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Migratory Birds Convention Act, 1994 (S.C. 1994, c. 22)

Act current to 2024-02-06 and last amended on 2017-12-12. Previous Versions

Offences and Punishment (continued)

Marginal note:Determination of small revenue corporation status

 For the purpose of sections 13 and 13.01, a court may determine a corporation to be a small revenue corporation if the court is satisfied that the corporation’s gross revenues for the 12 months immediately before the day on which the subject matter of the proceedings arose — or, if it arose on more than one day, for the 12 months immediately before the first day on which the subject matter of the proceedings arose — were not more than $5,000,000.

  • 2009, c. 14, s. 102

Marginal note:Offence — vessels

  •  (1) Every vessel commits an offence that contravenes

    • (a) section 5.1;

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

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

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

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

    • (a) on conviction on indictment,

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

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

    • (b) on summary conviction,

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

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

  • Marginal note:Penalty — other vessels

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

    • (a) on conviction on indictment,

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

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

    • (b) on summary conviction,

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

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

  • 2009, c. 14, s. 102

Marginal note:Offences — vessels

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

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

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

    • (a) on conviction on indictment,

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

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

    • (b) on summary conviction,

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

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

  • Marginal note:Penalty — other vessels

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

    • (a) on conviction on indictment,

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

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

    • (b) on summary conviction,

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

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

  • 2009, c. 14, s. 102

Marginal note:Deeming — second and subsequent offence

  •  (1) For the purposes of subsections 13(2) to (4), 13.01(2) to (4), 13.03(2) and (3) and 13.04(2) and (3), a conviction for a particular offence under this Act is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the offender has been previously convicted — under any Act of Parliament, or any Act of the legislature of a province, that relates to environmental or wildlife conservation or protection — of a substantially similar offence.

  • Marginal note:Application

    (2) Subsection (1) applies only to previous convictions on indictment and to previous convictions on summary conviction, and to previous convictions under any similar procedure under any Act of the legislature of a province.

  • 2009, c. 14, s. 102

Marginal note:Relief from minimum fine

 The court may impose a fine that is less than the minimum amount provided for in section 13 or 13.03, as the case may be, if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in any of those sections.

  • 2009, c. 14, s. 102

Marginal note:Additional fine

 If a person or vessel is convicted of an offence under this Act and the court is satisfied that, as a result of the commission of the offence, the person — or, if the offender is a vessel, the owner or operator of the vessel — acquired any property, benefit or advantage, the court shall order the offender to pay an additional fine in an amount equal to the court’s estimation of the value of that property, benefit or advantage. The additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.

  • 2009, c. 14, s. 102

Marginal note:Notice to shareholders

 If a corporation that has shareholders is convicted of an offence under this Act, the court shall make an order directing the corporation to notify its shareholders, in the manner and within the time directed by the court, of the facts relating to the commission of the offence and of the details of the punishment imposed.

  • 2009, c. 14, s. 102

Marginal note:Fundamental purpose of sentencing

 The fundamental purpose of sentencing for offences under this Act is to contribute, in light of the long-standing recognition of the social, cultural and environmental importance of migratory birds, to respect for the law protecting and conserving migratory birds and their nests through the imposition of just sanctions that have as their objectives

  • (a) to deter the offender and any other person from committing offences under this Act;

  • (b) to denounce unlawful conduct that damages or creates a risk of damage to migratory birds or their nests; and

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

  • 2009, c. 14, s. 102

Marginal note:Sentencing principles

  •  (1) In addition to the principles and factors that the court is otherwise required to consider, including those set out in sections 718.1 to 718.21 of the Criminal Code, the court shall consider the following principles when sentencing a person who is convicted of an offence under this Act:

    • (a) the amount of the fine should be increased to account for every aggravating factor associated with the offence, including the aggravating factors set out in subsection (2); and

    • (b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.

  • Marginal note:Aggravating factors

    (2) The aggravating factors are the following:

    • (a) the offence caused damage or risk of damage to migratory birds or their nests;

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

    • (c) the damage caused by the offence is extensive, persistent or irreparable;

    • (d) the offender committed the offence intentionally or recklessly;

    • (e) the offender failed to take reasonable steps to prevent the commission of the offence despite having the financial means to do so;

    • (f) by committing the offence or failing to take action to prevent its commission, the offender increased revenue or decreased costs or intended to increase revenue or decrease costs;

    • (g) the offender committed the offence despite having been warned by a game officer of the circumstances that subsequently became the subject of the offence;

    • (h) the offender has a history of non-compliance with federal or provincial legislation that relates to environmental or wildlife conservation or protection; and

    • (i) after the commission of the offence, the offender

      • (i) attempted to conceal its commission,

      • (ii) failed to take prompt action to prevent, mitigate or remediate its effects, or

      • (iii) failed to take prompt action to reduce the risk of committing similar offences in the future.

  • Marginal note:Absence of aggravating factor

    (3) The absence of an aggravating factor set out in subsection (2) is not a mitigating factor.

  • Marginal note:Meaning of damage

    (4) For the purposes of paragraphs (2)(a) to (c), damage includes loss of use value and non-use value.

  • Marginal note:Reasons

    (5) If the court is satisfied of the existence of one or more of the aggravating factors set out in subsection (2) but decides not to increase the amount of the fine because of that factor, the court shall give reasons for that decision.

  • 2009, c. 14, s. 102

Marginal note:Proceedings against vessels

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

  • Marginal note:Direction binds vessel

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

  • Marginal note:Service

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

  • Marginal note:Appearance at trial

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

  • Marginal note:Proof of offence — vessel

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

  • 2009, c. 14, s. 102

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

 If a corporation commits an offence under this Act, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to the offence and is liable on conviction to the penalty provided for by this Act for an individual in respect of the offence committed by the corporation, whether or not the corporation has been prosecuted or convicted.

  • 2009, c. 14, s. 102

Marginal note:Liability of masters, chief engineers, owners, etc.

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

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

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

  • 2009, c. 14, s. 102

Marginal note:Proof of offence — corporation

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

  • 2009, c. 14, s. 102

Marginal note:Proof of offence — master or chief engineer

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

  • 2009, c. 14, s. 102

Marginal note:Proof of offence — section 5.4

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

  • 2009, c. 14, s. 102

Marginal note:Due diligence

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

  • 2009, c. 14, s. 102

Marginal note:Continuing offence

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

  • 2009, c. 14, s. 102
 

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