 13(1).

• Marginal note:Penalty — individuals

  (2) Every individual who commits an offence under subsection (1) is liable,

  • (a) on conviction on indictment,

    • (i) for a first offence, to a fine of not more than $100,000, and

    • (ii) for a second or subsequent offence, to a fine of not more than $200,000; or

  • (b) on summary conviction,

    • (i) for a first offence, to a fine of not more than $25,000, and

    • (ii) for a second or subsequent offence, to a fine of not more than $50,000.

• Marginal note:Penalty — other persons

  (3) Every person, other than an individual or a corporation referred to in subsection (4), that commits an offence under subsection (1) is liable,

  • (a) on conviction on indictment,

    • (i) for a first offence, to a fine of not more than $500,000, and

    • (ii) for a second or subsequent offence, to a fine of not more than $1,000,000; or

  • (b) on summary conviction,

    • (i) for a first offence, to a fine of not more than $250,000, and

    • (ii) for a second or subsequent offence, to a fine of not more than $500,000.

• Marginal note:Penalty — small revenue corporations

  (4) Every corporation that commits an offence under subsection (1) and that the court determines under section 13.02 to be a small revenue corporation is liable,

  • (a) on conviction on indictment,

    • (i) for a first offence, to a fine of not more than $250,000, and

    • (ii) for a second or subsequent offence, to a fine of not more than $500,000; or

  • (b) on summary conviction,

    • (i) for a first offence, to a fine of not more than $50,000, and

    • (ii) for a second or subsequent offence, to a fine of not more than $100,000.

Marginal note:Determination of small revenue corporation status

13.02 For the purpose of sections 13 and 13.01, 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:Offence — vessels

• 13.03 (1) Every vessel commits an offence that contravenes

  • (a) section 5.1;

  • (b) any provision of the regulations designated by regulations made under paragraph 12(1)(l); or

  • (c) an order or a direction made under this Act, including one made by a court.

• Marginal note:Penalty — vessels of 7 500 tonnes deadweight or over

  (2) Every vessel of 7 500 tonnes deadweight or over that commits an offence under subsection (1) is liable,

  • (a) on conviction on indictment,

    • (i) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and

    • (ii) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000; or

  • (b) on summary conviction,

    • (i) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and

    • (ii) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000.

• Marginal note:Penalty — other vessels

  (3) Every other vessel that commits an offence under subsection (1) is liable,

  • (a) on conviction on indictment,

    • (i) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and

    • (ii) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or

  • (b) on summary conviction,

    • (i) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and

    • (ii) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.

Marginal note:Offences — vessels

• 13.04 (1) Every vessel commits an offence that contravenes any provision of this Act or the regulations, other than a provision the contravention of which is an offence under subsection 13.03(1).

• Marginal note:Penalty — vessels of 7 500 tonnes deadweight or over

  (2) Every vessel of 7 500 tonnes deadweight or over that commits an offence under subsection (1) is liable,

  • (a) on conviction on indictment,

    • (i) for a first offence, to a fine of not more than $500,000, and

    • (ii) for a second or subsequent offence, to a fine of not more than $1,000,000; or

  • (b) on summary conviction,

    • (i) for a first offence, to a fine of not more than $250,000, and

    • (ii) for a second or subsequent offence, to a fine of not more than $500,000.

• Marginal note:Penalty — other vessels

  (3) Every other vessel that commits an offence under subsection (1) is liable,

  • (a) on conviction on indictment,

    • (i) for a first offence, to a fine of not more than $250,000, and

    • (ii) for a second or subsequent offence, to a fine of not more than $500,000; or

  • (b) on summary conviction,

    • (i) for a first offence, to a fine of not more than $50,000, and

    • (ii) for a second or subsequent offence, to a fine of not more than $100,000.

