Energy Safety and Security Act (S.C. 2015, c. 4)
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Assented to 2015-02-26
25. Section 60 of the Act is amended by adding the following after subsection (2):
Marginal note:Sentencing principles
(3) 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 found guilty 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 (4); and
(b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.
Marginal note:Aggravating factors
(4) The aggravating factors are the following:
(a) the offence caused harm or risk of harm to human health or safety;
(b) the offence caused damage or risk of damage to the environment or to environmental quality;
(c) the offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable component of the environment;
(d) the damage or harm caused by the offence is extensive, persistent or irreparable;
(e) the offender committed the offence intentionally or recklessly;
(f) the offender failed to take reasonable steps to prevent the commission of the offence;
(g) by committing the offence or failing to take action to prevent its commission, the offender increased their revenue or decreased their costs or intended to increase their revenue or decrease their costs;
(h) the offender has a history of non-compliance with federal or provincial legislation that relates to safety or environmental 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
(5) The absence of an aggravating factor set out in subsection (4) is not a mitigating factor.
Meaning of “damage”
(6) For the purposes of paragraphs (4)(b) to (d), “damage” includes loss of use value and non-use value.
Marginal note:Reasons
(7) If the court is satisfied of the existence of one or more of the aggravating factors set out in subsection (4) but decides not to increase the amount of the fine because of that factor, the court shall give reasons for that decision.
26. Section 65 of the Act is replaced by the following:
Marginal note:Order of court
65. (1) If a person is found guilty of an offence under this Act, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, in addition to any other punishment that may be imposed under this Act, make an order that has any or all of the following effects:
(a) prohibiting the offender from committing an act or engaging in an activity that may, in the opinion of the court, result in the continuation or repetition of the offence;
(b) directing the offender to take any action that the court considers appropriate to remedy or avoid any harm to the environment that results or may result from the act or omission that constituted the offence;
(c) directing the offender to carry out environmental effects monitoring in the manner established by the National Energy Board or directing the offender to pay, in the manner specified by the court, an amount of money for the purposes of environmental effects monitoring;
(d) directing the offender to make changes to their environmental management system that are satisfactory to the National Energy Board;
(e) directing the offender to have an environmental audit conducted by a person of a class and at the times specified by the National Energy Board and directing the offender to remedy any deficiencies revealed during the audit;
(f) directing the offender to pay to Her Majesty in right of Canada, for the purpose of promoting the conservation, protection or restoration of the environment, or to pay into the Environmental Damages Fund — an account in the accounts of Canada — an amount of money that the court considers appropriate;
(g) directing the offender to publish, in the manner specified by the court, the facts relating to the commission of the offence and the details of the punishment imposed, including any orders made under this subsection;
(h) directing the offender to notify, at the offender’s own cost and in the manner specified by the court, any person aggrieved or affected by the offender’s conduct of the facts relating to the commission of the offence and of the details of the punishment imposed, including any orders made under this subsection;
(i) directing the offender to post a bond or pay an amount of money into court that the court considers appropriate to ensure that the offender complies with any prohibition, direction, requirement or condition that is specified in the order;
(j) directing the offender to perform community service, subject to any reasonable conditions that may be imposed by the court;
(k) directing the offender to pay, in the manner specified by the court, an amount of money to environmental, health or other groups to assist in their work in the community where the offence was committed;
(l) directing the offender to pay, in the manner specified by the court, an amount of money to an educational institution including for scholarships for students enrolled in studies related to the environment;
(m) requiring the offender to comply with any conditions that the court considers appropriate in the circumstances for securing the offender’s good conduct and for preventing the offender from repeating the same offence or committing another offence under this Act;
(n) prohibiting the offender from taking measures to acquire an interest under the Canada Petroleum Resources Act or from applying for any new licence or other authorization under this Act during any period that the court considers appropriate.
Marginal note:Coming into force and duration of order
(2) An order made under subsection (1) comes into force on the day on which the order is made or on any other day that the court may determine, but shall not continue in force for more than three years after that day.
Marginal note:Publication
(3) If an offender does not comply with an order requiring the publication of facts relating to the offence and the details of the punishment, the National Energy Board may, in the manner that the court directed the offender, publish those facts and details and recover the costs of publication from the offender.
Marginal note:Debt due to Her Majesty
(4) If the National Energy Board incurs publication costs under subsection (3), the costs constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.
