The Act: Table of Contents: Part 10: Environmental Protection Alternative Measures

Part 10: Enforcement - Environmental Protection Alternative Measures

Definitions

295. The definitions in this section apply in sections 296 to 309.

"agreement" « accord »

"agreement" means an agreement respecting environmental protection alternative measures.

"Attorney General" « procureur général »

"Attorney General" means the Attorney General of Canada or an agent of the Attorney General of Canada.

"environmental protection alternative measures" « mesures de rechange »

"environmental protection alternative measures" means measures, other than judicial proceedings, that are used to deal with a person who is alleged to have committed an offence under this Act.

"person" « personne »

"person" includes individuals, Her Majesty in right of Canada or of a province and public bodies, bodies corporate, societies and companies.

When measures may be used

296. (1) Environmental protection alternative measures may be used to deal with a person who is alleged to have committed an offence under this Act only if it is not inconsistent with the purposes of this Act and the following conditions are met:

(a) the measures are part of a program of environmental protection alternative measures authorized by the Attorney General, after consultation with the Minister;

(b) the offence alleged to have been committed is an offence under this Act, except an offence under

(i) paragraph 272(1)(a) or (b), in respect of subsection 16(4), 81(1), (2), (3) or (4), 82(1) or (2), 84(2) or 96(4), section 99, subsection 106(1), (2), (3) or (4), 107(1) or (2), 109(1) or (2), 119(1), 148(1), 202(4) or 213(4) or section 227 or 228,

(ii) paragraph 272(1)(c), (d) or (e),

(iii) subsection 273(1), if the offence is committed knowingly, or

(iv) subsection 274(1) or (2);

(c) an information has been laid in respect of the offence;

(d) the Attorney General, after consulting with the Minister, is satisfied that they would be appropriate, having regard to the nature of the offence, the circumstances surrounding its commission and the following factors, namely,

(i) the protection of the environment and of human life and health and other interests of society,

(ii) the person's history of compliance with this Act,

(iii) whether the offence is a repeated occurrence,

(iv) any allegation that information is being or was concealed or other attempts to subvert the purposes and requirements of this Act are being or have been made, and

(v) whether any remedial or preventive action has been taken by or on behalf of the person in relation to the offence;

(e) the person has been advised of the right to be represented by counsel;

(f) the person accepts responsibility for the act or omission that forms the basis of the offence that the person is alleged to have committed;

(g) the person applies, in accordance with regulations made under section 309, to participate in the measures;

(h) the person and the Attorney General have entered into an agreement within the period of 180 days after the Attorney General has provided initial disclosure of the Crown's evidence to the person;

(i) there is, in the opinion of the Attorney General, sufficient evidence to proceed with the prosecution of the offence; and

(j) the prosecution of the offence is not barred at law.

Restriction on use

(2) Environmental protection alternative measures shall not be used to deal with a person who

(a) denies participation or involvement in the commission of the alleged offence; or

(b) expresses the wish to have any charge against the person dealt with by the court.

Admissions not admissible in evidence

(3) No admission, confession or statement accepting responsibility for a given act or omission made by a person as a condition of being dealt with by environmental protection alternative measures is admissible in evidence against the person in any civil or criminal proceedings.

Dismissal of charge

(4) Where environmental protection alternative measures have been used to deal with a person alleged to have committed an offence, the court shall dismiss the charge laid against the person in respect of that offence where the court is satisfied on a balance of probabilities that the person has complied with the agreement.

No bar to proceedings

(5) The use of environmental protection alternative measures in respect of a person who is alleged to have committed an offence is not a bar to any proceedings against the person under this Act.

Laying of information, etc.

(6) This section does not prevent any person from laying an information, obtaining the issue or confirmation of any process, or proceeding with the prosecution of any offence, in accordance with the law.