Marginal note:Deeming — second and subsequent offence

• 13.05 (1) For the purposes of subsections 13(2) to (4), 13.01(2) to (4), 13.03(2) and (3) and 13.04(2) and (3), a conviction for a particular offence under this Act 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 environmental or wildlife conservation or protection — 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:Relief from minimum fine

13.06 The court may impose a fine that is less than the minimum amount provided for in section 13 or 13.03, as the case may be, 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 any of those sections.

Marginal note:Additional fine

13.07 If a person or vessel 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 — or, if the offender is a vessel, the owner or operator of the vessel — acquired any property, benefit or advantage, the court shall 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 Act.

Marginal note:Notice to shareholders

13.08 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:Fundamental purpose of sentencing

13.09 The fundamental purpose of sentencing for offences under this Act is to contribute, in light of the long-standing recognition of the social, cultural and environmental importance of migratory birds, to respect for the law protecting and conserving migratory birds and their nests 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 migratory birds or their nests; and

• (c) to reinforce the “polluter pays” principle and to restore migratory birds and their habitats.

Marginal note:Sentencing principles

• 13.1 (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 migratory birds or their nests;

  • (b) the offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable population of migratory birds;

  • (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 a game 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 conservation or protection; 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:Proceedings against vessels

• 13.11 (1) The provisions of this Act and the Criminal Code relating to indictable or summary conviction offences that apply to persons apply also to vessels, with any modifications that the circumstances require.

• Marginal note:Direction binds vessel

  (2) For the purpose of prosecuting a vessel for contravening a direction or an order made under this Act, other than an order made under section 11.21, any direction or order made under this Act that is given to the master or a crew member of the vessel binds the vessel as though it had been given to the vessel.

• Marginal note:Service

  (3) If a vessel is charged with having committed an offence under this Act, the summons may be served by leaving it with the owner, operator, master or any officer of the vessel or by posting the summons on some conspicuous part of the vessel.

• Marginal note:Appearance at trial

  (4) If a vessel is charged with having committed an offence under this Act, the vessel may appear by counsel or representative. Despite the Criminal Code, if the vessel does not so appear, a court may, on proof of service of the summons, proceed to hold the trial.

• Marginal note:Proof of offence — vessel

  (5) In a prosecution of a vessel for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by a person on board the vessel, whether or not the person is identified or prosecuted for the offence.

Marginal note:Liability of directors, officers, etc., of corporation

13.12 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 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:Liability of masters, chief engineers, owners, etc.

• 13.13 (1) If a vessel commits an offence under this Act and the master, chief engineer, owner or operator of the vessel directed, authorized, assented to, acquiesced in or participated in the commission of the offence, the master, chief engineer, owner, or operator, as the case may be, is a party to the offence and is liable on conviction to the penalty provided for by this Act for an individual for the offence of contravening section 5.1, whether or not the vessel has been prosecuted or convicted.

• Marginal note:Liability of directors and officers of corporate owners of vessels

  (2) If a vessel commits an offence under this Act and the owner or operator of the vessel is a corporation, every director and officer of the corporation who directed or influenced the corporation’s policies or activities in respect of conduct that is the subject matter of the offence is a party to an offence and is liable on conviction to the penalty provided for by this Act for an individual for the offence of contravening section 5.1, whether or not the vessel has been prosecuted or convicted.

Marginal note:Proof of offence — corporation

13.14 In a prosecution of a corporation for an offence under this Act, other than an offence of contravening paragraph 5.2(a), knowingly contravening paragraph 5.2(b) or contravening paragraph 5.2(c) or (d) or section 5.4 or 5.5, it is sufficient proof of the offence to establish that it was committed by an employee, agent or mandatary of the accused, whether or not the employee, agent or mandatary is identified or prosecuted for the offence.

Marginal note:Proof of offence — master or chief engineer

13.15 In a prosecution of a master or chief engineer of a vessel for an offence under this Act, other than an offence of contravening paragraph 5.2(a), knowingly contravening paragraph 5.2(b) or contravening paragraph 5.2(c) or (d) or section 5.4 or 5.5, it is sufficient proof of the offence to establish that it was committed by a person on board the vessel, whether or not the person is identified or prosecuted for the offence.

