First Session, Thirty-eighth Parliament,
53-54 Elizabeth II, 2004-2005
STATUTES OF CANADA 2005CHAPTER 23
An Act to amend the Migratory Birds Convention Act, 1994 and the Canadian Environmental Protection Act, 1999
ASSENTED TO
19th MAY, 2005
BILL C-15
SUMMARY
This enactment amends the Migratory Birds Convention Act, 1994 to
(a) state that that Act applies in the exclusive economic zone of Canada;
(b) protect migratory birds from the effects caused by deposits of harmful substances, such as oil, in the exclusive economic zone of Canada;
(c) state that that Act applies to vessels and their owners and operators;
(d) subject masters, chief engineers, owners and operators of vessels and directors and officers of corporations to a duty of care to ensure compliance with that Act and its regulations;
(e) expand the enforcement powers to include orders to direct and detain vessels found to be in contravention of that Act or its regulations;
(f) expand the jurisdiction of Canadian courts to include the exclusive economic zone of Canada;
(g) increase penalties; and
(h) permit courts to impose additional punishments in the form of orders covering matters such as environmental audits, community service and the creation of scholarships for students enrolled in environmental studies.
This enactment also amends the Canadian Environmental Protection Act, 1999 to
(a) protect the marine environment from the wrongful activities of ships as well as persons;
(b) include prohibitions concerning the disposal and incineration of substances at sea by ships;
(c) include regulation-making authority to deal with disposals of substances during the normal operations of ships, aircrafts, platforms and other structures;
(d) expand the enforcement powers to include orders to direct ships found to be in contravention of that Act or its regulations;
(e) subject owners of ships and directors and officers of corporations that own ships to a duty of care to ensure that ships comply with the provisions of that Act and its regulations concerning disposal at sea and with orders and directions made under that Act; and
(f) expand the jurisdiction of Canadian courts to include the exclusive economic zone of Canada.
Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca
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53-54 ELIZABETH II
——————
CHAPTER 23
An Act to amend the Migratory Birds Convention Act, 1994 and the Canadian Environmental Protection Act, 1999
[Assented to 19th May, 2005]
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
1994, c. 22
MIGRATORY BIRDS CONVENTION ACT, 1994
1. (1) The definition “conveyance” in subsection 2(1) of the Migratory Birds Convention Act, 1994 is replaced by the following:
“conveyance”« moyen de transport »
“conveyance” means a vehicle, aircraft, vessel or any other contrivance that is used to move persons or goods;
(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“Canadian vessel”« bâtiment canadien »
“Canadian vessel” means a vessel that
(a) is registered, listed or licensed under the Canada Shipping Act,
(b) is not registered, listed or licensed under the Canada Shipping Act or under the laws of another state but is owned by one or more persons each of whom is
(i) a Canadian citizen,
(ii) in the case of a vessel that is not required to be registered, listed or licensed under that Act, a person who is resident and domiciled in Canada, or
(iii) a corporation incorporated under the laws of Canada or a province, that has its principal place of business in Canada, or
(c) is not registered, listed or licensed under the Canada Shipping Act but is owned or operated by Her Majesty in right of Canada;
“deposit”« immersion ou rejet »
“deposit” means any discharging, spraying, releasing, spilling, leaking, seeping, pouring, emitting, emptying, throwing, dumping or placing;
“environment”« environnement »
“environment” means the components of the Earth and includes
(a) air, land and water,
(b) all layers of the atmosphere,
(c) all organic and inorganic matter and living organisms, and
(d) the interacting natural systems that include the components referred to in paragraphs (a) to (c);
“fixed platform”« plate-forme fixe »
“fixed platform” means an artificial island or a marine installation or structure that is permanently attached to the seabed for the purpose of exploration or exploitation of resources or for other economic purposes;
“foreign national”« étranger »
“foreign national” has the same meaning as in subsection 2(1) of the Immigration and Refugee Protection Act;
“foreign vessel”« bâtiment étranger »
“foreign vessel” means a vessel that is not a Canadian vessel;
“master”« capitaine »
“master” means every person who has command or charge of a vessel, but does not include a licensed pilot within the meaning of section 2 of the Pilotage Act;
“operator”« exploitant »
“operator”, in respect of a vessel, means a person other than an owner who has, either by law or by contract, the possession and use of the vessel;
“owner”« propriétaire »
“owner”, in respect of a vessel, means an actual owner of the vessel if the vessel is not registered or listed, or a registered owner if it is registered or listed;
“vessel”« bâtiment »
“vessel” means a boat, ship or craft designed, used or capable of being used solely or partly for navigation in, on, through or immediately above water, without regard to the method or lack of propulsion, but does not include a fixed platform.
2. The Act is amended by adding the following after section 2:
APPLICATION
Application
2.1 This Act applies in Canada and in the exclusive economic zone of Canada.
3. Section 4 of the Act and the heading that follows it are replaced by the following:
Purpose
4. The purpose of this Act is to implement the Convention by protecting and conserving migratory birds — as populations and individ­ual birds — and their nests.
