An Act respecting the protection of the Antarctic Environment

Link to law: http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2003_20/FullText.html

An Act respecting the protection of the Antarctic Environment

S.C. 2003, c. 20

Assented to 2003-10-20

An Act respecting the protection of the Antarctic Environment

SUMMARY

The purpose of this enactment is to protect the Antarctic environment, particularly by implementing the Protocol on Environmental Protection to the Antarctic Treaty.

This enactment provides a permitting regime that gives the Minister the necessary powers to ensure that the activities undertaken by Canadian expeditions, Canadian vessels and Canadian aircraft in the Antarctic are subject to an environmental impact assessment prior to their occurrence.

This enactment creates prohibitions to protect the Antarctic marine environment, specially protected areas and historic sites and monuments in the Antarctic, and species that are native to the Antarctic.

Preamble

WHEREAS Canada is a party to the Antarctic Treaty, to the Convention for the Conservation of Antarctic Seals and to the Convention on the Conservation of Antarctic Marine Living Resources;

WHEREAS the Antarctic is a natural reserve, devoted to peace and science;

AND WHEREAS the Government of Canada is committed to the comprehensive protection of the Antarctic environment and dependent and associated ecosystems;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Marginal note:Short title

1. This Act may be cited as the Antarctic Environmental Protection Act.

INTERPRETATION

Marginal note:Definitions

2. (1) The following definitions apply in this Act.

“Antarctic”

« Antarctique »

“Antarctic” means

(a) the continent of Antarctica, including its iceshelves;

(b) all islands south of 60o south latitude, including their iceshelves;

(c) all areas of the continental shelf that are adjacent to that continent or to those islands and that are south of 60o south latitude; and

(d) all sea and airspace south of 60o south latitude.

“authorized representative”

« représentant autorisé »

“authorized representative” has the same meaning as in section 2 of the Canada Shipping Act, 2001.

“Canadian”

« Canadien »

“Canadian” means

(a) a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act; or

(b) a body corporate established or continued under the laws of Canada or a province.

“Canadian aircraft”

« aéronef canadien »

“Canadian aircraft” has the same meaning as in subsection 3(1) of the Aeronautics Act.

“Canadian expedition”

« expédition canadienne »

“Canadian expedition” means a journey undertaken by a person or persons

(a) that is organized in Canada; or

(b) for which the final place of departure of the person or persons is in Canada.

“Canadian vessel”

« bâtiment canadien »

“Canadian vessel” has the same meaning as in section 2 of the Canada Shipping Act, 2001.

“conveyance”

« moyen de transport »

“conveyance” includes any vehicle, vessel or aircraft.

“master”

« capitaine »

“master” includes every person who has command or charge of a vessel but does not include a pilot.

“Minister”

« ministre »

“Minister” means the member of the Queen’s Privy Council for Canada who is designated by the Governor in Council as the Minister for the purpose of this Act.

“permit”

« permis »

“permit” means a permit issued under section 21.

“place”

« lieu »

“place” includes any platform anchored at sea, shipping container or conveyance.

“Protocol”

« Protocole »

“Protocol” means the Protocol on Environmental Protection to the Antarctic Treaty, signed at Madrid on October 4, 1991, as amended from time to time, to the extent that the amendments are binding on Canada.

“registered owner”

« propriétaire enregistré »

“registered owner” has the same meaning as in subsection 3(1) of the Aeronautics Act.

“Treaty”

« Traité »

“Treaty” means the Antarctic Treaty, signed at Washington on December 1, 1959, as amended from time to time, to the extent that the amendments are binding on Canada.

Marginal note:Same meaning

(2) Unless a contrary intention appears, words and expressions used in this Act have the same meaning as in the Treaty or the Protocol.

“Another Party to the Protocol”

(3) A reference in this Act to “another Party to the Protocol” is a reference to a Party other than Canada.

PURPOSE

Marginal note:Purpose of the Act

3. The purpose of this Act is to protect the Antarctic environment, particularly by implementing the Protocol.

APPLICATION

Marginal note:Her Majesty

4. This Act is binding on Her Majesty in right of Canada and of a province.

Marginal note:Non-application to Canadian Forces

5. This Act does not apply to a member of the Canadian Forces acting in that capacity or in respect of a vessel, facility or aircraft of the Canadian Forces or a foreign military force or in respect of any other vessel, facility or aircraft that is under the command, control or direction of the Canadian Forces.

Marginal note:Non-application of the Canadian Environmental Assessment Act

6. The Canadian Environmental Assessment Act does not apply to a project, within the meaning of subsection 2(1) of that Act, if the project is to be carried out in the Antarctic.

PROHIBITIONS

Marginal note:Canadian expeditions

7. (1) No person who is on a Canadian expedition shall be in the Antarctic except in accordance with a permit or under the written authorization of another Party to the Protocol.

Marginal note:Exceptions

(2) Subsection (1) does not apply to a person who is

(a) travelling through, on or above the high seas to an immediate destination outside the Antarctic; or

(b) in the Antarctic for the sole purpose of fishing for profit.

Marginal note:Canadian stations

8. No person shall be in a Canadian station in the Antarctic except in accordance with a permit.

Marginal note:Canadian vessels

9. (1) No Canadian vessel shall be in the Antarctic except in accordance with a permit or under the written authorization of another Party to the Protocol.

Marginal note:Exceptions

(2) Subsection (1) does not apply to a Canadian vessel that is

(a) travelling through or on the high seas to an immediate destination outside the Antarctic; or

(b) in the Antarctic for the sole purpose of fishing for profit.

Marginal note:Canadian aircraft

10. (1) No person shall operate a Canadian aircraft in the Antarctic except in accordance with a permit or under the written authorization of another Party to the Protocol.

Marginal note:Exception

(2) Subsection (1) does not apply in respect of a Canadian aircraft travelling to an immediate destination outside the Antarctic.

Marginal note:Mineral resources

11. No Canadian or Canadian vessel shall, in the Antarctic, conduct any activity relating to mineral resources, including the recovery or exploitation of, or the prospecting or exploration for, mineral resources. This does not prohibit scientific research conducted in accordance with a permit or under the written authorization of another Party to the Protocol.

Marginal note:Native species

12. (1) Except in accordance with a permit or under the written authorization of another Party to the Protocol, no Canadian shall, in the Antarctic,

(a) kill, injure, capture, handle or molest a native mammal or native bird;

(b) remove or damage native plants in a manner that significantly affects their local distribution or abundance;

(c) fly or land a helicopter or other aircraft in a manner that disturbs any concentration of native birds or seals;

(d) use a vehicle or vessel, including a hovercraft and a small boat, in a manner that disturbs any concentration of native birds or seals;

(e) use an explosive or firearm in a manner that disturbs any concentration of native birds or seals;

(f) while on foot, wilfully disturb a breeding or moulting native bird;

(g) while on foot, wilfully disturb any concentration of native birds or seals;

(h) significantly damage any concentration of terrestrial native plants by landing an aircraft, driving a vehicle or walking on it, or in any other manner; or

(i) engage in any activity that results in the significant adverse modification of the habitat of any species or population of native mammals, native birds, native plants or native invertebrates.