Marginal note:Proof of offence — section 5.4

13.16 In a prosecution of an offence under section 5.4, it is sufficient proof of the offence to establish that a substance was deposited by the vessel contrary to section 5.1.

Marginal note:Due diligence

13.17 A person or vessel that establishes that they exercised due diligence to prevent the commission of an offence under this Act, other than an offence of contravening paragraph 5.2(a), (c) or (d), knowingly contravening paragraph 5.2(b) or contravening section 5.3, shall not be found guilty of the offence.

Marginal note:Continuing offence

13.18 A person or vessel that commits or continues an offence under this Act on more than one day is liable to be convicted for a separate offence for each day on which the offence is committed or continued.

Marginal note:Offences involving more than one bird or nest

13.19 If an offence under this Act involves more than one migratory bird or nest, the fine to be imposed in respect of that offence may, despite sections 13, 13.01, 13.03 and 13.04, be the total of the fines that would have been imposed if each of the migratory birds or nests had been the subject of a separate information.

Marginal note:Application of fines

• 13.2 (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 the environment 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:Forfeiture

• 14 (1) If a person or vessel is convicted of an offence, 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.

• Marginal note:Return where no forfeiture ordered

  (2) Where the convicting court does not order forfeiture, the seized thing, or the proceeds of its disposition, must be returned to its lawful owner or the person lawfully entitled to possession of it.

Marginal note:Retention or sale

15 If a fine is imposed on a person or vessel convicted of an offence, 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:Court order

• 16 (1) If a person or vessel is convicted of an offence, the court may, in addition to any punishment imposed and 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 offender from doing any act or engaging in any activity that could, in the opinion of the court, result in the continuation or repetition of the offence;

  • (b) directing the offender to take any action the court considers appropriate to remedy or avoid any harm to any migratory bird or nest that resulted or may result from the commission of the offence;

  • (b.1) directing the offender to have an environmental audit conducted by a person of a class specified by the court at the times specified by the court, and directing the offender to remedy any deficiencies revealed by the audit;

  • (b.2) directing the offender to carry out environmental effects monitoring in the manner established by the Minister, or directing the offender to pay, in the manner specified by the court, an amount for the purpose of environmental effects monitoring;

  • (b.3) directing the offender to implement an environmental management system that meets a recognized Canadian or international standard specified by the court;

  • (b.4) 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 proper management, conservation or protection of migratory birds or their habitat;

  • (b.5) directing the person to pay, in the manner prescribed by the court, an amount to environmental or other groups to assist in their work in or for a community near the place where the offence was committed;

  • (c) directing the offender to publish, in the manner directed 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;

  • (c.1) directing the offender to notify, at the offender’s own cost and in the manner directed 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;

  • (d) 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;

  • (d.1) directing the offender to pay, in a manner specified by the court, an amount to enable research to be conducted into the protection of the migratory bird populations in respect of which the offence was committed;

  • (d.2) 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 the environment;

  • (e) directing the offender to perform community service in accordance with any reasonable conditions specified in the order;

  • (f) directing the offender to submit to the Minister, on application to the court by the Minister within three years after the conviction, any information about the offender’s activities that the court considers appropriate in the circumstances;

  • (g) directing the offender to post a bond, provide surety or pay into court an amount of money that the court considers appropriate to ensure compliance with any prohibition, direction or requirement under this section;

  • (h) 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 Act;

  • (i) requiring the offender to surrender to the Minister any permit issued under this Act to the offender; and

  • (j) prohibiting the offender from applying for any new permit under this Act during any period that the court considers appropriate.

• Marginal note:Coming into force and duration of order

  (1.1) 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.