Sentencing considerations

297. Where an information in respect of an offence of contravening an agreement under section 272 has been laid and proceedings in respect of the alleged offence for which the agreement was entered into have been recommenced, the court imposing a sentence for either offence shall take into account, in addition to the factors referred to in section 287, any sentence that has previously been imposed for the other offence.

Nature of measures contained in agreement

298. (1) An agreement may contain any terms and conditions, including, but not limited to,

(a) terms and conditions having any or all of the effects set out in section 291 or any other terms and conditions having any of the effects prescribed by the regulations that the Attorney General, after consulting with the Minister, considers appropriate; and

(b) terms and conditions relating to the costs of laboratory tests and of field tests, travel and living expenses, costs of scientific analyses and other reasonable costs associated with supervising and verifying compliance with the agreement.

Supervisory bodies

(2) Any governmental or non-governmental body may supervise compliance with an agreement.

Duration of agreement

299. An agreement comes into force on the day on which it is signed or on any later day that is specified in the agreement and continues in force for the period, not exceeding three years, specified in the agreement.

Filing in court for the purpose of public access

300. (1) Subject to subsection (5), the Attorney General shall consult with the Minister before entering into an agreement and shall cause the agreement to be filed, as part of the court record of the proceedings to which the public has access, with the court in which the information was laid, within 30 days after the agreement was entered into.

Reports

(2) A report relating to the administration of or compliance with an agreement shall, immediately after all the terms and conditions of the agreement have been complied with or the charges in respect of which the agreement was entered into have been dismissed, be filed with the court in which the agreement was filed in accordance with subsection (1).

Confidential information or material injury

(3) Subject to subsection (4), the following information that is to be part of an agreement or the report referred to in subsection (2) must be set out in a schedule to the agreement or to the report:

(a) trade secrets of any person;

(b) financial, commercial, scientific or technical information that is confidential information and that is treated consistently in a confidential manner by any person;

(c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, any person; or

(d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of any person.

Agreement on information to be in schedule

(4) The parties to an agreement must agree on which information that is to be part of an agreement or a report is information that meets the requirements of paragraphs (3)(a) to (d).

Manner in which schedules to be kept secret

(5) A schedule to an agreement or to the report referred to in subsection (2) is confidential and shall not be filed with the court.

Prohibition of disclosure

(6) The Minister shall not disclose any information set out in a schedule to the agreement or to the report referred to in subsection (2), except under section 307 or under the Access to Information Act.

Filing in Environmental Registry

301. A copy of every agreement and report referred to in subsection 300(2) and every agreement that has been varied under subsection 303(1), or a notice that the agreement or report has been filed in court and is available to the public, shall be included in the Environmental Registry.

Stay and recommencement of proceedings

302. Despite section 579 of the Criminal Code,

(a) the Attorney General shall, on filing the agreement, stay the proceedings or apply to the court for an adjournment of the proceedings in respect of the offence alleged to have been committed for a period of not more than one year after the expiry of the agreement; and

(b) proceedings stayed in accordance with paragraph (a) may be recommenced, without laying a new information or preferring a new indictment, as the case may be, by the Attorney General giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered, but where no such notice is given within one year after the expiry of the agreement, the proceedings are deemed never to have been commenced.

Application to vary agreement

303. (1) Subject to subsection 300(5), the Attorney General may, on application by the person bound by an agreement and after consulting with the Minister, vary the agreement in one or both of the following ways that, in the opinion of the Attorney General, is rendered desirable by a material change in the circumstances since the agreement was entered into or last varied:

(a) make any changes to the agreement or to its terms and conditions; or

(b) decrease the period for which the agreement is to remain in force or relieve the person, either absolutely or partially or for any period that the Attorney General considers desirable, of compliance with any condition that is specified in the agreement.

Filing of varied agreement

(2) An agreement that has been varied under subsection (1) shall be filed with the court in which the original agreement was filed in accordance with section 300.

Records of persons

304. Sections 305 to 307 apply only to persons who have entered into an agreement, regardless of the degree of their compliance with its terms and conditions.