Marginal note:Definitions

(2) The following definitions apply in subsection (1).

“native bird”

« oiseau indigène »

“native bird” means a member, at any stage of its life cycle, including eggs, of any species of the class Aves that is indigenous to the Antarctic or that occurs there seasonally through natural migrations.

“native invertebrate”

« invertébré indigène »

“native invertebrate” means any terrestrial or freshwater invertebrate, at any stage of its life cycle, that is indigenous to the Antarctic.

“native mammal”

« mammifère indigène »

“native mammal” means a member of any species of the class Mammalia that is indigenous to the Antarctic or that occurs there seasonally through natural migrations.

“native plant”

« plante indigène »

“native plant” means any terrestrial or freshwater vegetation, including bryophytes, lichens, fungi and algae, at any stage of its life cycle, including seeds and other propagules, that is indigenous to the Antarctic.

Marginal note:Introduction of non-native species

13. (1) No Canadian or Canadian vessel shall introduce into the Antarctic any animal or plant of a species that is not indigenous to the Antarctic, except in accordance with a permit or under the written authorization of another Party to the Protocol.

Marginal note:Exceptions

(2) Subsection (1) does not apply in respect of

(a) any bird or mammal that occurs in the Antarctic seasonally through natural migrations; or

(b) food other than poultry or live animals.

Marginal note:Specified substances and products

14. No Canadian or Canadian vessel shall introduce into the Antarctic any substance or product specified in the regulations.

Marginal note:Specially protected areas

15. No Canadian or Canadian vessel shall be in an Antarctic specially protected area designated by the regulations except in accordance with a permit or under the written authorization of another Party to the Protocol.

Marginal note:Historic sites and monuments

16. No Canadian or Canadian vessel shall damage, destroy or remove any part of an historic site or monument in the Antarctic designated by the regulations.

Marginal note:Waste disposal

17. (1) No Canadian shall dispose of waste in the Antarctic except in accordance with a permit or under the written authorization of another Party to the Protocol.

Marginal note:Absolute prohibition

(2) Despite subsection (1), no Canadian shall, in the Antarctic, burn waste in the open air or dispose of waste in any ice-free area or in any fresh water system.

Marginal note:Discharge into sea

18. (1) No Canadian vessel shall, while in the Antarctic, discharge into the sea any oil or oily mixture or any food waste except in accordance with a permit or under the written authorization of another Party to the Protocol.

Marginal note:Absolute prohibition — garbage

(2) Despite subsection (1), no Canadian vessel shall, while in the Antarctic, discharge into the sea any garbage, plastic or other product or substance that is harmful to the marine environment.

Marginal note:Sewage

(3) Despite subsection (1), no Canadian vessel that is certified to carry more than 10 persons on board shall, while in the Antarctic,

(a) discharge into the sea any untreated sewage within 12 nautical miles of any land or any iceshelf; or

(b) instantaneously discharge into the sea any sewage stored in a holding tank.

Meaning of “garbage”

(4) In subsection (2), “garbage”, in respect of a vessel, means all kinds of victual, domestic and operational waste, other than fresh fish and parts of fresh fish.

Marginal note:Emergencies

19. Sections 7 to 18 do not apply in respect of emergencies involving the safety of a person, the protection of the environment or the safety of any vessel, aircraft, equipment or facility that has a significant value.

Marginal note:Things obtained in contravention of Act

20. No person or vessel in Canada, and no Canadian or Canadian vessel while in the Antarctic, shall possess, sell, offer for sale, trade, give, transport, transfer or send anything that has been obtained in contravention of this Act or the regulations.

PERMITS

Issuance

Marginal note:Issuance

21. (1) The Minister may, on application, issue permits for the purposes of this Act.

Marginal note:Application

(2) An application for a permit must be in the form and contain the information prescribed by the regulations.

Marginal note:Additional information

(3) The Minister may require an applicant for a permit to provide the Minister with any information that he or she considers necessary.

Marginal note:Conditions

(4) Subject to the regulations, the Minister may include in a permit any condition that he or she considers appropriate.

Marginal note:Minister may refuse or suspend permit

(5) The Minister may refuse to issue a permit, or may amend, suspend or cancel a permit, if he or she is of the opinion that the public interest warrants it.

Marginal note:Statutory Instruments Act

(6) A permit is not a statutory instrument for the purposes of the Statutory Instruments Act.

Marginal note:Application on behalf of others

22. (1) A person may apply for a permit on behalf of a Canadian vessel or any other person and, if a permit is issued on behalf of a vessel or person other than the permit holder, that vessel or other person is subject to the conditions of the permit to the extent that those conditions are expressed in the permit to apply to them.

Marginal note:Identification of person or vessel

(2) For the purpose of subsection (1), a Canadian vessel or person need not be expressly named in a permit in order to be subject to its conditions so long as the vessel or person is sufficiently identified in the permit, either by class or other description.

Marginal note:Deemed contravention by permit holder

(3) If a Canadian vessel or person that is not a permit holder but that is bound by a condition of a permit contravenes the condition, the holder of the permit is also deemed to have contravened that condition.

Environmental Impact Assessments

Marginal note:Preliminary environmental evaluation

23. (1) The Minister may issue a permit only if he or she is satisfied that a preliminary environmental evaluation in relation to the activities to which the permit is to relate has been conducted in accordance with the regulations.

Marginal note:Initial or comprehensive evaluation

(2) If the Minister, after having considered the preliminary evaluation, is of the opinion that the activities will likely have at least a minor or transitory impact on the environment, he or she must ensure that an initial environmental evaluation, or a comprehensive environmental evaluation, in relation to those activities is conducted in accordance with the regulations before the permit is issued.

Marginal note:Comprehensive evaluation

(3) If the Minister, after having considered an initial evaluation, is of the opinion that the activities will likely have more than a minor or transitory impact on the environment, he or she must ensure that a comprehensive environmental evaluation in relation to those activities is conducted in accordance with the regulations before a permit is issued.

Marginal note:Restriction

(4) The Minister may not issue the permit if he or she is of the opinion, after having considered the comprehensive evaluation, that the activities are likely to have a significant adverse environmental impact that cannot be justified in the circumstances.

Waste Management Plans and Emergency Plans

Marginal note:Requirement for plans

24. The Minister may issue a permit that authorizes persons on a Canadian expedition, or a Canadian vessel or Canadian aircraft, to be in the Antarctic only if the Minister is satisfied that a waste management plan and an emergency plan for the expedition, vessel or aircraft have been prepared in accordance with the regulations.

Security

Marginal note:Requirement to provide security

25. (1) The Minister may require an applicant for a permit to provide and maintain security with the Minister, in an amount specified in, or determined in accordance with, the regulations and in a form prescribed by the regulations or a form satisfactory to the Minister.

Marginal note:How security may be applied

(2) Any security may be applied by the Minister to reimburse Her Majesty in right of Canada, either fully or partially, for reasonable costs incurred by Her Majesty in preventing, mitigating or remedying any adverse environmental impact caused by the permit holder or persons or vessels bound by conditions of the permit.

REGULATIONS

Marginal note:General

26. (1) The Governor in Council may make regulations

(a) respecting applications for permits, including, but not limited to, the form of the applications, who may apply for permits and the information that must be provided in respect of permit applications;

(b) respecting the making of applications for a permit on behalf of a Canadian vessel;

(c) respecting the issuance, renewal, cancellation and suspension of permits, and the conditions that the Minister may include in a permit;

(d) respecting the activities that may be authorized by a permit;

(e) specifying substances and products for the purposes of section 14;

(f) designating Antarctic specially protected areas for the purposes of section 15;

(g) designating historic sites and monuments for the purposes of section 16;

(h) respecting environmental impact assessments for the purposes of section 23;

(i) respecting waste management plans and emergency plans for the purposes of section 24;

(j) respecting security for the purposes of section 25; and

(k) respecting any other matter that the Governor in Council considers necessary for carrying out the purposes of this Act.

Marginal note:Incorporation by reference

(2) Regulations made under subsection (1) may incorporate by reference any document, including a document prepared by an organization working under the Treaty or the Protocol or by another Party to the Protocol.

Marginal note:Amended from time to time

(3) Material may be incorporated by reference as it existed on a specified date or as amended from time to time.

Marginal note:Incorporated material is not a regulation

(4) Material that is incorporated by reference in a regulation made under this Act is not a regulation for the purposes of the Statutory Instruments Act.

Marginal note:Defence

(5) For greater certainty, no person or vessel may be convicted of an offence or subjected to a penalty for the contravention of a provision of a regulation made under this Act that incorporates material by reference unless it is proved that, at the time of the alleged contravention,

(a) the material was reasonably accessible to the person or vessel;

(b) reasonable steps had been taken to ensure that the material was accessible to persons or vessels likely to be affected by the regulation; or

(c) the material had been published in the Canada Gazette.

Marginal note:Regulations — fees

27. (1) The Minister may make regulations

(a) prescribing the fees or a scale of fees or the manner of determining the fees to be paid for issuing, amending or renewing permits;

(b) prescribing the persons or vessels or classes of persons or vessels by whom or on whose behalf the fees are to be paid, and requiring the fees to be paid by those persons, vessels or classes;

(c) exempting any person or vessel, or class of persons or vessels, from the requirement to pay any of those fees; and

(d) generally, in respect of any condition or any other matter in relation to the payment of those fees.

Marginal note:Limit

(2) Fees that are prescribed by or under regulations made under subsection (1) in respect of the issuance, amendment or renewal of permits shall in the aggregate not exceed an amount sufficient to compensate Her Majesty in right of Canada for any reasonable costs incurred by Her Majesty in carrying out those functions.

Marginal note:Recovery

28. Fees required by the regulations to be paid constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.

ENFORCEMENT IN CANADA

Enforcement Officers and Analysts

Marginal note:Designation

29. (1) The Minister may designate as an enforcement officer or analyst for the purpose of this Act or any provision of this Act any person or member of a class of persons who, in the Minister’s opinion, is qualified to be so designated.

Marginal note:Powers

(2) For the purposes of this Act, an enforcement officer in Canada has all the powers of a peace officer, but the Minister may specify limits on those powers when designating the enforcement officer.

Marginal note:Limits

(3) The Minister may limit the powers that may be exercised by an enforcement officer or analyst under this Act.

Marginal note:Production of certificate

(4) The Minister must provide every enforcement officer and analyst with a certificate of designation that includes any limits under subsection (2) or (3). On entering any place, the enforcement officer or analyst must, if so requested, produce the certificate to the person in charge of the place.

Inspections in Canada

Marginal note:Entry

30. (1) Subject to subsection (2), for the purposes of this Act, an enforcement officer may, at any reasonable time, enter any place in Canada in which the enforcement officer believes, on reasonable grounds, there is anything to which this Act applies or any document relating to its administration.

Marginal note:Dwelling-house

(2) An enforcement officer may not enter a dwelling-house without the consent of the occupant or pursuant to a warrant issued under subsection (3).

Marginal note:Warrant for inspection of dwelling-house

(3) If, on ex parte application, a justice is satisfied by information on oath that

(a) the conditions for entry described in subsection (1) exist in relation to a dwelling-house,

(b) entry to the dwelling-house is necessary for any purpose relating to the administration of this Act, and

(c) entry to the dwelling-house has been refused or there are reasonable grounds for believing that entry will be refused,

the justice may issue a warrant authorizing the enforcement officer named in it to conduct an inspection of the dwelling-house, subject to any conditions that may be specified in the warrant, and authorizing any other person named in the warrant to accompany the enforcement officer and exercise any power specified in the warrant.

Marginal note:Warrants for inspection of non-dwellings

(4) If, on ex parte application, a justice is satisfied by information on oath that

(a) the conditions for entry described in subsection (1) exist in relation to a place other than a dwelling-house,

(b) entry to the place is necessary for any purpose relating to the administration of this Act,

(c) entry to the place has been refused, the enforcement officer was not able to enter without the use of force or the place was abandoned, and

(d) subject to subsection (5), all reasonable attempts were made to notify the owner, operator or person in charge of the place,

the justice may issue a warrant authorizing the enforcement officer named in it to conduct an inspection of the place, subject to any conditions that may be specified in the warrant, and authorizing any other person named in the warrant to accompany the enforcement officer and exercise any power specified in the warrant.

Marginal note:Waiving notice

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

Marginal note:Use of force

(6) In executing a warrant issued under subsection (3) or (4), an enforcement officer shall not use force unless the use of force has been specifically authorized in the warrant.

Marginal note:Stopping and detaining conveyances

(7) For the purposes of this Act, an enforcement officer may, at any reasonable time, direct that any conveyance be stopped or be moved to a place where an inspection can be carried out and may, for a reasonable time, detain any conveyance.

Marginal note:Vessels and aircraft

(8) For the purposes of this Act but subject to subsection (2), if an enforcement officer believes on reasonable grounds that there is, on any vessels or aircraft in Canada, anything to which this Act applies or any document relating to its administration, the officer may, at any reasonable time,

(a) direct that the vessel be stopped or be moved to a place where an inspection can be carried out and may, for a reasonable time, detain the vessel;

(b) board the vessel or aircraft; or

(c) travel on the vessel or aircraft.

