An Act to amend the Migratory Birds Convention Act, 1994 and the Canadian Environmental Protection Act, 1999 (S.C. 2005, c. 23)

• 8. (1) Subsection 12(1) of the Act is amended by adding the following after paragraph (h):

  • (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;

• (2) Subsection 12(1) of the Act is amended by adding the following after paragraph (i):

  • (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;

• (3) Subsection 12(1) of the Act is amended by striking out the word “and” at the end of paragraph (j) and by adding the following after paragraph (j):

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

• 9. (1) Subsections 13(1) and (2) of the Act are replaced by the following:

  Marginal note:Contravention of Act or regulations

  • 13. (1) A person or vessel commits an offence if the person or vessel contravenes

    • (a) a provision of this Act or the regulations;

    • (b) an obligation or prohibition arising from this Act or the regulations;

    • (c) an order or direction made under this Act; or

    • (d) an order, direction or decision of a court made under this Act.

  • Marginal note:Penalties

    (1.1) Every person or vessel that commits an offence is liable

    • (a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both; and

    • (b) on summary conviction, to a fine of not more than $300,000 or to imprisonment for a term of not more than six months, or to both.

  • Marginal note:Vessel of 5,000 tonnes deadweight or over

    (1.11) In the case of an offence under section 5.1 that is committed by a vessel of 5,000 tonnes deadweight or over,

    • (a) the fine imposed under paragraph (1.1)(a) shall not be less than $500,000; and

    • (b) the fine imposed under paragraph (1.1)(b) shall not be less than $100,000.

  • Marginal note:Parties to offence

    (1.2) 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, whether or not the corporation is prosecuted for the offence.

  • Marginal note:Proof of offence — corporation

    (1.3) In a prosecution of a corporation for an offence under this Act, other than an offence under paragraph 5.2(a), (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 — vessel

    (1.4) In a prosecution of a vessel for an offence under this Act, other than an offence under paragraph 5.2(a), (c) or (d), 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:Directions or orders

    (1.5) For the purpose of prosecuting a vessel for contravening a direction or order given under this Act, a direction or order given to the master or a crew member is deemed to have been given to the vessel.

  • Marginal note:Proof of offence

    (1.6) In a prosecution of a master or chief engineer of a vessel for an offence under this Act, other than an offence under paragraph 5.2(a), (c) or (d) or section 5.3, 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

    (1.7) 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

    (1.8) 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 under paragraph 5.2(a), (c) or (d) or section 5.3, shall not be found guilty of the offence.

  • Marginal note:Subsequent offences

    (2) If a person or vessel is convicted of an offence under this Act a second or subsequent time, the amount of the fine for the subsequent offence may be double the amount set out in subsection (1.1).

• (2) Subsection 13(3) of the English version of the Act is replaced by the following:

  • Marginal note:Continuing offence

    (3) A person or vessel that commits or continues an offence 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.

• (3) Subsection 13(5) of the Act is replaced by the following:

  • Marginal note:Sentencing considerations

    (4.1) A court that imposes a sentence shall take the following factors into account, in addition to any other principles that it is required to consider:

    • (a) the harm or risk of harm caused by the commission of the offence;

    • (b) whether the offender was found to have committed the offence intentionally, recklessly or inadvertently;

    • (c) whether the offender was found to have been negligent or incompetent or to have shown a lack of concern with respect to the commission of the offence;

    • (d) any property, benefit or advantage received or receivable by the offender to which, but for the commission of the offence, the offender would not have been entitled;

    • (e) any evidence from which the court may reasonably conclude that the offender has a history of non-compliance with this Act or the regulations; and

    • (f) all available sanctions that are reasonable in the circumstances, with particular attention to the circumstances of aboriginal offenders.

  • Marginal note:Additional fine

    (5) If a person or vessel is convicted of an offence and the court is satisfied that, as a result of the commission of the offence, a monetary benefit accrued to the person or to an owner or operator of the vessel, or another person incurred a monetary loss,

    • (a) the court may order the offender to pay an additional fine in an amount equal to the court’s estimate of the amount of the monetary benefit or loss; and

    • (b) the additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.

  • Marginal note:Application of fines

    (6) All fines received by the Receiver General in respect of the commission of an offence under this Act shall be received for the special purpose of protecting and conserving migratory birds or the environment and credited to the Environmental Damages Fund, an account in the accounts of Canada.

10. Subsection 14(1) of the English version of the Act is replaced by the following:

11. Section 15 of the English version of the Act is replaced by the following:

• 12. (1) The portion of section 16 of the Act before paragraph (a) is replaced by the following:

  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:

• (2) Paragraphs 16(1)(a) and (b) of the English version of the Act are replaced by the following:

  • (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;

• (3) Subsection 16(1) of the Act is amended by adding the following after paragraph (b):

  • (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;

• (4) Paragraphs 16(1)(c) and (d) of the English version of the Act are replaced by the following:

  • (c) directing the offender to publish, in a manner the court considers appropriate, the facts relating to the commission of the offence;

  • (d) directing the offender to pay the Minister or the government of a province compensation, in whole or in part, for the cost of any remedial or preventive action taken by or on behalf of the Minister or that government as a result of the commission of the offence;

• (5) Subsection 16(1) of the Act is amended by adding the following after paragraph (d):

  • (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 a manner specified by the court, an amount to an educational institution for scholarships for students enrolled in environmental studies;

• (6) Paragraphs 16(1)(e) to (h) of the English version of the Act are replaced by the following:

  • (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 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; and

  • (h) requiring the offender to comply with any other conditions that the court considers appropriate to secure the offender’s good conduct and to prevent the offender from repeating the offence or committing other offences.

• (7) Section 16 of the Act is amended by adding the following after subsection (1):

  • 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 incurred a monetary loss 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 is not paid immediately, the applicant 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.