Species at Risk Act: alternative measures

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When alternative measures may be used

108. (1) Alternative measures may be used to deal with a person who is alleged to have committed an offence, but only if it is not inconsistent with the purposes of this Act to do so and the following conditions are met:

• the measures are part of a program of alternative measures authorized by the Attorney General, after consultation with the competent minister;
  
• an information has been laid in respect of the offence;
  
• the Attorney General, after consultation with the competent minister, is satisfied that the alternative measures would be appropriate, having regard to the nature of the offence, the circumstances surrounding its commission and the following factors, namely,
  
• the protection of species at risk,
  
• the person's history of compliance with this Act,
  
• whether the offence is a repeated occurrence,
  
• 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
  
• whether any remedial or preventive action has been taken by or on behalf of the person in relation to the offence;
  
• the person applies, in accordance with regulations made under paragraph 119(a), to participate in the alternative measures after having been informed of them;
  
• the person and the Attorney General have concluded an agreement respecting the alternative measures within 180 days after the person has, with respect to the offence, been served with a summons, been issued an appearance notice or entered into a promise to appear or a recognizance;
  
• before consenting to participate in the alternative measures, the person has been advised of the right to be represented by counsel;
  
• the person accepts responsibility for the act or omission that forms the basis of the offence;
  
• there is, in the opinion of the Attorney General, sufficient evidence to proceed with the prosecution of the offence; and
  
• the prosecution of the offence is not barred at law.

Restriction on use

(2) Alternative measures may not be used to deal with a person who

• denies participation or involvement in the commission of the alleged offence; or
  
• expresses the wish to have any charge against them 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 alternative measures is admissible in evidence against the person in any civil or criminal proceedings.

Dismissal of charge

(4) A court must dismiss a charge laid against a person in respect of an offence if alternative measures have been used to deal with the person in respect of the alleged offence and

• the court is satisfied on a balance of probabilities that the person has totally complied with the agreement; or
  
• the court is satisfied on a balance of probabilities that the person has partially complied with the agreement and, in the opinion of the court, the prosecution of the charge would be unfair, having regard to the circumstances and the person's performance with respect to the agreement.

No bar to proceedings

(5) The use of 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 law.

Terms and conditions
in agreement

109. (1) An alternative measures agreement may contain any terms and conditions, including

• terms and conditions having any or all of the effects set out in section 105 or any other terms and conditions having any of the effects prescribed by regulations that the Attorney General, after consultation with the competent minister, considers appropriate; and
  
• terms and conditions relating to the costs associated with ensuring compliance with the agreement.

Supervision of
compliance

(2) Any governmental organization may supervise compliance with the agreement.

Duration of agreement

110. An alternative measures agreement comes into effect on the day on which it is concluded or on any later day that is specified in the agreement and continues in effect for a period of not more than three years.

Filing in court for
purpose of public
access

111. (1) The Attorney General must consult the competent minister before concluding an alternative measures agreement and, subject to subsection (5) , must have the agreement filed with the court in which the information was laid within 30 days after the agreement is concluded. The agreement is to be filed as part of the court record of the proceedings to which the public has access.

Reports

(2) A report relating to the administration of, and compliance with, the agreement must be filed with the same court by the Attorney General 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.

Third party information

(3) Subject to subsection (4), if any of the following information is to be part of the agreement or the report, it must be set out in a schedule to the agreement or to the report:

• trade secrets of any person;
  
• financial, commercial, scientific or technical information that is confidential information and is treated consistently in a confidential manner by any person;
  
• information the disclosure of which could reasonably be expected to result in material financial loss or gain to any person, or could reasonably be expected to prejudice the competitive position of any person; or
  
• 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 the agreement must agree on which information that is to be part of the agreement or the report is information that meets the requirements of paragraphs (3)(a) to (d) .

How schedule is to be
kept secret

(5) The schedule is confidential and must not be filed with the court.

Prohibition of disclosure

(6) The competent minister must not disclose any information set out in a schedule to the agreement or to the report, except as authorized by section 117 or the Access to Information Act.