Marginal note:Powers of inspection

(9) In carrying out an inspection of a place under this section, an enforcement officer may, for the purposes of this Act,

(a) examine any substance, product or other thing relevant to the administration of this Act that is found in the place;

(b) open and examine any receptacle or package found that he or she believes on reasonable grounds contains any substance, product or other thing;

(c) examine any books, records, electronic data or other documents that he or she believes on reasonable grounds contain any information relevant to the administration of this Act and make copies of them or take extracts from them;

(d) take samples of anything relevant to the administration of this Act; and

(e) conduct any tests or take any measurements.

Marginal note:Analysts

(10) An analyst may, for the purposes of this Act, accompany an enforcement officer who is carrying out an inspection of a place under this section, and the analyst may, when accompanying the enforcement officer, enter the place and exercise any of the powers described in subsection (9).

Marginal note:Disposition of samples

(11) An enforcement officer or analyst who takes a sample referred to in paragraph (9)(d) may dispose of it in any manner that the officer or analyst considers appropriate.

Marginal note:Operation of computer systems and copying equipment

(12) In carrying out an inspection, an enforcement officer may

(a) use or cause to be used any computer system or data processing system at the place being inspected to examine any data contained in, or available to, the system;

(b) reproduce any record, or cause it to be reproduced from the data, in the form of a printout or other intelligible output and remove the printout or other output for examination or copying; and

(c) use or cause to be used any copying equipment at the place being inspected to make copies of any books, records, electronic data or other documents.

Marginal note:Duty of person in possession or control

(13) Every person who is in possession or control of a place being inspected under this section shall permit the enforcement officer to do anything referred to in subsection (12).

Marginal note:Assistance

(14) The owner or person in charge of a place being inspected under this section, and every person found in the place, shall

(a) give the enforcement officer or analyst all reasonable assistance to enable the officer or analyst to carry out their functions under this Act; and

(b) provide the enforcement officer or analyst with any information with respect to the administration of this Act that he or she may reasonably require.

Marginal note:Production of documents and samples

31. (1) The Minister may, for the purposes of this Act, by registered letter or by a demand served personally, require any person in Canada, within any reasonable time and in any reasonable manner that may be stipulated in the letter or demand,

(a) to produce at a place specified by the Minister any sample taken in Canada or any document; or

(b) to conduct any tests in Canada or take any measurements or samples there.

Marginal note:Compliance

(2) Any person who is required to do anything under subsection (1) shall, despite any other law to the contrary, comply with the requirement.

Search and Seizure in Canada

Marginal note:Authority to issue warrant for search and seizure

32. (1) If, on ex parte application, a justice is satisfied by information on oath that there are reasonable grounds to believe that there is in any place in Canada

(a) anything by means of or in relation to which any provision of this Act or the regulations has been contravened, or

(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence under this Act,

the justice may issue a warrant authorizing an enforcement officer, or any other person named in the warrant, to enter and search the place and to seize anything referred to in paragraph (a) or (b), subject to any conditions that may be specified in the warrant.

Marginal note:Warrant for seizure of vessel or aircraft

(2) If, on ex parte application, a justice is satisfied by information on oath that there are reasonable grounds to believe that an offence has been committed by a Canadian vessel or the pilot in command of a Canadian aircraft, he or she may issue a warrant authorizing an enforcement officer, or authorizing any other person named in the warrant, to seize the vessel or aircraft anywhere in Canada.

Marginal note:Search and seizure

(3) A person authorized by a warrant issued under subsection (1) or (2) may

(a) at any reasonable time, enter and search a place referred to in the warrant;

(b) seize and detain anything referred to in the warrant; and

(c) exercise the powers described in subsections 30(9) and (11).

Marginal note:Where warrant not necessary

(4) An enforcement officer may exercise the powers described in subsection (3) without a warrant if the conditions for obtaining the warrant exist but, by reason of exigent circumstances, it would not be practical to obtain the warrant.

Marginal note:Exigent circumstances

(5) For greater certainty, exigent circumstances include circumstances in which the delay necessary to obtain a warrant under subsection (1) or (2) would result in a danger to human life or the environment or the loss or destruction of evidence.

Marginal note:Operation of computer system and copying equipment

(6) A person authorized under this section to search a place may

(a) use or cause to be used any computer system at the place to search any data contained in or available to the computer system;

(b) reproduce any record or cause it to be reproduced from the data in the form of a printout or other intelligible output;

(c) seize any printout or other output for examination or copying; or

(d) use or cause to be used any copying equipment at the place to make copies of the record.

Marginal note:Duty of person in possession or control

(7) Every person who is in possession or control of a place where a search is carried out under this section shall permit the person carrying out the search to do anything referred to in subsection (6).

Marginal note:Custody

33. (1) Anything seized under section 32 must be delivered into the custody of a person whom the Minister designates.

Marginal note:Discharge of cargo

(2) If a thing seized under section 32 has cargo on board, the cargo may be discharged, under the supervision of

(a) the enforcement officer or other person by whom the thing was seized, or

(b) the person into whose custody the thing was delivered in accordance with subsection (1),

at the place in Canada that is capable of receiving the cargo and is nearest to the place of seizure, or at any other place that is satisfactory to the enforcement officer or other person supervising the discharge of the cargo.

Marginal note:Sale of perishable cargo

(3) If a thing seized under section 32 has cargo on board that is perishable,

(a) the enforcement officer or other person by whom the thing was seized, or

(b) the person into whose custody the thing was delivered in accordance with subsection (1)

may sell the cargo or the portion of it that is perishable, and the proceeds of the sale shall be paid to the Receiver General or shall be deposited in a bank to the credit of the Receiver General.

Marginal note:Order for delivery of cargo

(4) The owner of the cargo may apply to the Federal Court for an order requiring the person who has custody of the cargo or the proceeds of any sale of the cargo to deliver the cargo or proceeds to the owner, and the Court may make the order if it is satisfied that the applicant is the owner of the cargo to which the application relates.

Marginal note:Redelivery on deposit of security

34. (1) If a thing has been seized under section 32, the Federal Court may, with the consent of the Minister, order redelivery of the thing or delivery of the proceeds realized from a sale of any perishable cargo under subsection 33(3) to the person from whom the thing was seized if security in the form of a bond, in an amount and form satisfactory to the Minister, is given to the Minister.

Marginal note:Seized vessel etc., to be returned unless proceedings instituted

(2) Anything referred to in subsection (1) that has been seized under section 32, or any security given to the Minister under subsection (1), shall be returned or paid to the person from whom the thing was seized within 30 days after the day of its seizure unless, before the expiry of that period, proceedings are instituted in respect of an offence under this Act alleged to have been committed by the owner of the thing.

Detention in Canada

Marginal note:Seizure

35. (1) Whenever, during the course of an inspection or search, an enforcement officer has reasonable grounds to believe that an offence under this Act has been committed, the enforcement officer may seize and detain anything

(a) by means of or in relation to which the enforcement officer reasonably believes the offence occurred; or

(b) that the enforcement officer reasonably believes will afford evidence of the offence.