PROHIBITIONS
4. The Act is amended by adding the following after section 5:
Prohibition
5.1 (1) No person or vessel shall deposit a substance that is harmful to migratory birds, or permit such a substance to be deposited, in waters or an area frequented by migratory birds or in a place from which the substance may enter such waters or such an area.
Prohibition
(2) No person or vessel shall deposit a substance or permit a substance to be deposited in any place if the substance, in combination with one or more substances, results in a substance — in waters or an area frequented by migratory birds or in a place from which it may enter such waters or such an area — that is harmful to migratory birds.
Saving
(3) Subsections (1) and (2) do not apply if
(a) the deposit is authorized under the Canada Shipping Act; or
(b) the substance is of a type and quantity, and the deposit is made under conditions, authorized under an Act of Parliament other than the Canada Shipping Act, or authorized by the Minister for scientific purposes.
Prohibition
5.2 No person shall
(a) wilfully destroy or cause to be destroyed a document, a record or data that is required to be kept under this Act or the Canada Shipping Act, or wilfully alter or cause to be altered such a document, a record or data with intent to mislead;
(b) make or cause to be made a false entry, or omit to make or cause to be omitted to be made a required entry, in a document, a record or data that is required to be kept under this Act or the Canada Shipping Act;
(c) wilfully obstruct or hinder a person who is engaged in carrying out duties or functions under this Act or a person acting under their direction and control; or
(d) knowingly provide false or misleading information or knowingly make a false or misleading statement, either orally or in writing, to a person who is engaged in carrying out duties or functions under this Act or a person acting under their direction and control.
Prohibition
5.3 (1) No Canadian employer shall dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee, or deny an employee a benefit of employment, because
(a) the employee, acting in good faith and on the basis of reasonable belief, disclosed to a federal minister, or any employee of the public service of Canada, that the employer or another person had contravened or had intended to contravene a provision of this Act or the regulations;
(b) the employee, acting in good faith and on the basis of reasonable belief, refused or stated an intention to refuse to do anything that is a contravention of a provision of this Act or the regulations;
(c) the employee, acting in good faith and on the basis of reasonable belief, did or stated an intention to do anything that is required to be done to prevent a contravention of a provision of this Act or the regulations; or
(d) the employer believes that the employee will do anything referred to in paragraph (a), (b) or (c).
Definition of “Canadian employer”
(2) In subsection (1), “Canadian employer” means an employer that is a Canadian citizen, a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or a corporation incorporated under the laws of Canada or a province that has its principal place of business in Canada.
Saving
(3) Nothing in this section impairs any right of an employee either at law or under an employment contract or collective agreement.
Definitions of “employee” and “employer”
(4) In this section, “employee” includes an independent contractor and “employer” has a corresponding meaning.
OBLIGATIONS
Obligation — owners, operators, etc.
5.4 Every master, chief engineer, owner and operator of a vessel — and, if the owner or operator is a corporation, every director and officer of the corporation who is in a position to direct or influence its policies or activities relating to conduct prohibited by section 5.1 — shall take all reasonable care to ensure that the vessel and all persons on board the vessel comply with section 5.1.
Obligation — directors and officers
5.5 Every director and officer of a corporation shall take all reasonable care to ensure that the corporation complies with this Act and the regulations.
5. (1) Subsection 6(3) of the Act is replaced by the following:
Certificate of designation
(3) Every game officer must be provided with a certificate of designation as a game officer in a form approved by the Minister and, on entering any place under this Act, the officer shall, on request, show the certificate to the person in charge or control of the place.
(2) Subsection 6(6) of the Act is replaced by the following:
Arrest without warrant
(6) A game officer may arrest a person without a warrant if they believe, on reasonable grounds, that the person has committed an offence under this Act or if they find the person committing or about to commit an offence under this Act.
6. (1) The portion of subsection 7(1) of the Act before paragraph (a) is replaced by the following:
Inspections
7. (1) For the purpose of verifying compliance with this Act and the regulations, a game officer may, subject to subsection (3), at any reasonable time, enter and inspect any place, including a vessel, in which they believe, on reasonable grounds, there is any thing to which this Act or the regulations apply or any document, record or data relating to the administration of this Act or the regulations, and the game officer may
(2) Subsection 7(1) of the Act is amended by striking out the word “and” at the end of paragraph (c) and by adding the following after paragraph (c):
(c.1) use or cause to be used any computer system or data processing system at the place to examine any data contained in or available to the system;
(c.2) reproduce or cause to be reproduced any record from the data in the form of a printout or other intelligible output;
(c.3) take a printout or other output for inspection or copying;
(c.4) use or cause to be used any copying equipment at the place to make copies of the record or document; and
(3) Subsections 7(2) to (4) of the Act are replaced by the following:
Duty of person in charge or control
(1.1) Every person who is in charge or control of a place that is inspected under this section shall permit a game officer and every person acting under their direction and control to do anything referred to in paragraphs (1)(c.1) to (c.4).