• Marginal note:Publication

  (1.2) If an offender fails to comply with an order made under paragraph (1)(c), 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

  (1.3) If the court makes an order under paragraph (1)(b.4) or (d) directing an offender to pay an amount to Her Majesty in right of Canada, or if the Minister incurs publication costs under subsection (1.2), 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

  (1.4) If the court makes an order under paragraph (1)(d) 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:Cancellation or suspension of permits

  (1.5) If the court makes an order under paragraph (1)(i), any permit 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:Compensation for loss of property

  (2) The court may also, at the time sentence is imposed and on the application of a person who suffered loss of or damage to property as a result of the commission of the offence — other than an owner or operator of a vessel that committed the offence — order the offender to pay that person compensation for the loss.

• Marginal note:Enforcement

  (3) If the amount that is ordered to be paid under paragraph (1)(d) or subsection (2) is not paid immediately, the person to whom the amount was ordered to be paid may, by filing the order, enter the amount as a judgment in the superior court of the province in which the trial was held, and the judgment is enforceable against the offender as if it were a judgment rendered against them in that court in civil proceedings.

• Marginal note:Variation of sanctions

  (4) A court that has made an order under subsection (1) in relation to an offender may, on application by the offender or the Attorney General of Canada, require the offender to appear before it and, after hearing the offender and the Attorney General, vary the order in any of the following ways that, in the court’s opinion, is appropriate because of a change in the offender’s circumstances since the order was made:

  • (a) by making changes in the order or the conditions specified in it or extending the period during which it is to remain in force for a period of not more than one year; or

  • (b) by decreasing the period during which the order is to remain in force or relieving the offender of compliance with any condition that is specified in it, either absolutely or partially, or for a specific period.

• Marginal note:Notice

  (5) Before making an order under subsection (4), the court may direct that notice be given to any person that it considers to be interested and it may hear that person.

• Marginal note:Subsequent applications with leave

  (6) If the court hears an application under subsection (4) in respect of an offender, no other application may be made under that subsection with respect to the offender except with leave of the court.

Marginal note:Suspended sentence

• 17 (1) If a person or vessel 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 paragraph, make an order under section 16.

• Marginal note:Imposition of sentence

  (2) If the person or vessel does not comply with the order or is convicted of another offence within three years after the order was 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:Civil remedies not affected

• 17.1 (1) No civil remedy for any conduct is suspended or affected by reason only that the conduct is an offence under this Act.

• Marginal note:Remedies not repealed, etc.

  (2) Nothing in this Act repeals, removes or reduces any remedy available under a law in force in Canada.

• Marginal note:Compensation for cost of remedial or preventive action

  (3) A court shall not, under paragraph 16(1)(d), order an offender to compensate a person for the cost of any remedial or preventive action referred to in that paragraph if the person is entitled to make a claim for compensation for that cost under the Marine Liability Act or the Arctic Waters Pollution Prevention Act.

• Marginal note:Compensation for loss or damage — property

  (4) A court shall not, under subsection 16(2), order an offender to pay to a person compensation for loss of or damage to property if the person is entitled to make a claim for compensation for that loss or damage under the Marine Liability Act or the Arctic Waters Pollution Prevention Act.

Marginal note:Limitation period

18 No proceedings by way of summary conviction in respect of an offence under this Act 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:Documents, records and data

18.1 In a proceeding under this Act, a document, a record or data that is required to be kept under this Act or the Canada Shipping Act, 2001 is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in it.

Marginal note:Analyst’s certificate

• 18.2 (1) In a proceeding under this Act, a certificate that appears to be signed by an analyst, that states that an article, sample or substance has been analysed or examined by the analyst and that contains the results of the analysis or examination, is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.

• Marginal note:Requiring attendance of analyst

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

• Marginal note:Notice of intention to produce certificate

  (3) No certificate may be admitted in evidence unless, before the trial, the party that intends to produce it gives reasonable notice of that intention, together with a copy of the certificate, to the party against whom it is intended to be produced.

• Marginal note:Proof of service

  (4) Service of a certificate may be proved by oral evidence given under oath by the person who claims to have served it, or by that person’s affidavit or solemn declaration.