Marginal note:Limitation

(2) An enforcement officer shall not seize anything under subsection (1) unless the thing is required as evidence or for purposes of analysis, or unless the enforcement officer is of the opinion that the seizure is necessary in the public interest.

Marginal note:Notice of contravention

(3) An enforcement officer who has seized and detained a thing under subsection (1) shall, as soon as practicable, advise the person in whose possession it was at the time of the seizure of the provision of this Act or the regulations that the enforcement officer believes has been contravened.

Marginal note:Detention and release

(4) A thing seized under subsection (1) or section 32, other than a vessel or aircraft, shall not be detained

(a) after the owner of the thing or the person in whose possession it was at the time of the seizure applies to the enforcement officer or to the Minister for its release and the enforcement officer or the Minister is satisfied that it is not necessary in the public interest to continue to detain the thing or that the thing is not required as evidence or for purposes of analysis; or

(b) after the expiry of 90 days after the day of its seizure, unless before that time

(i) the thing has been forfeited under section 40,

(ii) proceedings have been instituted in respect of the contravention in relation to which the thing was seized, in which case it may be detained until the proceedings are finally concluded, or

(iii) the Minister has, in accordance with section 36, served or made reasonable efforts to serve notice of an application for an order extending the period during which the thing may be detained.

Marginal note:Storage of seized thing

(5) A thing seized by an enforcement officer under subsection (1) or section 32, other than a vessel, aircraft, platform or other structure, shall be kept or stored in the place where it was seized except if

(a) in the opinion of the enforcement officer,

(i) it is not in the public interest to do so, or

(ii) the thing seized, or a sample of it, is required as evidence and removal and storage of the thing seized are necessary to ensure that the thing or sample will be available as evidence in any related proceedings, or

(b) the person in whose possession it was at the time of its seizure or the person entitled to possession of the place requests the enforcement officer to have it removed to some other place,

in which case, the thing may be removed to and stored in any other place at the direction of or with the concurrence of an enforcement officer and at the expense of the person who requested that it be removed.

Marginal note:Interference with seized thing

(6) Unless authorized by an enforcement officer, no person shall remove, alter or interfere in any way with a thing seized and detained by an enforcement officer under subsection (1) or section 32, but an enforcement officer shall, at the request of the person from whom it was seized, allow that person or any person authorized by that person to examine it and, if practicable, provide a sample or copy of it to that person.

Marginal note:Application to extend period of detention

36. (1) If proceedings referred to in paragraph 35(4)(b) have not been instituted in respect of the contravention in relation to which a thing was seized under section 32 or subsection 35(1), the Minister may, before the expiry of 90 days after the day of its seizure and on serving prior notice in accordance with subsection (2) on the owner of the thing or on the person who at the time of the seizure was in possession of it, apply to a provincial court judge, as defined in section 2 of the Criminal Code, within whose territorial jurisdiction the seizure was made for an order extending the period during which it may be detained.

Marginal note:Notice

(2) The notice shall be served by personal service at least five clear days before the day on which the application is to be made, or by registered mail at least seven clear days before that day, and shall specify

(a) the provincial court in which the application is to be made;

(b) the place where and the time when the application is to be heard;

(c) the thing seized in respect of which the application is to be made; and

(d) the grounds on which the Minister intends to rely to show why there should be an extension of the period during which the thing seized may be detained.

Marginal note:Order of extension granted

(3) If, on the hearing of an application made under subsection (1), the judge is satisfied that the thing seized should continue to be detained, the judge shall order

(a) that the thing be detained for any additional period and on any conditions relating to the detention for that additional period that the judge considers proper; and

(b) on the expiry of the additional period, that the thing be restored to the person from whom it was seized or to any other person entitled to its possession unless, before the expiry of the additional period, an event referred to in subparagraph 35(4)(b)(i), (ii) or (iii) has occurred.

Marginal note:Order of extension refused

(4) If, on the hearing of an application made under subsection (1), the judge is not satisfied that the thing seized should continue to be detained, the judge shall order that, on the expiry of 90 days after the day of its seizure, it be restored to the person from whom it was seized or to any other person entitled to its possession unless, before the expiry of that period, an event referred to in subparagraph 35(4)(b)(i) or (ii) has occurred.

Detention of Canadian Vessels

Marginal note:Detention

37. (1) If an enforcement officer has reasonable grounds to believe that

(a) a Canadian vessel has committed an offence under this Act, or

(b) an authorized representative or master of a Canadian vessel has committed an offence under this Act and that a Canadian vessel was used in connection with the commission of the offence,

the enforcement officer may make a detention order in respect of the vessel.

Marginal note:Order in writing

(2) The detention order shall be in writing and be addressed to all persons at any port in Canada where the vessel to which the order relates is or will be who are empowered to give a clearance in respect of the vessel.

Marginal note:Notice of detention order

(3) Notice of the detention order shall be served on the master of the vessel in respect of which the order is made.

Marginal note:Duty of authorized representative or master

(4) If the notice has been served on the master of the vessel, the authorized representative or master of the vessel shall not give an order for the vessel to go into an area of the sea referred to in paragraph 122(2)(f) or (g) of the Canadian Environmental Protection Act, 1999 during the term of the detention order.

Marginal note:Duty of persons empowered to give clearance

(5) Subject to subsection (6), no person to whom a detention order is addressed shall, after notice of the order is received by the person, give clearance in respect of the vessel to which the order relates.

Marginal note:When clearance given

(6) A person to whom a detention order is addressed and who has received notice of the order may give clearance in respect of the vessel to which the order relates if

(a) the authorized representative or master of the vessel

(i) has not, within 30 days after the day on which the order was made, been charged with the offence that gave rise to the order, or

(ii) has, within 30 days after the day on which the order was made, been charged with that offence and appears in Canada to answer to the charge;

(b) security for payment of the maximum fine that might be imposed as a result of a conviction of the person charged with that offence and of costs related to proceedings in connection with the charge, or security for payment of any lesser amount that is approved by the Minister or a person designated by the Minister for the purpose, is given to Her Majesty in right of Canada; or

(c) proceedings in respect of the alleged offence that gave rise to the making of the detention order are discontinued.

Assistance to Enforcement Officers and Analysts

Marginal note:Right of passage

38. An enforcement officer, analyst or any other person may, while carrying out their functions under this Act, enter on and pass through or over private property without being liable for exercising that power or without the owner of the property having the right to object to that use of the property.

Marginal note:Assistance

39. The owner or the person in charge of a place entered by an enforcement officer or analyst under section 32, and every person found in the place, shall

(a) give the enforcement officer or analyst all reasonable assistance to enable the officer or analyst to carry out their functions under this Act; and

(b) provide the enforcement officer or analyst with any information with respect to the administration of this Act that the enforcement officer or analyst may reasonably require.