Entry of vessels
(1.2) Subject to subsection (3), for the purpose of verifying compliance with this Act and the regulations, a game officer who believes on reasonable grounds that a vessel has on board any thing to which this Act or the regulations apply or any document, record or data relating to the administration of this Act or the regulations may, in Canadian waters or the exclusive economic zone of Canada, board the vessel at any reasonable time and travel on it.
Accommodation
(1.3) A game officer and every person acting under their direction and control who travels on a vessel shall be carried free of charge, and the master shall provide them with suitable accommodation and food free of charge.
Stopping and detaining conveyances
(2) A game officer may, at any reasonable time, direct that a conveyance be stopped or be moved to a place where an inspection can be carried out and may, for a reasonable time, detain a conveyance.
Dwelling-place
(3) The game officer may not enter a dwelling-place except with the consent of the person in charge or control of the dwelling-place or under the authority of a warrant.
Inspection warrant — dwelling place
(4) On ex parte application, a justice, as defined in section 2 of the Criminal Code, may issue a warrant authorizing a game officer to enter a dwelling-place, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that
(a) the conditions for entry described in subsection (1) exist in relation to the dwelling-place;
(b) entry to the dwelling-place is necessary for the administration of this Act or the regulations;
(c) entry to the dwelling-place has been refused or there are reasonable grounds to believe that entry will be refused; and
(d) all reasonable attempts have been made to notify the owner or person in charge or control of the dwelling-place.
Inspection warrant — non-dwellings
(5) On ex parte application, a justice, as defined in section 2 of the Criminal Code, may issue a warrant authorizing a game officer to enter a place other than a dwelling-place, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that
(a) the conditions for entry described in subsection (1) exist in relation to the place;
(b) entry to the place is necessary for the administration of this Act or the regulations;
(c) entry to the place has been refused, there are reasonable grounds to believe that entry will be refused, the game officer is not able to enter without the use of force or the place is abandoned; and
(d) all reasonable attempts have been made to notify the owner, operator or person in charge or control of the place.
Waiving notice
(6) The justice may waive the requirement to give notice under paragraph (4)(d) or (5)(d) if the justice is satisfied that attempts to give the notice would be unsuccessful because the owner, operator or person in charge or control is absent from the justice’s jurisdiction, or that it is not in the public interest to give the notice.
Person under direction and control
(7) A person who is acting under a game officer’s direction and control may accompany a game officer who is inspecting a place under this section, may enter the place and may exercise any of the powers referred to in paragraphs (1)(b) to (c.4).
Use of force
(8) A game officer may not use force in executing a warrant under this section unless the warrant specifically authorizes the use of force.
Exclusive economic zone
(9) Every power that may be exercised in Canada under this section may be exercised in the exclusive economic zone of Canada.
Consent
(10) The consent of the Minister is required for the exercise of any power under this section in the exclusive economic zone of Canada in relation to a foreign vessel. However, for greater certainty, the consent of the Attorney General of Canada is not required.
7. Section 8 of the Act is replaced by the following:
Search and seizure without warrant
8. For the purpose of ensuring compliance with this Act and the regulations, a game officer may exercise the powers of search and seizure provided in section 487 of the Criminal Code without a search warrant if the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be feasible to obtain it.
Powers of direction and detention of vessels
8.1 (1) A game officer may direct a vessel to any place in Canadian waters or the exclusive economic zone of Canada or make a detention order in relation to a vessel or do both, if they have reasonable grounds to believe that the vessel or a person on board the vessel has committed, is committing or is about to commit an offence under section 5.1 in Canadian waters and that the vessel was, is being or is about to be used in connection with the commission of the offence.
Powers of direction and detention of vessels
(2) A game officer may direct a vessel to any place in Canadian waters or the exclusive economic zone of Canada or make a detention order in relation to a vessel or do both, if they have reasonable grounds to believe that
(a) the vessel or a person on board the vessel has committed, is committing or is about to commit an offence under section 5.1 in the exclusive economic zone of Canada and the vessel was, is being or is about to be used in connection with the commission of the offence; and
(b) commission of the offence will cause major damage to the environment, or an actual threat of major damage to the environment, in Canada or in the exclusive economic zone of Canada.
Major damage
(3) For greater certainty, the deposit of a substance in contravention of section 5.1 that, together with other deposits made in contravention of that section by one or more persons or vessels, has a cumulative or aggregate effect may cause major damage to the environment.
Order in writing
(4) A detention order shall be in writing and be addressed to every person at the place identified in the order who is empowered to give a clearance to the vessel.
Service of order
(5) Notice of the detention order shall be served by delivering a copy of the notice personally to the master or, if service cannot reasonably be effected personally, by posting a copy of the notice on a conspicuous part of the vessel.
Duty of operator of vessel
(6) Once notice of the detention order is served, no master, owner or operator of the vessel shall order the vessel to contravene the order.
Duty of persons empowered to give clearance
(7) Subject to subsection (8), no person who has received notice of the detention order shall give clearance to the vessel to which the order relates.
When clearance may be given
(8) A person who has received notice of the detention order may give clearance to the vessel to which the order relates if
(a) neither the vessel nor any person is charged with the offence that gave rise to the making of the order within 30 days after the day on which the order is made;
(b) within 30 days after the day on which the order is made, the vessel or a person is charged with the offence and every accused has appeared in Canada to answer to the charge;
(c) Her Majesty in right of Canada is given security, in a form determined by the Attorney General of Canada, for payment of the maximum fine that might be imposed as a result of a conviction of every accused and costs that might be incurred in proceedings in connection with the charge or charges, or payment of any lesser amount that is approved by the Attorney General of Canada;
(d) all proceedings in respect of the offence that gave rise to the making of the order are discontinued; or
(e) the order is rescinded by a game officer.
Consent of Attorney General of Canada
(9) The powers to direct and detain a vessel may not be exercised in the exclusive economic zone of Canada in relation to a foreign vessel without the consent of the Attorney General of Canada.
Foreign state to be notified
(10) If a vessel to which a detention order relates is registered in a foreign state, that state is to be notified that the order was made.
Right of passage
8.2 A person who is engaged in carrying out duties or functions under this Act and any person acting under their direction and control may enter on and pass through or over private property without being liable for doing so and without any person having the right to object to that use of the property.
Assistance
8.3 An owner, operator or person in charge or control of a place entered by a game officer under this Act, and every person found in the place, shall
(a) give the game officer and every person under their direction and control all reasonable assistance to enable the game officer to carry out their duties and functions under this Act; and
(b) provide the game officer and every person under their direction and control with any information relating to the administration of this Act and the regulations that the game officer may reasonably require.
8. (1) Subsection 12(1) of the Act is amended by adding the following after paragraph (h):
(h.1) respecting the conditions and circumstances under which migratory birds may be killed, captured, injured, taken or disturbed, or nests may be damaged, destroyed, removed or disturbed;
(2) Subsection 12(1) of the Act is amended by adding the following after paragraph (i):
(i.1) respecting documents, records and data that any person or vessel or class of persons or vessels is required to keep or provide under this Act;
(i.2) excluding from the application of any provision of this Act or the regulations a military vessel, a naval auxiliary vessel or a vessel that is owned or operated by a state while it is being used only on government non-commercial service;
(3) Subsection 12(1) of the Act is amended by striking out the word “and” at the end of paragraph (j) and by adding the following after paragraph (j):
(j.1) defining, for the purposes of this Act, any word or expression that is used in this Act and is not defined; and
9. (1) Subsections 13(1) and (2) of the Act are replaced by the following:
Contravention of Act or regulations
13. (1) A person or vessel commits an offence if the person or vessel contravenes
(a) a provision of this Act or the regulations;
(b) an obligation or prohibition arising from this Act or the regulations;
(c) an order or direction made under this Act; or
(d) an order, direction or decision of a court made under this Act.
Penalties
(1.1) Every person or vessel that commits an offence is liable
(a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both; and
(b) on summary conviction, to a fine of not more than $300,000 or to imprisonment for a term of not more than six months, or to both.
Vessel of 5,000 tonnes deadweight or over
(1.11) In the case of an offence under section 5.1 that is committed by a vessel of 5,000 tonnes deadweight or over,
(a) the fine imposed under paragraph (1.1)(a) shall not be less than $500,000; and
(b) the fine imposed under paragraph (1.1)(b) shall not be less than $100,000.
Parties to offence
(1.2) If a corporation commits an offence under this Act, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to the offence, and is liable on conviction to the penalty provided for by this Act, whether or not the corporation is prosecuted for the offence.
Proof of offence — corporation
(1.3) In a prosecution of a corporation for an offence under this Act, other than an offence under paragraph 5.2(a), (c) or (d) or section 5.4 or 5.5, it is sufficient proof of the offence to establish that it was committed by an employee, agent or mandatary of the accused, whether or not the employee, agent or mandatary is identified or prosecuted for the offence.
Proof of offence — vessel
(1.4) In a prosecution of a vessel for an offence under this Act, other than an offence under paragraph 5.2(a), (c) or (d), it is sufficient proof of the offence to establish that it was committed by a person on board the vessel, whether or not the person is identified or prosecuted for the offence.
Directions or orders
(1.5) For the purpose of prosecuting a vessel for contravening a direction or order given under this Act, a direction or order given to the master or a crew member is deemed to have been given to the vessel.
Proof of offence
(1.6) In a prosecution of a master or chief engineer of a vessel for an offence under this Act, other than an offence under paragraph 5.2(a), (c) or (d) or section 5.3, 5.4 or 5.5, it is sufficient proof of the offence to establish that it was committed by a person on board the vessel, whether or not the person is identified or prosecuted for the offence.
Proof of offence
(1.7) In a prosecution of an offence under section 5.4, it is sufficient proof of the offence to establish that a substance was deposited by the vessel contrary to section 5.1.
Due diligence
(1.8) A person or vessel that establishes that they exercised due diligence to prevent the commission of an offence under this Act, other than an offence under paragraph 5.2(a), (c) or (d) or section 5.3, shall not be found guilty of the offence.
Subsequent offences
(2) If a person or vessel is convicted of an offence under this Act a second or subsequent time, the amount of the fine for the subsequent offence may be double the amount set out in subsection (1.1).
(2) Subsection 13(3) of the English version of the Act is replaced by the following:
Continuing offence
(3) A person or vessel that commits or continues an offence on more than one day is liable to be convicted for a separate offence for each day on which the offence is committed or continued.
(3) Subsection 13(5) of the Act is replaced by the following:
Sentencing considerations
(4.1) A court that imposes a sentence shall take the following factors into account, in addition to any other principles that it is required to consider:
(a) the harm or risk of harm caused by the commission of the offence;
(b) whether the offender was found to have committed the offence intentionally, recklessly or inadvertently;
(c) whether the offender was found to have been negligent or incompetent or to have shown a lack of concern with respect to the commission of the offence;
(d) any property, benefit or advantage received or receivable by the offender to which, but for the commission of the offence, the offender would not have been entitled;
(e) any evidence from which the court may reasonably conclude that the offender has a history of non-compliance with this Act or the regulations; and
(f) all available sanctions that are reasonable in the circumstances, with particular attention to the circumstances of aboriginal offenders.
Additional fine
(5) If a person or vessel is convicted of an offence and the court is satisfied that, as a result of the commission of the offence, a monetary benefit accrued to the person or to an owner or operator of the vessel, or another person incurred a monetary loss,
(a) the court may order the offender to pay an additional fine in an amount equal to the court’s estimate of the amount of the monetary benefit or loss; and
(b) the additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.
Application of fines
(6) All fines received by the Receiver General in respect of the commission of an offence under this Act shall be received for the special purpose of protecting and conserving migratory birds or the environment and credited to the Environmental Damages Fund, an account in the accounts of Canada.
10. Subsection 14(1) of the English version of the Act is replaced by the following:
Forfeiture
14. (1) If a person or vessel is convicted of an offence, the convicting court may, in addition to any punishment imposed, order that any seized thing by means of or in relation to which the offence was committed, or any proceeds of its disposition, be forfeited to Her Majesty.
11. Section 15 of the English version of the Act is replaced by the following:
Retention or sale
15. If a fine is imposed on a person or vessel convicted of an offence, any seized thing, or any proceeds of its disposition, may be retained until the fine is paid, or the thing may be sold in satisfaction of the fine and the proceeds applied, in whole or in part, in payment of the fine.
12. (1) The portion of section 16 of the Act before paragraph (a) is replaced by the following:
Court order
16. (1) If a person or vessel is convicted of an offence, the court may, in addition to any punishment imposed and having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing one or more of the following prohibitions, directions or requirements:
(2) Paragraphs 16(1)(a) and (b) of the English version of the Act are replaced by the following:
(a) prohibiting the offender from doing any act or engaging in any activity that could, in the opinion of the court, result in the continuation or repetition of the offence;
(b) directing the offender to take any action the court considers appropriate to remedy or avoid any harm to any migratory bird or nest that resulted or may result from the commission of the offence;
(3) Subsection 16(1) of the Act is amended by adding the following after paragraph (b):
(b.1) directing the offender to have an environmental audit conducted by a person of a class specified by the court at the times specified by the court, and directing the offender to remedy any deficiencies revealed by the audit;
(4) Paragraphs 16(1)(c) and (d) of the English version of the Act are replaced by the following:
(c) directing the offender to publish, in a manner the court considers appropriate, the facts relating to the commission of the offence;
(d) directing the offender to pay the Minister or the government of a province compensation, in whole or in part, for the cost of any remedial or preventive action taken by or on behalf of the Minister or that government as a result of the commission of the offence;
(5) Subsection 16(1) of the Act is amended by adding the following after paragraph (d):
(d.1) directing the offender to pay, in a manner specified by the court, an amount to enable research to be conducted into the protection of the migratory bird populations in respect of which the offence was committed;
(d.2) directing the offender to pay, in a manner specified by the court, an amount to an educational institution for scholarships for students enrolled in environmental studies;
(6) Paragraphs 16(1)(e) to (h) of the English version of the Act are replaced by the following:
(e) directing the offender to perform community service in accordance with any reasonable conditions specified in the order;
(f) directing the offender to submit to the Minister, on application to the court by the Minister within three years after the conviction, any information about the offender’s activities that the court considers appropriate in the circumstances;
(g) directing the offender to post a bond or pay into court an amount of money that the court considers appropriate to ensure compliance with any prohibition, direction or requirement under this section; and
(h) requiring the offender to comply with any other conditions that the court considers appropriate to secure the offender’s good conduct and to prevent the offender from repeating the offence or committing other offences.