Stay of proceedings

112. (1) Despite section 579 of the Criminal Code, the Attorney General must, on filing an alternative measures agreement, stay the proceedings in respect of the alleged offence, or apply to the court for an adjournment of the proceedings, for a period of not more than one year after the expiry of the agreement.

Recommencement of proceedings

(2) Proceedings stayed under subsection (1) 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. If no such notice is given within one year after the expiry of the agreement, the proceedings are deemed to have never been commenced.

Application to vary agreement

113. (1) Subject to subsections 111(2) and (3), the Attorney General may vary the terms and conditions of an alternative measures agreement on application by the person bound by the agreement and after consultation with the competent minister. The Attorney General must be of the opinion that the variation is desirable because of a material change in the circumstances since the agreement was concluded or last varied. The variation may include

• decreasing the period for which the agreement is to remain in force; and
  
• relieving the person of compliance with any condition that is specified in the agreement, either absolutely or partially or for any period that the Attorney General considers desirable.

Filing varied agreement

(2) An agreement that has been varied must be filed in accordance with section 111 with the court in which the original agreement was filed.

Application of provisions dealing with records

114. Sections 115 to 117 apply only in respect of persons who have entered into an alternative measures agreement, regardless of the degree of their compliance with the terms and conditions of the agreement.

Disclosure of information by peace officer or enforcement officer

115. Where it is necessary in the conduct of an investigation of an offence, a peace officer or enforcement officer may disclose to a department or agency of a government in Canada any information in a record relating to an offence alleged to have been committed by a person, including the original or a copy of any fingerprints or photographs of the person.

Government records

116. (1) The competent minister, any enforcement officer and any department or agency of a government in Canada with which the competent minister has entered into an agreement under section 10 may keep records and use information obtained as a result of the use of alternative measures to deal with a person

• for the purposes of an inspection under this Act or an investigation of an offence alleged to have been committed by a person;
  
• in proceedings against a person under this Act;
  
• for the purpose of the administration of alternative measures programs; or
  
• otherwise for the administration of this Act.

Private records

(2) Any person or organization may keep records of information obtained by them as a result of supervising compliance with an alternative measures agreement and use the information for the purpose of supervising such compliance.

Disclosure of records

117. (1) A record or information referred to in section 115 or 116 may be made available to

• any judge or court for any purpose with respect to proceedings relating to offences under this or any other Act committed or alleged to have been committed by the person to whom the record relates;
  
• any peace officer, enforcement officer or prosecutor
  
• for the purpose of investigating an offence under this or any other Act that the person is suspected on reasonable grounds of having committed, or in respect of which the person has been arrested or charged, or
  
• for any purpose related to the administration of the case to which the record relates;
  
• any member of a department or agency of a government in Canada, or any agent of such a government, that is
  
• engaged in the administration of alternative measures in respect of the person, or
  
• preparing a report in respect of the person under this Act; or
  
• 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 desirable in the public interest for research or statistical purposes or in the interest of the proper administration of justice, and
  
• the person gives a written undertaking not to subsequently disclose the information except in accordance with subsection (2).

Subsequent disclosure
for research or statistical purposes

(2) If a record is made available for inspection to any person under paragraph (1)(d) for research or statistical purposes, that person may subsequently disclose information contained in the record, but may not disclose the information in any form that would reasonably be expected to identify the person to whom it relates.

Information, copies

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

Evidence

(4) This section does not authorize 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 in respect of an alternative measures agreement, a varied alternative measures agreement or a report that is filed with the court in accordance with section 111 .

Information exchange agreements

118. The competent 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 alternative measures or preparing a report in respect of a person's compliance with an alternative measures agreement.

Regulations

119. The competent minister may make regulations respecting the alternative measures that may be used for the purposes of this Act including regulations respecting

• the form and manner in which and the period within which an application to participate in the alternative measures is to be made, and the information that must be contained in or accompany the application;
  
• the manner of preparing and filing reports relating to the administration of and compliance with alternative measures agreements;
  
• the types of costs, and the manner of paying the costs, associated with ensuring compliance with alternative measures agreements; and
  
• the terms and conditions that may be included in an alternative measures agreement and the effects of those terms and conditions.