Forfeiture in Canada

Marginal note:Forfeiture on consent

40. (1) If an enforcement officer has seized a thing under section 32 or subsection 35(1) and the owner or person who was in lawful possession of it at the time of the seizure consents in writing at the request of the enforcement officer to its forfeiture, it is forfeited to Her Majesty in right of Canada.

Marginal note:Disposal or destruction

(2) The Minister may dispose of or destroy a thing forfeited under subsection (1) and, if the Minister so directs, the costs of the disposal or destruction shall be paid by the owner or the person who was in lawful possession of the thing at the time it was seized.

Marginal note:Forfeiture by order of court

41. (1) Subject to sections 42 and 43, if a person is convicted of an offence under this Act and anything seized under section 32 or subsection 35(1) is then being detained,

(a) the thing is, on the conviction and in addition to any punishment imposed for the offence, forfeited to Her Majesty in right of Canada if the court so directs, in which case

(i) the Minister may dispose of or destroy the thing, and

(ii) the costs of the forfeiture and disposal or destruction shall be paid by the offender; or

(b) the thing shall, on the expiry of the period for taking an appeal from the conviction or on the final conclusion of the proceedings, be restored to the person from whom it was seized or to any other person entitled to its possession on any conditions that may be imposed by order of the court and that, in the opinion of the court, are necessary to avoid the commission of a further offence under this Act.

Marginal note:Things deemed not to have been seized

(2) For the purpose of subsection (1), anything released from detention under paragraph 35(4)(a) or (b) is deemed not to have been seized under section 32 or subsection 35(1).

Marginal note:Court may order forfeiture

42. If the authorized representative of a Canadian vessel or the registered owner of a Canadian aircraft has been convicted of an offence under this Act, the convicting court may, if the vessel or aircraft was seized under section 32 or subsection 35(1), in addition to any other penalty imposed, order that the vessel or aircraft, or any security given under subsection 34(1) be forfeited, and on the making of the order, the vessel or aircraft or security is forfeited to Her Majesty in right of Canada.

Marginal note:Disposal of forfeited vessel, aircraft, etc.

43. (1) If proceedings referred to in subsection 34(2) are instituted within the period referred to in that subsection and, at the final conclusion of those proceedings, any vessel or aircraft, or any security given under subsection 34(1), is ordered to be forfeited, it may be disposed of as the Governor in Council directs.

Marginal note:Return of seized vessel, etc., where no forfeiture ordered

(2) If a thing has been seized under section 32 and proceedings referred to in subsection (1) are instituted, but the thing is not, at the final conclusion of the proceedings, ordered to be forfeited, it must be returned to the person from whom it was seized, the proceeds of any sale of the cargo under subsection 33(3) must be paid to that person and any security given to the Minister under subsection 34(1) must be returned to that person.

Marginal note:Exception

(3) If, at the conclusion of proceedings referred to in subsection (1), the person from whom the thing was seized is convicted of an offence arising out of a contravention of this Act or the regulations, the thing and any cargo or the proceeds or security may be retained until the fine is paid, or the thing and any cargo may be sold under execution in satisfaction of the fine, or the proceeds realized from the sale of the cargo or the security or any part of the cargo or security may be applied in payment of the fine.

Marginal note:Application by person claiming interest

44. (1) If a thing has been ordered to be forfeited under this Act, any person, other than a person who was a party to the proceedings that resulted in the order, who claims a right or an interest in the thing as owner, holder of a security established on property or other right in rem or holder of any other claim under Canadian law may, within 30 days after the day on which the thing is ordered to be forfeited, apply by notice in writing to the Federal Court for an order under subsection (5).

Marginal note:Date of hearing

(2) The Federal Court must fix a day for the hearing of the application.

Marginal note:Notice

(3) An applicant for an order under subsection (5) must, at least 30 days before the day fixed under subsection (2), serve a notice of the application and of the hearing on the Minister and on all other persons claiming a right or an interest in the thing that is the subject-matter of the application as owner, holder of a security established on property or other right in rem or holder of any other claim under Canadian law of whom the applicant has knowledge.

Marginal note:Notice of intervention

(4) Each person, other than the Minister, who is served with a notice under subsection (3) and who intends to appear at the hearing of the application to which the notice relates must, at least 10 days before the day fixed for the hearing, file a notice of intervention in the Registry of the Federal Court and serve a copy of the notice on the Minister and on the applicant.

Marginal note:Order declaring nature and extent of interests

(5) If, on the hearing of an application under this section, the Federal Court is satisfied that the applicant, or the intervenors, if any, or any of them,

(a) is innocent of any complicity in any conduct that caused the thing to be subject to forfeiture and of any collusion in relation to any such conduct, and

(b) exercised all reasonable care in respect of the persons permitted to obtain possession and use of the thing so as to be satisfied that it was not likely to be used contrary to the provisions of this Act or, in the case of a holder of a security established on property, other than the holder of a maritime lien or statutory right in rem, that the applicant or intervenor exercised such care with respect to the person who gave the property as security,

those of the applicant and the intervenors in respect of whom the Court is so satisfied are entitled to an order declaring that their rights or interests are not affected by the forfeiture and declaring the nature and extent of each of their rights or interests and the ranking among them.

Marginal note:Additional order

(6) If an order is made under subsection (5), the Court may, in addition, order that the thing to which the rights or interests relate be delivered to one or more of the persons found to have a right or an interest in it or that an amount equal to the value of each of the interests so declared be paid to the persons found to have those interests.

INSPECTIONS IN THE ANTARCTIC

Marginal note:Designation of inspectors

45. (1) The Minister may designate as an inspector, for the purpose of this Act or any provision of this Act, any person or any member of a class of persons who, in the Minister’s opinion, is qualified to be so designated.

Marginal note:Limits

(2) The Minister may, including on the request of the Minister of Foreign Affairs, limit the powers that may be exercised by an inspector under this Act.

Marginal note:Production of certificate

(3) The Minister must provide every inspector with a certificate of designation that includes any limits specified under subsection (2). On entering any place, the inspector must, if so requested, produce the certificate to the person in charge of the place.

Marginal note:Powers of inspectors

46. (1) Subject to subsections (2) and (6), for the purposes of this Act, an inspector may, at any reasonable time, enter any place in the Antarctic in which the inspector believes, on reasonable grounds, there is anything to which this Act applies or any document relating to its administration.

Marginal note:Dwelling-houses

(2) An inspector may not enter a dwelling-house without the consent of the occupant.

Marginal note:Stopping and detaining conveyances

(3) For the purposes of this Act, an inspector may, at any reasonable time, direct that any of the following be moved to a place where an inspection can be carried out and may, for a reasonable time, detain any of the following:

(a) a Canadian vessel or Canadian aircraft in the Antarctic; or

(b) any other conveyance in the Antarctic that is owned by a Canadian except a vessel or aircraft that is not a Canadian vessel or Canadian aircraft.

Marginal note:Powers in relation to vessels, etc.