(7) Section 16 of the Act is amended by adding the following after subsection (1):
Compensation for loss of property
(2) The court may also, at the time sentence is imposed and on the application of a person who incurred a monetary loss as a result of the commission of the offence — other than an owner or operator of a vessel that committed the offence — order the offender to pay that person compensation for the loss.
Enforcement
(3) If the amount that is ordered to be paid is not paid immediately, the applicant may, by filing the order, enter the amount as a judgment in the superior court of the province in which the trial was held, and the judgment is enforceable against the offender as if it were a judgment rendered against them in that court in civil proceedings.
Variation of sanctions
(4) A court that has made an order under subsection (1) in relation to an offender may, on application by the offender or the Attorney General of Canada, require the offender to appear before it and, after hearing the offender and the Attorney General, vary the order in any of the following ways that, in the court’s opinion, is appropriate because of a change in the offender’s circumstances since the order was made:
(a) by making changes in the order or the conditions specified in it or extending the period during which it is to remain in force for a period of not more than one year; or
(b) by decreasing the period during which the order is to remain in force or relieving the offender of compliance with any condition that is specified in it, either absolutely or partially, or for a specific period.
Notice
(5) Before making an order under subsection (4), the court may direct that notice be given to any person that it considers to be interested and it may hear that person.
Subsequent applications with leave
(6) If the court hears an application under subsection (4) in respect of an offender, no other application may be made under that subsection with respect to the offender except with leave of the court.
1995, c. 22, s. 18 (Sch. IV, item 27)
13. Section 17 of the English version of the Act is replaced by the following:
Suspended sentence
17. (1) If a person or vessel is convicted of an offence and the court suspends the passing of sentence under paragraph 731(1)(a) of the Criminal Code, the court may, in addition to any probation order made under that paragraph, make an order under section 16.
Imposition of sentence
(2) If the person or vessel does not comply with the order or is convicted of another offence within three years after the order was made, the court may, on the application of the prosecution, impose any sentence that could have been imposed if the passing of sentence had not been suspended.
14. The Act is amended by adding the following after section 17:
Civil remedies not affected
17.1 (1) No civil remedy for any conduct is suspended or affected by reason only that the conduct is an offence under this Act.
Remedies not repealed, etc.
(2) Nothing in this Act repeals, removes or reduces any remedy available under a law in force in Canada.
Damages caused by vessel
(3) A court shall not order an offender to pay compensation to the Minister or a government under paragraph 16(1)(d) or to a person under subsection 16(2) in connection with damage caused by a vessel if the Minister, government or person may make a claim for compensation for the damage under the Marine Liability Act or the Arctic Waters Pollution Prevention Act.
15. The Act is amended by adding the following after section 18:
Documents, records and data
18.1 In a proceeding under this Act, a document, a record or data that is required to be kept under this Act or the Canada Shipping Act is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in it.
Analyst’s certificate
18.2 (1) In a proceeding under this Act, a certificate that appears to be signed by an analyst, that states that an article, sample or substance has been analysed or examined by the analyst and that contains the results of the analysis or examination, is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.
Requiring attendance of analyst
(2) The party against whom a certificate is produced may, with leave of the court, require the analyst’s attendance for the purposes of cross-examination.
Notice of intention to produce certificate
(3) No certificate may be admitted in evidence unless, before the trial, the party that intends to produce it gives reasonable notice of that intention, together with a copy of the certificate, to the party against whom it is intended to be produced.
Proof of service
(4) Service of a certificate may be proved by oral evidence given under oath by the person who claims to have served it, or by that person’s affidavit or solemn declaration.
Attendance for examination
(5) Despite subsection (4), the court may require the person who appears to have signed the affidavit or solemn declaration to appear before it for examination or cross-examination in respect of the issue of proof of service.
Definition of “analyst”
(6) For the purposes of this section, “analyst” means a person who is recognized by a laboratory or research centre as having the authority to perform the analysis or examination that is the subject of the certificate.
APPLICATION OF CRIMINAL LAW
Offences deemed committed in Canada
18.3 (1) An act or omission that is an offence under this Act — or that is committed by or against a person who is engaged in carrying out duties or functions, or exercising a power, under this Act or a person acting under their direction and control and that would be an offence under the Criminal Code if it were committed in Canada — is deemed to be committed in Canada if it is committed in the exclusive economic zone of Canada.
Offences deemed committed in Canada
(2) An act or omission that would be an offence under this Act if it were committed in Canada — or that is committed by or against a person who is engaged in carrying out duties or functions, or exercising a power, under this Act or a person acting under their direction and control and that would be an offence under the Criminal Code if it were committed in Canada — is deemed to be committed in Canada if it is committed at any place on the seas, other than a place that is in the territorial sea or internal waters of a state other than Canada, in the course of hot pursuit of a vessel that commenced while the vessel was in Canadian waters or in the exclusive economic zone of Canada.
