Law:Marine Transportation Security Act

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S.c. 1994, c. 40

Assented to 1994-12-15

An Act to provide for the security of marine transportation

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:


Contents

Short Title

Short title

1. This Act may be cited as the Marine Transportation Security Act.


Interpretation

Definitions

2. (1) In this Act,

“authorized screening”

« contrôle »

“authorized screening” means anything authorized or required to be done under any regulation, security measure or security rule for the control, observation, inspection and search of persons or goods to prevent the unauthorized possession or carriage of weapons, explosives and incendiaries on board vessels and at marine facilities;

“Canadian ship”

« navire canadien »

 “Canadian ship” means a vessel registered under the Canada Shipping Act, 2001  or registered in Canada before August 1, 1936 under the Merchant Shipping Act, 1894  of the Parliament of the United Kingdom, 57-58 Victoria, chapter 60, and all Acts adding to or amending that Act;

“goods”

« bien »

“goods” means anything that may be taken or placed on board a vessel, including personal belongings, baggage and cargo;

“marine facility”

« installation maritime »

“marine facility” includes

(a) an area of land, water, ice or other supporting surface used, designed, prepared, equipped or set apart for use, either in whole or in part, for the arrival, departure, movement or servicing of vessels,

(b) buildings, installations and equipment on the area, associated with it or used or set apart for handling or storing goods that have been or are destined to be transported on a vessel,

(c) equipment and facilities used to provide services relating to marine transportation, and

(d) marine installations and structures, as defined in section 2 of the Canadian Laws Offshore Application Act;

“Minister”

« ministre »

“Minister” means the Minister of Transport;

“operator”

« exploitant »

“operator” means

(a) when used in respect of a vessel,

(i) the actual owner of the vessel, if it is not registered, or the registered owner, if it is registered,

(ii) a person having a beneficial interest in the vessel, including an interest arising under contract and any other equitable interest, other than an interest by way of a mortgage,

(iii) a lessee or charterer of the vessel who is responsible for its navigation, or

class="S(iv) a master or other person who has command or charge of the vessel, other than a pilot, and

(b) when used in respect of a marine facility, a person who has the charge, management and control of the facility, whether on that person’s own account or as an agent of another person;

“proposed security rule”

« règle de sûreté proposée »

“proposed security rule” means a rule submitted for the approval of the Minister under section 10;

“restricted area”

« zone réglementée »

“restricted area” means an area established under any regulation, security measure or security rule to which access is restricted to authorized persons;

“screening officer”

« agent de contrôle »

“screening officer” means a person designated by the Minister under section 19.1 as a screening officer for the purposes of this Act;

“security inspector”

« inspecteur »

“security inspector” means a person designated by the Minister under section 22 as a security inspector for the purposes of this Act;

“security measure”

« mesure de sûreté »

“security measure” means a measure formulated by the Minister under section 7;

“security rule”

« règle de sûreté »

“security rule” means a rule approved by the Minister under section 10;

“Tribunal”

« Tribunal »

 “Tribunal” means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act ;

“vessel”

« bâtiment »

“vessel” includes a dredge, floating elevator, floating home, floating oil rig, seaplane, raft, log or lumber boom, air cushion vehicle and any type of ship, boat or craft used or capable of being used for marine navigation, regardless of how it is propelled.

References to the Minister

(2) Where a provision of this Act authorizes or requires the Minister to do anything, the Minister may authorize it to be done by a person appointed to serve in the Department of Transport in an appropriate capacity and references to the Minister in the provision shall be interpreted as including that person.

class="H1994, c. 40, s. 2; 2001, c. 26, s. 306, c. 29, s. 55.

Previous Version

Application

Binding on Her Majesty

3. This Act is binding on Her Majesty in right of Canada or a province.

Application to vessels and marine facilities

4. (1) Subject to subsections (2) and (3), this Act applies in respect of

(a) vessels and marine facilities in Canada;

(b) Canadian ships outside Canada; and

(c) marine installations and structures, as provided in sections 5 and 6 of the Canadian Laws Offshore Application Act.

Limitation

(2) This Act does not apply so as to require or authorize any person outside Canada to contravene the law of a foreign country or any Canadian ship outside Canada to be operated in contravention of that law.

Limitation - military vessels, etc.

(3) This Act does not apply in respect of

(a) vessels and marine facilities operated under the authority of the Minister of National Defence; or

(b) military vessels of a foreign country to the extent that the Minister of National Defence may exempt them from the application of this Act.


