S-212
Second Session, Fortieth Parliament,
57 Elizabeth II, 2009
SENATE OF CANADA
BILL S-212
An Act to amend the Canadian Environmental Protection Act, 1999
first reading, January 27, 2009
THE HONOURABLE SENATOR BANKS
3920735
SUMMARY
This enactment amends the Canadian Environmental Protection Act, 1999 to remove the requirement for an individual to show that an alleged offence under the Act has caused significant harm to the environment in order to proceed with an environmental protection action. It also provides for fine splitting and an order for the recovery of costs in private prosecutions for offences under the Act.
Available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca
2nd Session, 40th Parliament,
57 Elizabeth II, 2009
senate of canada
BILL S-212
An Act to amend the Canadian Environmental Protection Act, 1999
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
1999, c. 33
CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
1. (1) Subsection 22(2) of the Canadian Environmental Protection Act, 1999 is replaced by the following:
Nature of the action
(2) The action may be brought in any court of competent jurisdiction against a person who is alleged to have committed the offence alleged in the application for the investigation.
(2) Paragraph 22(3)(d) of the Act is replaced by the following:
(d) an order to the parties to negotiate a plan to correct or mitigate any harm to the environment or to human, animal or plant life or health caused by the commission of the offence, and to report to the court on the negotiations within a time set by the court; and
2. Section 29 of the Act is replaced by the following:
Burden of proof
29. The offence alleged in an environmental protection action is to be proved on a balance of probabilities.
3. Subsection 275(1) of the Act is replaced by the following:
Limitation period
275. (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 time when the Minister or, in the case of a private prosecution, the private prosecutor became aware of the subject-matter of the proceedings.
4. Section 278 of the Act is replaced by the following:
Apportionment of fines
278.
(1) Where a private prosecution is instituted in respect of an offence under this Act, the proceeds resulting from the payment of a fine in relation to a conviction for the offence shall be distributed
(a) one half to the private prosecutor; and
(b) one half to the Minister or, where all of the expenses incurred in the prosecution of the offence are paid by a provincial government, to that provincial government.
Regulations
(2) Subject to subsection (1), the Governor in Council may make regulations prescribing the manner in which the proceeds or any part of the proceeds resulting from the payment of a fine or the execution of an order in relation to an offence under this Act shall be distributed in order to reimburse any person, government or body that has commenced the proceedings in respect of the offence for costs incurred by that person, government or body in respect of the prosecution of the offence.
5. (1) Subsection 291(1) of the Act is amended by adding the following after paragraph (k):
(k.1) if a private prosecution was instituted in respect of the offence, directing the offender to compensate the private prosecutor, in whole or in part, for the costs and expenses incurred by them in respect of the prosecution;
(2) Paragraph 291(1)(m) of the Act is replaced by the following:
(m) directing that the amount of any fine or other monetary award be allocated, subject to the Criminal Code, subsection 278(1) and any regulations that may be made under subsection 278(2), 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;
6. The portion of subsection 293(1) of the Act before paragraph (a) is replaced by the following:
Variation of sanctions
293. (1) Subject to subsection (2), where a court has made, in relation to an offender, an order or direction under section 288, 289 or 291, the court may, on application by the offender, the Attorney General or, if a private prosecution was conducted in relation to the offence, the private prosecutor, require the offender to appear before it and, after hearing the offender and the Attorney General, or the offender and the private prosecutor, as the case may be, 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:
TRANSITIONAL PROVISIONS
Continued application to actions in progress
7. Subsection 22(2), paragraph 22(3)(d) and section 29 of the Canadian Environmental Protection Act, 1999, as they read immediately before the coming into force of this Act, continue to apply in respect of environmental protection actions that are in progress before that coming into force.
Application to private prosecutions in progress
8. Section 278, paragraphs 291(1)(k.1) and (m) and subsection 293(1) of the Canadian Environmental Protection Act, 1999, as enacted by sections 4 to 6 of this Act, apply in respect of a private prosecution for an offence under that Act that is in progress immediately before the coming into force of this Act.
Published under authority of the Senate of CanadaAvailable from:Publishing and Depository ServicesPublic Works and Government Services Canada
Explanatory Notes
Canadian Environmental Protection Act, 1999
Clause 1: (1) Existing text of subsection 22(2):
(2) The action may be brought in any court of competent jurisdiction against a person who committed an offence under this Act that
(a) was alleged in the application for the investigation; and
(b) caused significant harm to the environment.
(2) Relevant portion of subsection 22(3):
(3) In the action, the individual may claim any or all of the following:
. . . 
(d) an order to the parties to negotiate a plan to correct or mitigate the harm to the environment or to human, animal or plant life or health, and to report to the court on the negotiations within a time set by the court; and
Clause 2: Existing text of section 29:
29. The offence alleged in an environmental protection action and the resulting significant harm are to be proved on a balance of probabilities.
Clause 3: Existing text of subsection 275(1):
275. (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 time when the Minister became aware of the subject-matter of the proceedings.
Clause 4: Existing text of section 278:
278. The Governor in Council may make regulations prescribing the manner in which the proceeds or any part of the proceeds resulting from the payment of a fine or the execution of an order in relation to an offence under this Act shall be distributed in order to reimburse any person, government or body that has commenced the proceedings in respect of the offence for costs incurred by that person, government or body in respect of the prosecution of the offence.
Clause 5: Relevant portion of subsection 291(1):
291. (1) Where 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:
. . . 
(m) directing that the amount of any fine or other monetary award be allocated, subject to the Criminal Code and any regulations that may be made under section 278, 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;
Clause 6: Relevant portion of subsection 293(1):
293. (1) Subject to subsection (2), where a court has made, in relation to an offender, an order or direction under section 288, 289 or 291, the court may, on application by the offender or the Attorney General, 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: