Species at Risk Act: alternative measures
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.
admissible in evidence
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.
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.
purpose of public
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.
information to be in schedule
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.
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.
- 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).
for research or statistical purposes
access to court record
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.
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