Regulations

Regulations respecting security

5. (1) The Governor in Council may make regulations respecting the security of marine transportation, including regulations

(a) for preventing unlawful interference with marine transportation and ensuring that appropriate action is taken where that interference occurs or could occur;

(b) requiring or authorizing screening for the purpose of protecting persons, goods, vessels and marine facilities;

(c) respecting the establishment of restricted areas;

(d) respecting the keeping and preservation of records and documents relating to the security of marine operations, including copies of the regulations, security measures and security rules;

(e) for requiring the records and documents to be filed with the Minister or provided on request; and

(f) respecting the protection, preservation and return of any evidence that has been seized under this Act without a warrant or any vessel that has been detained under this Act.

Offences relating to the regulations

(2) Every person who contravenes a regulation made under subsection (1) is guilty of an offence punishable on summary conviction and liable

(a) in the case of an individual, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both; or

(b) in the case of a corporation, to a fine not exceeding $100,000.

1994, c. 40, s. 5; 2001, c. 29, s. 56.

Previous VersionNotices and service of documents

6. The Governor in Council may make regulations respecting

(a) the form and manner of giving notice under this Act; and

(b) the service of documents required or authorized to be served under this Act, including the manner of serving them, the proof of their service and the circumstances under which they are deemed to have been served.

1994, c. 40, s. 6; 2001, c. 29, s. 56.

Previous Version

Security Measures

Minister may formulate security measures

7. (1) The Minister may formulate measures respecting the security of marine transportation, including measures containing provisions that may be included in the regulations.

Operators to carry out security measures

(2) The Minister may, by notice in writing, require or authorize the operator of a vessel or marine facility to carry out the security measures, and the measures may apply instead of or in addition to any provision of the regulations.

Minister may carry out security measures

8. (1) The Minister may carry out security measures on any vessel or at any marine facility where the Minister considers that the security of persons or goods is not adequately protected or is not protected in accordance with this Act, the regulations and any applicable security measures and security rules.

Liability for costs

(2) The operators of the vessel or marine facility are jointly and severally liable to Her Majesty in right of Canada for the costs incurred by the Minister in carrying out the security measures.

Offences relating to security measures

9. Every operator who does not carry out security measures that the operator is required to carry out, and every person who wilfully obstructs a person who is carrying out security measures, is guilty of an offence and liable

(a) on conviction on indictment

(i) in the case of an individual, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding one year or to both, or

(ii) in the case of a corporation, to a fine not exceeding $200,000; or

(b) on summary conviction

(i) in the case of an individual, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both, or

(ii) in the case of a corporation, to a fine not exceeding $100,000.


Security Rules

Purpose of section

10. (1) The purpose of this section is to allow operators of vessels and marine facilities to formulate and operate under security rules as an alternative to security measures required or authorized by the Minister, but this section does not limit the authority of the Minister to require or authorize security measures.

Formulation of rules

(2) The operator of a vessel or marine facility may formulate rules respecting any matter relating to the security of the vessel or facility and the operator may submit the rules to the Minister for approval.

Minister may request rules

(3) The Minister may, by notice in writing, request the operator of a vessel or marine facility

(a) to formulate rules respecting any matter specified in the notice relating to the security of the vessel or facility; and

(b) to submit the rules to the Minister within any period specified in the notice.

Consultation

(4) Before submitting the rules, the operator shall consult persons who are likely to be directly affected by the rules, including any persons specified in the notice by the Minister.

Results of consultation

(5) When submitting the rules, the operator shall also submit a statement identifying the persons consulted and describing any disagreement they may have expressed about the rules.

Approval of rules

(6) Within one hundred and twenty days after the rules have been submitted, the Minister shall decide whether to approve them and shall notify the operator of the decision in writing and, if the Minister approves the rules,

(a) the Minister may make the approval subject to any conditions the Minister considers appropriate;

(b) the operator shall notify the persons who were consulted that the rules have been approved; and

(c) the operator shall carry out the rules and any conditions of their approval until the approval is revoked.

Rules not approved

(7) If the Minister decides not to approve the rules, the Minister shall give the operator reasons for the decision and the Minister may request the operator to revise and resubmit the rules within any period that the Minister may specify.

Amendments to security rules

(8) Amendments to security rules may be submitted and approved in the same way as are the security rules they amend and, when approved, have the same effect.

Revocation of approval

(9) The Minister may revoke the approval of security rules, either at the request of the operator or otherwise.

Offences relating to security rules

11. Every operator who does not carry out security rules and conditions approved by the Minister in relation to the operator, and every person who wilfully obstructs a person who is carrying out security rules, is guilty of an offence and liable

(a) on conviction on indictment

(i) in the case of an individual, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding one year or to both, or

(ii) in the case of a corporation, to a fine not exceeding $200,000; or

(b) on summary conviction

(i) in the case of an individual, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both, or

(ii) in the case of a corporation, to a fine not exceeding $100,000.