Marginal note:Variation of sanctions
65.1 (1) Subject to subsection (2), if a court has made, in relation to an offender, an order under section 65, the court may, on application by the offender or the National Energy Board, require the offender to appear before it and, after hearing the offender and the Board, vary the order in one or more of the following ways that the court considers appropriate because of a change in the offender’s circumstances since the order was made:
(a) by making changes to any prohibition, direction, requirement or condition that is specified in the order for any period or by extending the period during which the order is to remain in force, not exceeding one year; or
(b) by decreasing the period during which the order is to remain in force or by relieving the offender of compliance with any condition that is specified in the order, either absolutely or partially or for any period.
Marginal note:Notice
(2) Before making an order under subsection (1), the court may direct that notice be given to any persons that the court considers to be interested, and may hear any of those persons.
Marginal note:Subsequent applications with leave
65.2 If an application made under subsection 65.1(1) in relation to an offender has been heard by a court, no other application may be made under section 65.1 in relation to the offender except with leave of the court.
Marginal note:Recovery of fines and amounts
65.3 If a person is convicted of an offence under this Act and a fine that is imposed is not paid when required or if a court orders an offender to pay an amount under subsection 65(1) or 65.1(1), the prosecutor may, by filing the conviction or order, as the case may be, enter as a judgment the amount of the fine or the amount ordered to be paid, and costs, if any, in any court of competent jurisdiction in Canada, and the judgment is enforceable against the person in the same manner as if it were a judgment rendered against them in that court in civil proceedings.
27. The Act is amended by adding the following after section 71:
Administrative Monetary Penalties
Powers
Marginal note:Regulations
71.01 (1) The Governor in Council may make regulations
(a) designating as a violation that may be proceeded with in accordance with this Act
(i) the contravention of any specified provision of this Act or of any of its regulations,
(ii) the contravention of any direction, requirement, decision or order, or of any direction, requirement, decision or order of a specified class of directions, requirements, decisions or orders, made under this Act, or
(iii) the failure to comply with any term, condition or requirement of
(A) an operating licence or authorization or any specified class of operating licences or authorizations, or
(B) any approval, leave or exemption or any specified class of approvals, leave or exemptions granted under this Act;
(b) respecting the determination of, or the method of determining, the amount payable as the penalty, which may be different for individuals and other persons, for each violation; and
(c) respecting the service of documents required or authorized under section 71.06, 71.2 or 71.5, including the manner and proof of service and the circumstances under which documents are considered to be served.
Marginal note:Maximum penalty
(2) The amount that may be determined under any regulations made under paragraph (1)(b) as the penalty for a violation shall not be more than $25,000, in the case of an individual, and $100,000, in the case of any other person.
Marginal note:Powers
71.02 The National Energy Board may
(a) establish the form of notices of violation;
(b) designate persons or classes of persons who are authorized to issue notices of violation;
(c) establish, in respect of each violation, a short-form description to be used in notices of violation; and
(d) designate persons or classes of persons to conduct reviews under section 71.4.
Violations
Marginal note:Commission of violation
71.03 (1) Every person who contravenes or fails to comply with a provision, direction, requirement, decision or order, or term or condition the contravention of which, or the failure to comply with which, is designated to be a violation by a regulation made under paragraph 71.01(1)(a) commits a violation and is liable to a penalty of an amount to be determined in accordance with the regulations.
Marginal note:Purpose of penalty
(2) The purpose of the penalty is to promote compliance with this Act and not to punish.
Marginal note:Liability of directors, officers, etc.
71.04 If a corporation commits a violation, any director, officer, or agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to a penalty of an amount to be determined in accordance with the regulations, whether or not the corporation has been proceeded against in accordance with this Act.
Marginal note:Proof of violation
71.05 In any proceedings under this Act against a person in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee, or agent or mandatary, of the person, whether or not the employee, or agent or mandatary is identified or proceeded against in accordance with this Act.
Marginal note:Issuance and service of notice of violation
71.06 (1) If a person designated under paragraph 71.02(b) believes on reasonable grounds that a person has committed a violation, the designated person may issue a notice of violation and cause it to be served on the person.