• Marginal note:Attendance for examination

  (5) Despite subsection (4), the court may require the person who appears to have signed the affidavit or solemn declaration to appear before it for examination or cross-examination in respect of the issue of proof of service.

• Marginal note:Definition of analyst

  (6) For the purposes of this section, analyst means a person who is recognized by a laboratory or research centre as having the authority to perform the analysis or examination that is the subject of the certificate.

Marginal note:Publication of information about contraventions

• 18.21 (1) For the purpose of encouraging compliance with this Act and the regulations, the Minister shall maintain, in a registry accessible to the public, information about all convictions of corporations for offences under this Act.

• Marginal note:Retention

  (2) Information in the registry is to be maintained for a minimum of five years.

Marginal note:Minister may refuse or suspend permit

18.22 The Minister may refuse to issue a permit under this Act, or may cancel such a permit, if the applicant or the holder has been convicted of an offence under this Act.

Marginal note:Contraventions Act

18.23 If an offence under this Act is designated as a contravention under the Contraventions Act, subsection 8(5) of that Act does not apply in respect of the fine that may be established for that contravention.

Marginal note:Review

• 18.24 (1) The Minister shall, 10 years after the day on which this section comes into force and every 10 years after that, undertake a review of sections 13 to 18.23.

• Marginal note:Report to Parliament

  (2) The Minister shall, no later than one year after the day on which the review is undertaken, cause a report on the review to be tabled in each House of Parliament.

Application of Criminal Law

Marginal note:Offences deemed committed in Canada

• 18.3 (1) An act or omission that is an offence under this Act — or that is committed by or against a person who is engaged in carrying out duties or functions, or exercising a power, under this Act or a person acting under their direction and control and that would be an offence under the Criminal Code if it were committed in Canada — is deemed to be committed in Canada if it is committed in the exclusive economic zone of Canada.

• Marginal note:Offences deemed committed in Canada

  (2) An act or omission that would be an offence under this Act if it were committed in Canada — or that is committed by or against a person who is engaged in carrying out duties or functions, or exercising a power, under this Act or a person acting under their direction and control and that would be an offence under the Criminal Code if it were committed in Canada — is deemed to be committed in Canada if it is committed at any place on the seas, other than a place that is in the territorial sea or internal waters of a state other than Canada, in the course of hot pursuit of a vessel that commenced while the vessel was in Canadian waters or in the exclusive economic zone of Canada.

• Marginal note:Exercising powers of arrest, entry, etc.

  (3) Every power — including arrest, entry, search and seizure — that may be exercised in Canada in respect of an offence under this Act or under the Criminal Code may, in respect of an offence referred to in subsection (1), be exercised in the exclusive economic zone of Canada and, in respect of an offence referred to in subsection (2), be exercised at any place on the seas other than a place that is in the territorial sea or internal waters of a state other than Canada.

• Marginal note:Consent of Attorney General of Canada

  (4) The powers referred to in subsection (3) may not be exercised in relation to a foreign vessel, or to a foreign national on board a foreign vessel, without the consent of the Attorney General of Canada.

• Marginal note:Jurisdiction of justice or judge

  (5) A justice, as defined in section 2 of the Criminal Code, or a judge in any territorial division in Canada has jurisdiction to authorize an arrest, entry, search or seizure in connection with an offence referred to in subsection (1) or (2) as if the offence had been committed in that territorial division.

• Marginal note:Consent of Attorney General of Canada

  (6) A proceeding that is commenced in respect of an offence referred to in subsection (1) or (2) shall not be continued if the accused is a foreign vessel, or if the accused is a foreign national and the offence was committed while the accused was on board a foreign vessel, unless the Attorney General of Canada consents to the continuation no later than eight days after the proceeding is commenced.

Marginal note:Jurisdiction of courts

18.4 A proceeding in respect of an offence referred to in subsection 18.3(1) or (2) may be commenced in any territorial division in Canada whether or not the accused is in Canada, and the accused may be tried and punished for that offence as if the offence had been committed in that territorial division.

18.5 [Repealed, 2009, c. 14, s. 107]

Ticketable Offences

Marginal note:Procedure

• 19 (1) In addition to the procedures set out in the Criminal Code for commencing a proceeding, proceedings in respect of any offence prescribed by the regulations may be commenced by a game officer

  • (a) completing a ticket that consists of a summons portion and an information portion;

  • (b) delivering the summons portion to the accused or mailing it to the accused at the accused’s latest known address; and

  • (c) filing the information portion with a court of competent jurisdiction before the summons portion has been delivered or mailed or as soon as is practicable afterward.

• Marginal note:Content of ticket

  (2) The summons and information portions of the ticket must

  • (a) set out a description of the offence and the time and place of its alleged commission;

  • (b) include a statement, signed by the game officer who completes the ticket, that the officer has reasonable grounds to believe that the accused committed the offence;

  • (c) set out the amount of the fine prescribed for the offence by the regulations and the manner in which and period within which it may be paid;

  • (d) include a statement that if the accused pays the fine within the period set out in the ticket, a conviction will be entered and recorded against the accused; and

  • (e) include a statement that if the accused wishes to plead not guilty or for any other reason fails to pay the fine within the period set out in the ticket, the accused must appear in the court on the day and at the time set out in the ticket.

• Marginal note:Notice of forfeiture

  (3) Where a thing is seized under this Act and proceedings relating to it are commenced by way of the ticketing procedure, the game officer who completes the ticket shall give written notice to the accused that, if the accused pays the prescribed fine within the period set out in the ticket, the thing, or any proceeds of its disposition, will be immediately forfeited to Her Majesty.

• Marginal note:Consequences of payment

  (4) Where an accused to whom the summons portion of a ticket is delivered or mailed pays the prescribed fine within the period set out in the ticket,

  • (a) the payment constitutes a plea of guilty to the offence and a conviction must be entered against the accused and no further action may be taken against the accused in respect of that offence; and

  • (b) notwithstanding section 9, any thing seized from the accused under this Act in relation to the offence, or any proceeds of its disposition, are forfeited to

    • (i) Her Majesty in right of Canada, if the thing was seized by a game officer employed in the federal public administration, or

    • (ii) Her Majesty in right of a province, if the thing was seized by a game officer employed by the government of that province.

• Marginal note:Regulations

  (5) The Governor in Council may make regulations prescribing

  • (a) offences in respect of which this section applies and the manner in which the offences are to be described in tickets; and

  • (b) the amount of the fine for a prescribed offence, but the amount may not exceed $1,000.

Disclosure of Information

Marginal note:Purposes for which information may be disclosed

• 19.1 (1) Subject to the Privacy Act, information obtained in the administration or enforcement of this Act may be disclosed

  • (a) as necessary for the purposes of the administration or enforcement of this Act;

  • (b) in order to notify another Party to the Convention of an environmental emergency that has been discovered or a potential environmental risk;

  • (c) in order to notify the public of an environmental emergency that has been discovered, or a potential environmental risk, that may affect public health or public safety; or

  • (d) under an agreement or arrangement between the Government of Canada or any of its institutions and any other government in Canada, the government of a foreign state or an international organization or any of their institutions, or between the Minister and any other federal minister, if the purpose of the agreement or arrangement is

    • (i) the administration or enforcement of a law,

    • (ii) the fulfilment of the obligations of a Party under the Convention, or

    • (iii) research or statistical analysis in relation to the protection and conservation of migratory birds.

• Marginal note:Protection from civil proceeding or prosecution

  (2) Despite any other Act of Parliament, no civil or criminal proceedings lie against a federal minister or any person who acts on behalf or under the direction of a federal minister, the Government of Canada or any of its institutions, and no proceedings lie against the Crown or any institution of the Government of Canada, for the disclosure in good faith of any information under this Act or for any consequences that flow from that disclosure.

Consequential Amendment

20 [Amendment]

Repeal

21 [Repeal]