Records of police forces and investigative bodies

305. (1) A record that relates to an offence that is alleged to have been committed by a person, including the original or a copy of any fingerprints or photographs of the person, may be kept by any police force or body responsible for, or participating in, the investigation of the offence.

Disclosure by enforcement officer or peace officer

(2) An enforcement officer or other peace officer may disclose to any person any information in a record kept under this section that it is necessary to disclose in the conduct of the investigation of an offence.

Disclosure to insurance company

(3) An enforcement officer or other peace officer may disclose to an insurance company any information in a record kept under this section that it is necessary to disclose for the purpose of investigating a claim arising out of an offence that is committed or alleged to have been committed by the person to whom the record relates.

Government records

306. (1) The Minister, enforcement officers and analysts and any department or agency of a government in Canada with which the Minister has entered into an agreement under section 308 may keep records and use information obtained as a result of the use of environmental protection alternative measures to deal with a person

(a) for the purposes of an inspection under this Act or an investigation of an offence under this Act that is alleged to have been committed by the person;

(b) in proceedings against the person under this Act;

(c) for the purpose of the administration of environmental protection alternative measures programs; or

(d) otherwise for the purposes of the administration or enforcement of this Act.

Supervision records

(2) Any person may keep the records and use the information obtained by the person as a result of supervising compliance with an agreement that are necessary for the purpose of supervising compliance with the agreement.

Disclosure of records

307. (1) Any record or information referred to in section 305 or 306 may be made available to

(a) any judge or court for any purpose that relates to proceedings relating to offences that are committed or alleged to have been committed by the person to whom the record relates;

(b) any prosecutor, enforcement officer or other peace officer

(i) for the purpose of investigating an offence that the person is suspected on reasonable grounds of having committed, or in respect of which the person has been arrested or charged, or

(ii) for any purpose that relates to the administration of the case to which the record relates;

(c) any member of a department or agency of a government in Canada, or any agent of such a department or agency, that is

(i) engaged in the administration of environmental protection alternative measures in respect of the person, or

(ii) preparing a report in respect of the person under this Act; or

(d) any other person who is deemed, or any person within a class of persons that is deemed, by a judge of a court to have a valid interest in the record, to the extent directed by the judge, if the judge is satisfied that the disclosure is

(i) desirable in the public interest for research or statistical purposes, or

(ii) desirable in the interest of the proper administration of justice,

and if that person gives a written undertaking not to subsequently disclose the information except in accordance with subsection (2).

Subsequent disclosure

(2) Where a record is made available to a person under subparagraph (1)(d)(i), the person may subsequently disclose information contained in the record, but shall not disclose it in any form that could reasonably be expected to identify the person to whom it relates and any other person specified by the judge.

Information, copies

(3) Any person to whom a record is authorized to be made available under this section may be given any information that is contained in the record and may be given a copy of any part of the record.

Evidence

(4) Nothing in this section authorizes the introduction into evidence of any part of a record that would not otherwise be admissible in evidence.

Exception for public access to court record

(5) For greater certainty, this section does not apply to an agreement, a varied agreement or report that is filed with the court in accordance with section 300.

Agreements respecting exchange of information

308. The Minister may enter into an agreement with a department or agency of a government in Canada respecting the exchange of information for the purpose of administering environmental protection alternative measures or preparing a report in respect of a person's compliance with an agreement.

Regulations

309. The Minister may make regulations respecting the environmental protection alternative measures that may be used for the purposes of this Act including, but not limited to, regulations

(a) excluding specified offences under this Act from the application of those measures;

(b) prescribing the form and manner in which and the period within which an application to participate in the measures is to be made, and the information that must be contained in or accompany the application;

(c) respecting the manner of preparing and filing reports relating to the administration of and compliance with agreements;

(d) respecting the types of reasonable costs and the manner of paying the costs associated with supervising and verifying compliance with an agreement; and

(e) respecting the terms and conditions that may be provided for in an agreement and their effects.