Marginal note:Contents
(2) The notice of violation shall
(a) name the person that is believed to have committed the violation;
(b) set out the relevant facts surrounding the violation;
(c) set out the amount of the penalty for the violation;
(d) inform the person of their right, under section 71.2, to request a review with respect the amount of the penalty or the facts of the violation, and of the prescribed period within which that right is to be exercised;
(e) inform the person of the manner of paying the penalty set out in the notice; and
(f) inform the person that, if they do not exercise their right to request a review or if they do not pay the penalty, they will be considered to have committed the violation and that they are liable to the penalty set out in the notice.
Rules About Violations
Marginal note:Certain defences not available
71.07 (1) A person named in a notice of violation does not have a defence by reason that the person
(a) exercised due diligence to prevent the commission of the violation; or
(b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.
Marginal note:Common law principles
(2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under this Act applies in respect of a violation to the extent that it is not inconsistent with this Act.
Marginal note:Continuing violation
71.08 A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.
Marginal note:Violation or offence
71.09 (1) Proceeding with any act or omission as a violation under this Act precludes proceeding with it as an offence under this Act, and proceeding with it as an offence under this Act precludes proceeding with it as a violation under this Act.
Marginal note:Violations not offences
(2) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.
Marginal note:Limitation or prescription period
71.1 No notice of violation is to be issued more than two years after the day on which the matter giving rise to the violation occurred.
Reviews
Marginal note:Right to request review
71.2 A person who is served with a notice of violation may, within 30 days after the day on which it is served, or within any longer period that the National Energy Board allows, make a request to that Board for a review of the amount of the penalty or the facts of the violation, or both.
Marginal note:Correction or cancellation of notice of violation
71.3 At any time before a request for a review in respect of a notice of violation is received by the National Energy Board, a person designated under paragraph 71.02(b) may cancel the notice of violation or correct an error in it.
Marginal note:Review
71.4 (1) On receipt of a request made under section 71.2, the National Energy Board shall conduct the review or cause the review to be conducted by a person designated under paragraph 71.02(d).
Marginal note:Restriction
(2) The National Energy Board shall conduct the review if the notice of violation was issued by a person designated under paragraph 71.02(d).
Marginal note:Object of review
71.5 (1) The National Energy Board or the person conducting the review shall determine, as the case may be, whether the amount of the penalty for the violation was determined in accordance with the regulations or whether the person committed the violation, or both.
Marginal note:Determination
(2) The National Energy Board or the person conducting the review shall render a determination and the reasons for it in writing and cause the person who requested the review to be served with a copy of them.
Marginal note:Correction of penalty
(3) If the National Energy Board or the person conducting the review determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the Board or the person, as the case may be, shall correct the amount of the penalty.
Marginal note:Responsibility
(4) If the National Energy Board or the person conducting the review determines that the person who requested the review committed the violation, the person who requested the review is liable to the penalty as set out in the notice issued under section 71.06 or as set out in the determination if the amount of the penalty was corrected under subsection (3).
Marginal note:Determination final
(5) A determination made under this section is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.
Marginal note:Federal Court
(6) Despite section 28 of the Federal Courts Act, the Federal Court has exclusive original jurisdiction to hear and determine an application for judicial review of a determination made under this section by the National Energy Board.
Marginal note:Burden of proof
71.6 If the facts of a violation are reviewed, the person who issued the notice of violation shall establish, on a balance of probabilities, that the person named in it committed the violation identified in it.
Responsibility
Marginal note:Payment
71.7 If a person pays the penalty set out in a notice of violation, the person is considered to have committed the violation and proceedings in respect of it are ended.
Marginal note:Failure to act
71.8 A person that neither pays the penalty imposed under this Act nor requests a review within the period referred to in section 71.2 is considered to have committed the violation and is liable to the penalty.
Recovery of Penalties
Marginal note:Debt to Her Majesty
71.9 (1) A penalty constitutes a debt due to Her Majesty in right of Canada and may be recovered in the Federal Court or any other court of competent jurisdiction.
Marginal note:Limitation period
(2) No proceedings to recover the debt are to be instituted more than five years after the day on which the debt becomes payable.
Marginal note:Certificate
72. (1) The National Energy Board may issue a certificate of non-payment certifying the unpaid amount of any debt referred to in subsection 71.9(1).
Marginal note:Registration in Federal Court
(2) Registration in the Federal Court or in any other court of competent jurisdiction of a certificate of non-payment issued under subsection (1) has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.
General
Marginal note:Admissibility of documents
72.01 In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 71.06(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.
Marginal note:Publication
72.02 The National Energy Board may make public the nature of a violation, the name of the person who committed it and the amount of the penalty.
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