Exercising powers of arrest, entry, etc.
(3) Every power — including arrest, entry, search and seizure — that may be exercised in Canada in respect of an offence under this Act or under the Criminal Code may, in respect of an offence referred to in subsection (1), be exercised in the exclusive economic zone of Canada and, in respect of an offence referred to in subsection (2), be exercised at any place on the seas other than a place that is in the territorial sea or internal waters of a state other than Canada.
Consent of Attorney General of Canada
(4) The powers referred to in subsection (3) may not be exercised in relation to a foreign vessel, or to a foreign national on board a foreign vessel, without the consent of the Attorney General of Canada.
Jurisdiction of justice or judge
(5) A justice, as defined in section 2 of the Criminal Code, or a judge in any territorial division in Canada has jurisdiction to authorize an arrest, entry, search or seizure in connection with an offence referred to in subsection (1) or (2) as if the offence had been committed in that territorial division.
Consent of Attorney General of Canada
(6) A proceeding that is commenced in respect of an offence referred to in subsection (1) or (2) shall not be continued if the accused is a foreign vessel, or if the accused is a foreign national and the offence was committed while the accused was on board a foreign vessel, unless the Attorney General of Canada consents to the continuation no later than eight days after the proceeding is commenced.
Jurisdiction of courts
18.4 A proceeding in respect of an offence referred to in subsection 18.3(1) or (2) may be commenced in any territorial division in Canada whether or not the accused is in Canada, and the accused may be tried and punished for that offence as if the offence had been committed in that territorial division.
Proceedings against vessels
18.5 (1) The provisions of this Act and the Criminal Code relating to indictable or summary conviction offences that apply to persons apply also to vessels, with any modifications that the circumstances require.
Service on vessel
(2) If a vessel is charged with an offence under this Act, the summons may be served on the vessel by leaving it with the master or any officer of the vessel or by posting it on a conspicuous part of the vessel.
Appearance at trial
(3) The vessel shall appear by counsel or a representative. If the vessel does not appear, a court may, on proof of service of the summons, proceed to hold the trial in the absence of the vessel.
Proceedings on indictment
(4) For greater certainty, subsection (3) applies to a trial on an indictment.
16. The Act is amended by adding the following after section 19:
DISCLOSURE OF INFORMATION
Purposes for which information may be disclosed
19.1 (1) Subject to the Privacy Act, information obtained in the administration or enforcement of this Act may be disclosed
(a) as necessary for the purposes of the administration or enforcement of this Act;
(b) in order to notify another Party to the Convention of an environmental emergency that has been discovered or a potential environmental risk;
(c) in order to notify the public of an environmental emergency that has been discovered, or a potential environmental risk, that may affect public health or public safety; or
(d) under an agreement or arrangement between the Government of Canada or any of its institutions and any other government in Canada, the government of a foreign state or an international organization or any of their institutions, or between the Minister and any other federal minister, if the purpose of the agreement or arrangement is
(i) the administration or enforcement of a law,
(ii) the fulfilment of the obligations of a Party under the Convention, or
(iii) research or statistical analysis in relation to the protection and conservation of migratory birds.
Protection from civil proceeding or prosecution
(2) Despite any other Act of Parliament, no civil or criminal proceedings lie against a federal minister or any person who acts on behalf or under the direction of a federal minister, the Government of Canada or any of its institutions, and no proceedings lie against the Crown or any institution of the Government of Canada, for the disclosure in good faith of any information under this Act or for any consequences that flow from that disclosure.
1999, c. 33
CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
17. The heading of Division 3 of Part 7 of the French version of the Canadian Environmental Protection Act, 1999 is replaced by the following:
Immersion en mer
18. The definitions “disposal”, “incineration” and “master” in subsection 122(1) of the Act are replaced by the following:
“disposal”« immersion »
“disposal” means
(a) the disposal of a substance at sea from a ship, an aircraft, a platform or another structure,
(b) the disposal of dredged material into the sea from any source not mentioned in paragraph (a),
(c) the storage on the seabed, in the subsoil of the seabed or on the ice in any area of the sea of a substance that comes from a ship, an aircraft, a platform or another structure,
(d) the deposit of a substance on the ice in an area of the sea,
(e) the disposal at sea of a ship or aircraft,
(f) the disposal or abandonment at sea of a platform or another structure, and
(g) any other act or omission that constitutes a disposal under regulations made under paragraph 135(3)(c),
but does not include
(h) a disposal of a substance that is incidental to or derived from the normal operations of a ship, an aircraft, a platform or another structure or of any equipment on a ship, an aircraft, a platform or another structure, other than the disposal of substances from a ship, an aircraft, a platform or another structure operated for the purpose of disposing of such substances at sea,
(i) the placement of a substance for a purpose other than its mere disposal if the placement is not contrary to the purposes of this Division and the aims of the Convention or the Protocol,
(j) the abandonment of any matter, such as a cable, pipeline or research device, placed on the seabed or in the subsoil of the seabed for a purpose other than its mere disposal, or
(k) a discharge or storage directly arising from, or directly related to, the exploration for, exploitation of and associated off-shore processing of seabed mineral resources.