(4) Subject to subsection (2), for the purposes of this Act, an inspector may, at any reasonable time,

(a) board a Canadian vessel or Canadian aircraft in the Antarctic; or

(b) travel on the vessel or aircraft.

Marginal note:Powers of inspectors

(5) In carrying out an inspection of a place under this section, an inspector may exercise any of the powers referred to in subsections 30(9), (11) and (12).

Marginal note:Foreign ownership

(6) An inspector may not exercise any powers under this section in respect of any station, installation, equipment, platform anchored at sea, shipping container or conveyance (other than a Canadian vessel or Canadian aircraft) that is owned by a person who is not a Canadian unless the inspector first obtains the consent of the person in charge of the station, installation, equipment, platform, container or conveyance.

Marginal note:Analysts

(7) An analyst may, for the purposes of this Act, accompany an inspector who is carrying out an inspection of a place under this section, and the analyst may, when accompanying the inspector, enter the place and exercise any of the powers referred to in subsection (5).

Marginal note:Assistance

(8) The owner of a place or a Canadian or permit holder in charge of a place being inspected under this section, and every Canadian or permit holder found in the place, shall

(a) give the inspector or analyst all reasonable assistance to enable the inspector or analyst to carry out their functions under this Act; and

(b) provide the inspector or analyst with any information with respect to the administration of this Act that he or she may reasonably require.

Marginal note:Production of documents and samples

47. (1) The Minister may, for the purposes of this Act, by registered letter or by a demand served personally, require any Canadian, or any permit holder, who is in Canada or the Antarctic, within any reasonable time and in any reasonable manner that may be stipulated in the letter or demand,

(a) to produce at a place specified by the Minister any sample taken in the Antarctic or any document; or

(b) to conduct any tests in the Antarctic or take any measurements or samples there.

Marginal note:Compliance

(2) A person who is required to do anything under subsection (1) shall, despite any other law to the contrary, comply with the requirement.

OBSTRUCTION AND FALSE INFORMATION

Marginal note:Obstruction

48. No person in Canada, and no Canadian or permit holder in the Antarctic, shall obstruct an enforcement officer, inspector or analyst or hinder any of them in carrying out their functions under this Act.

Marginal note:False or misleading information, etc.

49. No person in Canada, and no Canadian or permit holder in the Antarctic, shall, with respect to any matter related to this Act, knowingly or negligently

(a) provide any person with false or misleading information, results or samples; or

(b) file a document that contains false or misleading information.

OFFENCES AND PUNISHMENT

Marginal note:Contravention of Act and regulations

50. (1) Every person or Canadian vessel commits an offence if the person or vessel contravenes

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

(b) an obligation or a prohibition arising from this Act or the regulations, including one arising from a condition of a permit;

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

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

Marginal note:Penalties

(2) Every person or Canadian 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 $1,000,000 or to imprisonment for a term of not more than three years, or to both, and

(ii) for a second offence, to a fine of not more than $2,000,000 or to imprisonment for a term of not more than five years, or to both; or

(b) on summary conviction

(i) for a first offence, to a fine of 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 offence, to a fine of not more than $600,000 or to imprisonment for a term of not more than one year, or to both.

Marginal note:Liability of director or officer of corporation

51. (1) 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 and guilty of the offence, and is liable on conviction to the penalty provided for by this Act in respect of the offence committed by the corporation, whether or not the corporation has been prosecuted.

Marginal note:Duties of directors

(2) Every director and officer of a corporation shall take all reasonable care to ensure that the corporation complies with

(a) this Act and the regulations; and

(b) any orders and directions of, or prohibitions and requirements imposed by, any court, the Minister, enforcement officers, inspectors and analysts.

Marginal note:Liability of master

52. (1) If a Canadian vessel commits an offence under this Act, the master of the vessel is a party to and guilty of an offence, and is liable on conviction to the penalty provided for by this Act in respect of the offence committed by the vessel, whether or not the vessel has been prosecuted, if the master directed, authorized, assented to, acquiesced in or participated in the commission of the offence.

Marginal note:Duties of masters

(2) Every master of a Canadian vessel shall take all reasonable care to ensure that the vessel complies with

(a) this Act and the regulations; and

(b) orders and directions of, or prohibitions and requirements imposed by, any court, the Minister, enforcement officers, inspectors and analysts.

Marginal note:Continuing offence

53. If an offence under this Act is committed or continued on more than one day, the person or Canadian vessel that committed the offence is liable to be convicted for a separate offence for each day on which it is committed or continued.

Marginal note:Identifying authorized representative, master, etc.

54. The authorized representative or master of a Canadian vessel or the registered owner or pilot in command of a Canadian aircraft may be charged with an offence under this Act as authorized representative, master, registered owner or pilot in command of the vessel or aircraft if it is adequately identified, and no such charge is invalid by reason only that it does not name the authorized representative, master, registered owner or pilot in command.

Marginal note:Due diligence

55. (1) No person may be found guilty of an offence under this Act if it is established that the person exercised all due diligence to comply with this Act or to prevent the commission of the offence.

Marginal note:Exception

(2) Subsection (1) does not apply to an offence relating to

(a) a contravention of paragraph 12(1)(f) or (g);

(b) a contravention of section 48; or

(c) a contravention of section 49 committed knowingly.

Marginal note:No proceedings without consent

56. No proceedings in respect of an offence under this Act may be instituted except by or with the consent of the Attorney General of Canada.

Marginal note:Limitation period

57. (1) Proceedings by way of summary conviction in respect of an offence under this Act may be instituted at any time within, but not later than, two years after the day on which the Minister became aware of the subject-matter of the proceedings.

Marginal note:Minister’s certificate

(2) A document purporting to have been issued by the Minister, certifying the day on which the Minister became aware of the subject-matter of any proceedings, must be received in evidence and, in the absence of any evidence to the contrary, must 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:Documents admissible in evidence

58. (1) A document made, given or issued under this Act and appearing to be signed by an analyst is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the document without proof of the signature or official character of the person appearing to have signed the document.

Marginal note:Attendance of analyst

(2) The party against whom the document is produced may, with leave of the court, require the attendance of the analyst who signed it.

Marginal note:Notice

(3) No document referred to in subsection (1) may be received in evidence unless the party intending to produce it has given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the document.

Marginal note:Injunction

59. (1) If, on the application of the Minister, it appears to a court of competent jurisdiction that a person or Canadian vessel in Canada, or a Canadian, Canadian vessel or permit holder in the Antarctic, has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of an offence under this Act, the court may issue an injunction ordering any person or vessel named in the application

(a) to refrain from doing any act or thing that, in the opinion of the court, may constitute or be directed toward the commission of an offence under this Act; or

(b) to do any act or thing that, in the opinion of the court, may prevent the commission of an offence under this Act.

Marginal note:Notice

(2) No injunction may be issued under subsection (1) unless 48 hours notice is given to the party or parties named in the application or the urgency of the situation is such that service of notice would not be in the public interest.