11.1 (Repealed, 2008, c. 21, s. 64)

Previous Version

Exemptions

Exemption by Minister

12. The Minister may, on any terms and conditions the Minister considers necessary, exempt any person, vessel or marine facility from the application of any regulation, security measure or security rule if, in the opinion of the Minister, the exemption is in the public interest and is not likely to affect marine security.


Confidentiality Of Security Measures And Security Rules

Prohibition against disclosure

13. (1) No person shall disclose to any other person the substance of a security measure, security rule or proposed security rule unless the disclosure is

(a) authorized by the Minister;

(b) ordered by a court or other body under section 14;

(c) required by any law; or

(d) necessary to give effect to the measure or rule.

Offence

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction and liable

(a) in the case of an individual, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both; or

(b) in the case of a corporation, to a fine not exceeding $100,000.

Court to inform Minister

14. (1) Where a request is made for the production or discovery of a security measure, security rule or proposed security rule in any proceeding before a court or other body having jurisdiction to compel its production or discovery, the court or other body shall

(a) notify the Minister of the request, if the Minister is not a party to the proceeding; and

(b) examine the measure or rule in a hearing closed to the public and give the Minister a reasonable opportunity to make representations with respect to it.

Order for production and discovery

(2) If the court or other body concludes that the public interest in the proper administration of justice outweighs the interests that would be protected by non-disclosure, the court or other body

(a) shall order the production and discovery of the measure or rule, subject to any restrictions or conditions that the court or other body considers appropriate; and

(b) may require any person to give evidence relating to the measure or rule.

Security measures and security rules not statutory instruments

15. Security measures and security rules are not statutory instruments for the purposes of the Statutory Instruments Act.


Directions To Vessels

Security threats

16. (1) Where the Minister has reasonable grounds to believe that a vessel is a threat to the security of any person or thing, including any goods, vessel or marine facility, the Minister may direct the vessel

(a) to proceed to a place specified by the Minister in accordance with any instructions the Minister may give regarding the route and manner of proceeding and to remain at the place until the Minister is satisfied that the security threat no longer exists;

(b) to proceed out of Canada in accordance with any instructions the Minister may give regarding the route and manner of proceeding; or

(c) to remain outside Canada.

Inadequate security measures

(2) The Minister may direct that a vessel registered outside Canada remain outside Canada, proceed out of Canada or not enter or dock at a marine facility if the Minister has reasonable grounds to believe that the vessel or any persons or goods on board it have not been subjected to screening or other measures equivalent to the authorized screening or other measures that would apply under this Act if the vessel were registered in Canada.

Directions not statutory instruments

(3) For greater certainty, a direction issued under this section is not a statutory instrument for the purposes of the Statutory Instruments Act, but no operator shall be found to have contravened the direction unless it is proved that, at the date of the alleged contravention, reasonable steps had been taken to bring the substance of the direction to the attention of the operator.

Evidence of notice

(4) A certificate appearing to be signed by the Minister, stating that a notice containing the direction was given to the operator of the vessel, is evidence that reasonable steps were taken to bring its substance to the attention of the operator.

Offences relating to directions

17. An operator of a vessel that contravenes a direction is guilty of an offence and liable

(a) on conviction on indictment

(i) in the case of an individual, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding one year or to both, or

(ii) in the case of a corporation, to a fine not exceeding $200,000; or

(b) on summary conviction

(i) in the case of an individual, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both, or

(ii) in the case of a corporation, to a fine not exceeding $100,000.


Notices To Operators

Effect of giving notice

18. A notice given to an operator of a vessel or marine facility or to an agent of the operator is effective with respect to that operator and any other operator of the vessel or marine facility.


Screening

Definition of “designation”

19. For the purposes of sections 19.1 to 19.8, “designation” includes any privilege accorded by a designation.

1994, c. 40, s. 19; 2001, c. 29, s. 57.

Previous VersionDesignation of screening officers

19.1 The Minister may designate persons or classes of persons to act as screening officers for the purposes of this Act or any of its provisions.

2001, c. 29, s. 57.

Refusal to designate, etc.

19.2 (1) The Minister may refuse to designate a person as a screening officer under section 19.1, or may suspend, cancel or refuse to renew the designation of a person as a screening officer, if the Minister is of the opinion that the person is incompetent, does not meet the qualifications or fulfil the conditions required for the designation or ceases to meet the qualifications or fulfil the conditions of the designation.

Suspension or cancellation of designation for contraventions

(2) The Minister may suspend or cancel the designation of a person as a screening officer if the Minister is of the opinion that the person has contravened this Act or any regulation, security measure or security rule, or any condition referred to in subsection 10(6).

Suspension for immediate threat

(3) The Minister may suspend the designation of a person as a screening officer if the Minister is of the opinion that the exercise by the person of the functions of a screening officer constitutes, or is likely to constitute, an immediate threat to marine transportation security.

2001, c. 29, s. 57.

Notice

19.3 (1) If the Minister decides to refuse to designate a person as a screening officer or decides to suspend, cancel or refuse to renew a person's designation as a screening officer, the Minister shall notify the person of that decision.

Contents of notice

(2) A notice under subsection (1) shall include

(a) the grounds for the Minister's decision; and

(b) the address at which, and the date, being thirty days after the notice is given, on or before which, the person may file a request for a review of the decision.

Effective date of suspension or cancellation

(3) In the case of a suspension or cancellation, the effective date of the decision shall not be earlier than

(a) in the case of a decision made under subsection 19.2(1) or (3), the day that the notice was received by the person; and

(b) in the case of a decision made under subsection 19.2(2), the thirtieth day after the notice is given.

2001, c. 29, s. 57.

Request for review

19.4 (1) A person affected by a decision of the Minister under section 19.2 may, on or before the date specified in the notice under subsection 19.3(1) or within any further time that the Tribunal on application allows, file a written request for a review of the decision.

Effect of request

(2) A request under subsection (1) for a review of a decision of the Minister does not operate as a stay of the decision.

Exception

(3) On application in writing by the person affected by a decision made under subsection 19.2(2), after giving any notice to the Minister that is, in the member's opinion, necessary and after considering any representations made by the parties, a member of the Tribunal assigned for the purpose may grant a stay of the decision until the review is completed, unless he or she is of the opinion that granting a stay would constitute a threat to marine transportation security.

2001, c. 29, s. 57.

Time and place for review

19.5 (1) On receipt of a request filed under subsection 19.4(1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.

Review procedure

(2) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.

Person not compelled to testify

(3) In a review of a decision made under subsection 19.2(2), the person who filed the request for the review is not required, and shall not be compelled, to give any evidence or testimony in the matter.

Determination

(4) The member may

(a) in the case of a decision made under subsection 19.2(1) or (3), confirm the decision or refer the matter back to the Minister for reconsideration; or

(b) in the case of a decision made under subsection 19.2(2), confirm the decision or substitute his or her own determination.

2001, c. 29, s. 57.

Right of appeal

19.6 (1) Within thirty days after the determination,

(a) a person affected by the determination may appeal a determination made under paragraph 19.5(4)(a) to the Tribunal; or

(b) a person affected by the determination or the Minister may appeal a determination made under paragraph 19.5(4)(b) to the Tribunal.

Loss of right of appeal

(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.

Disposition of appeal

(3) The appeal panel of the Tribunal assigned to hear the appeal may

(a) in the case of a determination made under paragraph 19.5(4)(a), dismiss the appeal or refer the matter back to the Minister for reconsideration; or

(b) in the case of a determination made under paragraph 19.5(4)(b), dismiss the appeal, or allow the appeal and substitute its own decision.

2001, c. 29, s. 57.

Decision to remain in effect pending reconsideration

19.7 If a matter is referred back to the Minister for reconsideration under paragraph 19.5(4)(a) or 19.6(3)(a), the decision of the Minister under subsection 19.2(1) or (3) to suspend or cancel a designation remains in effect until the reconsideration is concluded. However, the member who made the determination or the appeal panel, after considering any representations made by the parties, may grant a stay of a decision under subsection 19.2(1) to suspend or cancel a designation until the reconsideration is concluded, if the member or panel is satisfied that granting a stay would not constitute a threat to marine transportation security.

2001, c. 29, s. 57.

Reconsideration

19.8 (1) In the case of a decision made under subsection 19.2(3), if the appeal panel has, on an appeal under section 19.6, dismissed the appeal or if the Minister has, after reconsidering the matter pursuant to paragraph 19.5(4)(a) or 19.6(3)(a), confirmed the suspension, the person affected by the decision may, in writing, request the Minister to reconsider whether the exercise by the person of the functions of a screening officer continues to constitute, or is likely to continue to constitute, an immediate threat to marine transportation security.

Procedure applicable

(2) On the receipt of a request by a person under subsection (1), the Minister shall without delay conduct the reconsideration and inform the person of his or her decision regarding the request. Sections 19.3 to 19.7 apply in respect of that decision with any modifications that are necessary.

2001, c. 29, s. 57.

Screening before boarding

20. (1) A screening officer may require a person or any goods to undergo authorized screening before the person or goods come on board a vessel or enter a restricted area and, where so required,

(a) the person shall not board the vessel or enter the restricted area unless the person has undergone the authorized screening; and

(b) no person shall bring the goods on board the vessel or into the restricted area unless the goods have undergone the authorized screening.

Screening after boarding or in restricted areas

(2) A screening officer may require a person on board a vessel or in a restricted area to undergo authorized screening and, if the person refuses,

(a) the officer may order the person to leave the vessel or restricted area and to remove from it any goods that the person took or had placed there; and

(b) the person shall leave the vessel or restricted area and remove or permit the removal of the goods immediately or, in the case of a vessel that is not docked, at the first reasonable opportunity.

Unaccompanied goods

(3) A screening officer may carry out authorized screening of any goods that are received at a marine facility for transport on a vessel and are not accompanied by a person who may give permission for the screening and the officer may use any force that is reasonably necessary to gain access to the goods.

False or misleading information

(4) Every person who knowingly makes any false or misleading statement to a screening officer, or knowingly provides false or misleading information to a screening officer, is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both.

Circumventing authorized screening

(5) Every person who contravenes subsection (2) or who wilfully circumvents authorized screening in any manner is guilty of an offence and liable

(a) on conviction on indictment, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding one year or to both; or

(b) on summary conviction, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both.

Operators to post notices

21. (1) When authorized screening is required or authorized on a vessel or at a marine facility, the operator of the vessel or facility shall post notices stating that

(a) authorized screening is being carried out;

(b) no person is obliged to undergo authorized screening of their person if they choose not to board a vessel or enter a restricted area; and

(c) no person is obliged to permit authorized screening of their goods if they choose not to have the goods placed on board the vessel or in the restricted area.

Placement and languages of notices

(2) The notices must be posted in prominent places where authorized screening is carried out and they must be written in both of the official languages of Canada and may, in addition, be written in any other language.

Offence

(3) Every person who contravenes this section is guilty of an offence punishable on summary conviction and liable

(a) in the case of an individual, to a fine not exceeding $1,000; or

(b) in the case of a corporation, to a fine not exceeding $10,000.


Enforcement

Designation of security inspectors

22. (1) The Minister may designate persons or classes of persons whom the Minister considers qualified to act as security inspectors for the purposes of this Act or any of its provisions.

Certificate of designation

(2) The Minister shall furnish every security inspector with a certificate of designation as a security inspector and, on entering any place or inspecting anything, a security inspector shall show the certificate to the person apparently in charge of the place or thing if the person requests proof of the security inspector’s designation.

Inspection of vessels and marine facilities

23. (1) For the purpose of ensuring compliance with this Act and any regulation, security measure or security rule, a security inspector may at any reasonable time, but subject to subsection (3), board and inspect any vessel or enter and inspect any marine facility if the inspector is designated to inspect the vessel or facility.

Powers of inspector

(2) When conducting the inspection, the security inspector may

(a) require the attendance of and question any person who the inspector considers will be able to assist in the inspection;

(b) require any person to produce for inspection and copying any document that the inspector believes, on reasonable grounds, contains any information relevant to the administration of this Act or the regulation, security measure or security rule;

(c) seize anything found in the course of the inspection that the inspector believes, on reasonable grounds, will afford evidence with respect to an offence under this Act; and

(d) detain any vessel that the inspector believes, on reasonable grounds, is a threat to the security of any person, goods, vessel or marine facility, until the inspector is satisfied that the vessel is no longer such a threat.

Warrant required to enter dwelling-place

(3) A security inspector may not enter a dwelling-place except under the authority of a warrant or with the consent of the occupant or person apparently in charge of it.

Authority to issue warrant

(4) Where on ex parte application a justice, as defined in section 2 of the Criminal Code, is satisfied by information on oath that

(a) the conditions for entry described in subsection (1) exist in relation to a dwelling-place,

(b) entry is necessary for any purpose relating to the administration or enforcement of this Act, and

(c) entry has been refused or there are reasonable grounds for believing that entry will be refused,

the justice may at any time sign and issue a warrant authorizing the security inspector named in the warrant to enter the dwelling-place subject to any conditions that may be specified in the warrant.

Use of force

(5) The security inspector who executes the warrant shall not use force unless the inspector is accompanied by a peace officer and the use of force has been specifically authorized in the warrant.

Search and seizure

24. For greater certainty, sections 487 to 492 of the Criminal Code apply in relation to this Act, but a security inspector may exercise the powers of search and seizure provided in section 487 without a warrant if the conditions for obtaining a warrant exist but the circumstances are such that the delay necessary to obtain a warrant would result in danger to human life or safety.

Assistance to inspectors

25. (1) The operator of any vessel or marine facility boarded or entered by a security inspector who is carrying out functions under this Act, and every person found there, shall give the inspector all reasonable assistance in that person’s power to enable the inspector to carry out those functions.

Obstruction of inspectors

(2) When a security inspector is carrying out functions under this Act, no person shall fail to comply with any reasonable request of the inspector or otherwise wilfully obstruct the inspector.

Other prohibitions

(3) No person shall

(a) knowingly make any false or misleading statement or knowingly provide false or misleading information to a security inspector or other person carrying out functions under this Act;

(b) wilfully destroy any record or document required to be kept under this Act;

(c) make a false entry in a record required to be kept under this Act with intent to mislead, or wilfully omit to make any entry in such a record;

(d) remove, alter or interfere in any way with anything seized by a security inspector, except with the inspector’s permission; or

(e) wilfully operate a vessel that has been detained under this Act, unless authorized to do so under this Act.

Offence

(4) Every person who contravenes this section is guilty of an offence and liable

(a) on conviction on indictment

(i) in the case of an individual, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding one year or to both, or

(ii) in the case of a corporation, to a fine not exceeding $200,000; or

(b) on summary conviction

(i) in the case of an individual, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both, or

(ii) in the case of a corporation, to a fine not exceeding $100,000.


General Provisions Relating To Offences

Continuing offence

26. Where an offence is committed or continued on more than one day, the person who committed it is liable to be convicted of a separate offence for each day on which the offence is committed or continued.

Limitation period for summary conviction offences

27. Proceedings by way of summary conviction may be instituted at any time within, but not later than, two years after the day on which the subject-matter of the proceedings arose.

Offence by employee or agent

28. (1) A person is liable to be convicted of an offence committed by their employee or agent, whether or not the employee or agent has been identified, prosecuted or convicted.

Liability of operator of a vessel

(2) The operator of a vessel is liable to be convicted of an offence committed in relation to the vessel by another person, whether or not the other person has been identified, prosecuted or convicted, but no person shall be convicted under this subsection if it is established that, without the operator’s consent, the vessel was in the possession of another person at the time of the offence.

Liability of operator of marine facility

(3) The operator of a marine facility is liable to be convicted of an offence committed with their consent by another person in relation to the facility, whether or not the other person has been identified, prosecuted or convicted.

Officers, etc., of corporation

(4) An officer, director or agent of a corporation that commits an offence under this Act is liable to be convicted of the offence if he or she directed, authorized, assented to, acquiesced in or participated in the commission of the offence, whether or not the corporation has been prosecuted or convicted.

1994, c. 40, s. 28; 2001, c. 29, s. 58(F).

Previous VersionDefence

29. For greater certainty, no person is liable to be convicted of an offence if the person exercised all due diligence to prevent its commission.

Things seized or detained

30. Where a proceeding is commenced in respect of an offence involving anything seized or detained under this Act and it is detained until the final conclusion of the proceeding, it must be returned to its lawful owner or to the person lawfully entitled to its possession, unless that person has been convicted of an offence under this Act, in which case it may be detained until any fine imposed on conviction has been paid, or it may be sold in satisfaction of the fine or any part of it.

Recovery of fines

31. (1) Where a fine imposed on a person convicted of an offence is not paid when required, the conviction may be registered in the superior court of the province in which the trial was held and, when registered, has the same effect as if the conviction were a judgment of that court obtained by Her Majesty in right of Canada against the convicted person for a debt in the amount of the fine.

Recovery of costs

(2) All reasonable costs involved in registering the conviction are recoverable in the same way as if they were part of the fine.


Administrative Penalties

Interpretation

Definition of “violation”

32. In sections 33 to 51, “violation” means a contravention of a provision that is designated as a violation by the regulations.

1994, c. 40, s. 32; 2001, c. 29, s. 59.

Previous Version

Assurances of Compliance and Notices of Violation

If reasonable grounds to believe a violation

33. (1) If the Minister has reasonable grounds to believe that a person has committed a violation, the Minister may

(a) enter into an assurance of compliance with the person that

(i) identifies the violation and provides that the person will comply with the provision to which the violation relates within the period, and be subject to the terms and conditions, specified in the assurance,

(ii) sets out the amount and form of any security that, pending compliance with the assurance, must be deposited with the Minister, and

(iii) sets out the penalty, fixed by or within the range fixed by the regulations, that the person would have been liable to pay for the violation if the assurance had not been entered into; or

(b)  issue, and cause to be served on the person, a notice of violation that names the person, identifies the violation and sets out

(i) the penalty, fixed by or within the range fixed by the regulations, that the person is liable to pay for the violation,

(ii) the period, being thirty days after notice is served, within which the penalty must be paid or a review must be requested, and

(iii) particulars of the manner in which, and the address at which, the penalty must be paid or a review requested.

Extension of period

(2) The Minister may extend the period specified under subparagraph (1)(a)(i) if the Minister is satisfied that the person is unable to comply with the assurance of compliance for reasons beyond the person's control.

Short-form descriptions in notices of violation

(3) The Minister may establish, in respect of each violation, a short-form description to be used in notices of violation.

2001, c. 29, s. 59.

Deemed violation

34. (1) A person who enters into an assurance of compliance under paragraph 33(1)(a) is, unless a review is requested under subsection (2), deemed to have committed the violation in respect of which the assurance was entered into.

Request for review

(2) A person who enters into an assurance of compliance may, within forty-eight hours after the assurance is signed, unless a notice of default is served within that period under subsection 36(1), file a request with the Tribunal for a review of the facts of the violation, in which case the assurance is deemed to be a notice of violation and a review under subsection 39(1) of the facts of the violation and of the amount of the penalty is deemed to have been requested.

2001, c. 29, s. 59.

When assurance of compliance complied with

35. If the Minister is satisfied that an assurance of compliance under paragraph 33(1)(a) has been complied with, the Minister shall cause a notice to that effect to be served on the person and, on the service of the notice,

(a) no further proceedings may be taken against the person with respect to the violation in respect of which the assurance was entered into; and

(b) any security deposited under subparagraph 33(1)(a)(ii) must be returned to the person.

2001, c. 29, s. 59.

When assurance of compliance not complied with

36. (1) If the Minister is of the opinion that a person who has entered into an assurance of compliance has not complied with it, the Minister may cause a notice of default to be served on the person to the effect that, unless a member determines under section 37, or an appeal panel decides under section 40, that the assurance has been complied with,

(a) the person is liable to pay double the amount of the penalty set out in the assurance; or

(b) the security deposited under subparagraph 33(1)(a)(ii) is forfeited to Her Majesty in right of Canada.

Contents of notice

(2) A notice under subsection (1) shall include the address at which, and the date, being thirty days after the notice is served, on or before which, a request for a review may be filed.

No set-off

(3) On the service of a notice of default, the person served has no right of set-off against any amount spent by the person under the assurance of compliance.

2001, c. 29, s. 59.

Request for review

37. (1) A person who is served with a notice under subsection 36(1) may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review.

Time and place for review

(2) On receipt of a request filed under subsection (1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.

Review procedure

(3) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.

Burden of proof

(4) The burden is on the Minister to establish that the person did not comply with the assurance of compliance referred to in the notice. The person is not required, and shall not be compelled, to give any evidence or testimony in the matter.

Certain defences not available

(5) A person does not have a defence by reason that the person exercised all due diligence to comply with the assurance of compliance.

Determination

(6) The member may confirm the Minister's decision or determine that the person has complied with the assurance of compliance.

2001, c. 29, s. 59.

Return of security

38. Any security deposited under subparagraph 33(1)(a)(ii) shall be returned to the person if

(a) the person pays double the amount of the penalty set out in the assurance of compliance in accordance with a notice under subsection 36(1); or

(b) a member determines under subsection 37(6), or an appeal panel decides under subsection 40(3), that the assurance has been complied with.

2001, c. 29, s. 59.

Notice of violation

39. (1) A person served with a notice of violation under paragraph 33(1)(b) must

(a) pay the amount of the penalty; or

(b) within thirty days after being served or any further time that the Tribunal on application allows, file with the Tribunal a written request for a review of the facts of the violation or the amount of the penalty.

When review not requested

(2) If a review of the facts of the violation is not requested, the person is deemed to have committed the violation in respect of which the notice was served.

Time and place for review

(3) On receipt of a request filed under paragraph (1)(b), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.

Review procedure

(4) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.

Burden of proof

(5) The burden is on the Minister to establish that the person committed the violation referred to in the notice. The person is not required, and shall not be compelled, to give any evidence or testimony in the matter.

Determination

(6) The member may confirm the Minister's decision or, subject to any regulations made under paragraph 51(c), substitute his or her own determination.

2001, c. 29, s. 59.

Right of appeal

40. (1) The Minister or the person who requested the review of the decision may appeal a determination made under subsection 37(6) or 39(6) to the Tribunal within thirty days after the determination.

Loss of right of appeal

(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.

Disposition of appeal

(3) The appeal panel of the Tribunal assigned to hear the appeal may

(a) in the case of a determination made under subsection 37(6), dismiss the appeal or allow the appeal and substitute its own decision; or

(b) in the case of a determination made under subsection 39(6), dismiss the appeal, or allow the appeal and, subject to regulations made under paragraph 51(c), substitute its own decision.

2001, c. 29, s. 59.


Choice of Proceedings

How contravention may be proceeded with

41. If a contravention can be proceeded with as a violation or as an offence, the Minister may commence proceedings in respect of that contravention as a violation or recommend that it be proceeded with as an offence, but it may be proceeded with only as one or the other.

2001, c. 29, s. 59.


Recovery of Debts

Debts due to Her Majesty

42. The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in a court of competent jurisdiction:

(a) unless a review of the amount of a penalty is requested under subsection 39(1), the amount of the penalty, from the time the notice of violation that sets out the penalty is served;

(b) the amount of a penalty set out in a notice of default referred to in subsection 36(1), from the time the notice under that subsection is served;

(c) the amount of a penalty determined by a member under section 39, or decided by an appeal panel under section 40, from the time of the respective determination or decision; and

(d) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in any of paragraphs (a) to (c).

2001, c. 29, s. 59.

Certificate

43. (1) All or part of a debt referred to in section 42 in respect of which there is a default of payment may be certified by the Minister or the Tribunal, as the case may be.

Registration of certificate

(2) On production to the Federal Court, a certificate shall be registered. When it is registered, a certificate has the same force and effect, and proceedings may be taken in connection with it, as if it were a judgment obtained in that Court for a debt of the amount specified in it and all reasonable costs and charges attendant on its registration.

2001, c. 29, s. 59.


Rules of Law about Violations

Violations are not offences

44. For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.

2001, c. 29, s. 59.

Defence

45. For greater certainty, no person is liable for the commission of a violation if the person exercised all due diligence to prevent the commission.

2001, c. 29, s. 59.

Violation by employee or agent

46. (1) A person is liable for a violation committed by their employee or agent, whether or not the employee or agent has been identified or proceeded against under sections 33 to 43.

Liability of operator of a vessel

(2) The operator of a vessel is liable for a violation committed in relation to the vessel by another person, whether or not the other person has been identified or proceeded against under sections 33 to 43 unless, at the time of the violation, the vessel was in the possession of another person without the operator's consent.

Liability of operator of marine facility

(3) The operator of a marine facility is liable for a violation committed with their consent by another person in relation to the facility, whether or not the other person has been identified or proceeded against under sections 33 to 43.

Officers, etc., of corporation

(4) An officer, director or agent of a corporation that commits a violation under this Act is a party to and liable for the violation if he or she directed, authorized, assented to, acquiesced in or participated in the commission of the violation, whether or not the corporation has been identified or proceeded against under sections 33 to 43.

2001, c. 29, s. 59.


General Provisions

Notations removed

47. (1) Unless the Minister is of the opinion that it is not in the public interest to do so, five years after the last day on which any of the following events occurs, the Minister is to remove every notation of violation or default, and every suspension or cancellation of the designation of or refusal to designate or to renew the designation of a person as a screening officer on prescribed grounds, from any records that the Minister may keep respecting the person:

(a) payment by the person of every penalty that the person is liable to pay after a notice of violation, a notice of default, a determination of a member of the Tribunal on review or a decision of an appeal panel of the Tribunal; or

(b) the suspension or cancellation of the designation of, or the refusal to designate or to renew the designation of, the person as a screening officer under section 19.2.

Duty to notify

(2) When the Minister is of the opinion that removal of a notation is not in the public interest, the Minister shall give notice of that fact to the person.

Contents of notice

(3) A notice under subsection (2) shall provide all relevant information concerning the grounds on which the Minister has refused to remove the notation and shall include the address at which, and the date, being thirty days after the notice is served, on or before which, a request for a review may be filed.

Review

(4) Subsections 37(1) to (3) apply in respect of a refusal to remove a notation, with any modifications that the circumstances require.

Determination

(5) The member of the Tribunal assigned to conduct the review may confirm the Minister's decision or refer the matter back to the Minister for reconsideration.

Right of appeal

(6) The person may, within thirty days after a determination is made under subsection (5), appeal the determination to the Tribunal.

Loss of right of appeal

(7) If the person does not appear at the review hearing, the person is not entitled to appeal a determination unless they establish that there was sufficient reason to justify their absence.

Disposition of appeal

(8) The appeal panel of the Tribunal assigned to hear the appeal may dismiss the appeal or refer the matter back to the Minister for reconsideration.

2001, c. 29, s. 59.

Public record

48. The Minister shall keep a public record of notations of violations or default that appear on any record that the Minister may keep respecting persons under this Act.

2001, c. 29, s. 59.

Limitation period

49. No notice of violation may be issued more than two years after the Minister becomes aware of the violation.

2001, c. 29, s. 59.

Certificate of Minister

50. A document that purports to have been issued by the Minister and certifies the day on which the Minister became aware of a violation is evidence, without proof of the signature or official character of the person appearing to have signed the document, that the Minister became aware of the violation on that day.

2001, c. 29, s. 59.


Regulations

Regulations

51. The Governor in Council may make regulations

(a) designating, as a violation that may be proceeded with in accordance with sections 33 to 46, 49 and 50, the contravention of a provision that is an offence under this Act;

(b) designating violations that, if continued on more than one day, constitute a separate violation for each day on which they are continued;

(c) designating violations that may be proceeded with by issuing notices of violation and fixing a penalty or a range of penalties in respect of each such violation, up to a maximum of $25,000 but in any event not greater than the maximum fine that would be payable if the violation were proceeded with by way of summary conviction; and

(d) prescribing anything that by subsections 33 to 50 is to be prescribed.

2001, c. 29, s. 59.


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