Marginal note:Proof of offence

60. (1) In any prosecution of an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or prosecuted for the offence.

Marginal note:Proof of offence

(2) In any prosecution of the master of a Canadian vessel or the pilot in command of a Canadian aircraft for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by a crew member or other person on board the vessel or aircraft, whether or not the crew member or other person is identified or prosecuted for the offence.

Marginal note:Additional fine

61. If a person is convicted of an offence and the court is satisfied that monetary benefits accrued to the person as a result of the commission of the offence, the court may order the person to pay an additional fine in an amount equal to the court’s estimation of the amount of the monetary benefits, which additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.

Marginal note:Importing substances by analysts

62. The Minister may, subject to any reasonable condition specified by the Minister, authorize in writing an analyst to import, possess and use a substance for the purpose of conducting measurements, tests and research with respect to the substance.

Marginal note:Sentencing considerations

63. In addition to the principles set out in sections 718 to 718.2 of the Criminal Code and any other principles it is required to consider, a court that imposes a sentence must take the following factors into account:

(a) the unique characteristics and global importance of the Antarctic environment and dependent and associated ecosystems;

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

(c) an estimate of the total costs to remedy or reduce any damages caused by the commission of the offence;

(d) whether any remedial or preventive action has been taken or proposed by or on behalf of the offender;

(e) whether any reporting requirements under this Act or the regulations were complied with by the offender;

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

(g) whether the offender was found by the court to have been negligent or to have shown a lack of concern with respect to the commission of the offence;

(h) 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;

(i) any evidence from which the court may reasonably conclude that the offender has a history of non-compliance with legislation designed to prevent or minimize harm to the environment; and

(j) all available sanctions that are reasonable in the circumstances.

Marginal note:Absolute or conditional discharge

64. (1) If an offender has pleaded guilty to or been found guilty of an offence, the court may, instead of convicting the offender, by order direct that the offender be discharged absolutely or on conditions having any or all of the effects described in paragraphs 66(1)(a) to (n).

Marginal note:Conditions of order

(2) If an order is made under subsection (1) and the offender contravenes or fails to comply with it, or is convicted of an offence under this Act, the prosecutor may apply to the court to revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time the order was made.

Marginal note:Suspended sentence

65. (1) If an offender is convicted of an offence under this Act, the court may suspend the passing of sentence and may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order under section 66.

Marginal note:Application by prosecutor

(2) If the passing of sentence has been suspended under subsection (1) and the offender contravenes or fails to comply with an order made under section 66, or is convicted of an offence under this Act, the prosecutor may apply to the court to impose any sentence that could have been imposed if the passing of sentence had not been suspended.

Marginal note:Orders of court

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

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

(b) directing the offender to 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 Minister or directing the offender to pay, in the manner prescribed by the court, an amount for the purposes of environmental effects monitoring;

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

(e) directing the offender to publish, in the manner directed by the court, the facts relating to the conviction;

(f) 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 conviction;

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

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

(i) directing the offender to compensate the Minister, in whole or in part, for the cost of any remedial or preventive action taken by or caused to be taken on behalf of the Minister as a result of the act or omission that constituted the offence;

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

(k) directing that the amount of any fine be allocated, subject to the Criminal Code, in accordance with any directions of the court that are made on the basis of the harm or risk of harm caused by the commission of the offence;

(l) directing the offender to pay, in the manner prescribed by the court, an amount for the purposes of conducting research with respect to the Antarctic;

(m) directing the offender to pay, in the manner prescribed by the court, an amount to an educational institution for scholarships for students enrolled in environmental studies; and

(n) requiring the offender to comply with any other reasonable conditions that the court considers appropriate and just in the circumstances for securing the offender’s good conduct and for preventing the offender from repeating the same offence or committing other offences.

Marginal note:Publication

(2) If an offender fails to comply with an order made under paragraph (1)(e) directing the publication of the facts relating to the offence, the Minister may publish the facts in compliance with the order and recover the costs of publication from the offender.

Marginal note:Debt due to Her Majesty

(3) If the court makes an order under paragraph (1)(i) directing an offender to pay costs or the Minister incurs publication costs under subsection (2), 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

67. (1) Subject to subsection (2), if a court has made, in relation to an offender, an order or direction under section 64, 65 or 66, the court 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 one or any combination of the following ways that is applicable and, in the opinion of the court, is rendered desirable by a change in the circumstances of the offender since the order was made:

(a) make changes in the order or the conditions specified in it or extend the time during which the order is to remain in force for any period, not exceeding one year, that the court considers desirable; or

(b) decrease the time during which the order is to remain in force or relieve the offender, either absolutely or partially or for any period that the court considers desirable, of compliance with any condition that is specified in the order.

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

68. If an application made under section 67 in respect of an offender has been heard by a court, no other application may be made under that section with respect to the offender except with leave of the court.

DISCLOSURE OF INFORMATION

Marginal note:Purposes for which information may be disclosed

69. (1) Information obtained in the administration of this Act may be disclosed

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

(b) in order to notify other Parties to the Protocol

(i) of the number and nature of permits issued under this Act, including their conditions,

(ii) of any environmental emergency that has been discovered in the Antarctic or of any information relevant to a potential environmental risk in the Antarctic, and

(iii) of an emergency in the Antarctic referred to in section 19 and any activities undertaken in relation to that emergency by a Canadian or other person on a Canadian expedition, a Canadian vessel or a Canadian aircraft;

(c) in order to make publicly available annual reports on the steps taken by Canada to implement the Protocol, including administrative actions, enforcement measures and the preparation and implementation of emergency plans and waste management plans;

(d) in order to make the following publicly available:

(i) an initial environmental evaluation,

(ii) any significant information obtained from procedures put in place to assess and verify the impact of an activity that has been the subject of an initial or comprehensive environmental evaluation, and any action taken in relation to that information, and

(iii) a draft comprehensive environmental evaluation, any comments received on the draft, the final comprehensive environmental evaluation, notice of any decision relating to the final evaluation and any evaluation of the significance of the predicted impacts in relation to the proposed activity;

(e) 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 its institutions, or between the Minister and any other minister of the Crown in right of Canada, if

(i) the purpose of the agreement or arrangement is the administration or enforcement of a law, and

(ii) the government, international organization, institution or other minister undertakes to keep the information confidential; or

(f) under an agreement or arrangement between the Government of Canada and the government of a foreign state or an international organization, if the government or organization undertakes to keep the information confidential.

Marginal note:Disclosure of personal information

(2) Personal information as defined in section 3 of the Privacy Act may not be disclosed under subsection (1) unless

(a) the disclosure is in the interest of public health, public safety or the protection of the environment; and

(b) the public interest in the disclosure clearly outweighs in importance any damage to the privacy, reputation or human dignity of any individual that may result from the disclosure.

COMING INTO FORCE

Marginal note:Order

70. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
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