“incineration”« incinération »
“incineration” means the combustion of a substance on board a ship, a platform or another structure at sea for the purpose of its thermal destruction.
“master”« capitaine »
“master” means the person in command or charge of a ship, but does not include a licensed pilot, within the meaning of section 2 of the Pilotage Act.
19. The Act is amended by adding the following after section 122:
Purpose
Purpose
122.1 The purpose of this Division is to protect the marine environment, particularly by implementing the Convention and the Protocol.
20. Section 123 of the Act is replaced by the following:
Imports for disposal in waters under Canadian jurisdiction
123. (1) No person or ship shall import a substance for disposal in an area of the sea referred to in any of paragraphs 122(2)(a) to (e).
Export for disposal in waters under foreign jurisdiction
(2) No person or ship shall export a substance for disposal in an area of the sea under the jurisdiction of a foreign state or in its internal waters.
21. Section 124 of the Act is amended by adding the following after subsection (1):
Loading in Canada for disposal at sea
(1.1) No ship shall, in Canada, load a substance onto itself for the purpose of disposal in an area of the sea referred to in any of paragraphs 122(2)(a) to (e) and (g) unless
(a) the substance is waste or other matter; and
(b) the loading is done in accordance with a Canadian permit.
22. (1) The portion of subsection 125(1) of the Act before paragraph (a) is replaced by the following:
Disposal in waters under Canadian jurisdiction
125. (1) No person or ship shall dispose of a substance in an area of the sea referred to in any of paragraphs 122(2)(a) to (e) unless
(2) Section 125 of the Act is amended by adding the following after subsection (2):
Disposal by Canadian ship in waters that are not under the jurisdiction of any state
(2.1) No Canadian ship shall dispose of a substance in an area of the sea referred to in paragraph 122(2)(g) unless
(a) the substance is waste or other matter; and
(b) the disposal is done in accordance with a Canadian permit or, if the substance was loaded in the territory of a state that is a contracting party, a permit issued under the Convention or the Protocol by that state.
(3) Section 125 of the Act is amended by adding the following after subsection (3):
Disposal by Canadian ship in waters under foreign jurisdiction
(3.1) No Canadian ship shall dispose of a substance in an area of the sea referred to in paragraph 122(2)(f) unless
(a) the substance is waste or other matter;
(b) the substance was loaded in the foreign state that has jurisdiction over that area;
(c) if the foreign state is a contracting party, the disposal is done in accordance with a permit issued under the Convention or the Protocol by that contracting party; and
(d) if the foreign state is not a contracting party, that state has authorized the disposal and it is done in accordance with a Canadian permit.
(4) Section 125 of the Act is amended by adding the following after subsection (5):
Exception
(6) This section does not apply in respect of any disposal that is authorized under the Canada Shipping Act.
23. (1) Subsection 126(1) of the French version of the Act is replaced by the following:
Incinération dans les eaux relevant du Canada
126. (1) Il est interdit de procéder à l’incinération de substances sur un navire ou sur une plate-forme ou un autre ouvrage dans un espace visé à l’un des alinéas 122(2)a) à e), sauf s’il s’agit de déchets produits à leur bord au cours de leur utilisation normale ou que l’incinération est effectuée conformément à un permis délivré au titre du paragraphe 128(2).
(2) Section 126 of the Act is amended by adding the following after subsection (1):
Incineration by ship
(1.1) No ship shall incinerate a substance on board the ship in an area of the sea referred to in any of paragraphs 122(2)(a) to (e) unless
(a) the substance is waste generated on board the ship during normal operations; or
(b) the incineration is done in accordance with a permit issued under subsection 128(2).
(3) Subsection 126(2) of the French version of the Act is replaced by the following:
Incinération dans les eaux relevant d’un État étranger
(2) Il est interdit de procéder à l’incinération de substances sur un navire canadien ou sur une plate-forme ou un autre ouvrage canadiens dans un espace visé aux alinéas 122(2)f) ou g), sauf s’il s’agit de déchets produits à leur bord au cours de leur utilisation normale ou que l’incinération est effectuée conformément à un permis délivré au titre du paragraphe 128(2).
(4) Section 126 of the Act is amended by adding the following after subsection (2):
Incineration by Canadian ship in waters under foreign jurisdiction
(3) No Canadian ship shall, in an area of the sea referred to in paragraph 122(2)(f) or (g), incinerate a substance on board the ship unless
(a) the substance is waste generated on board the ship during normal operations; or
(b) the incineration is done in accordance with a permit issued under subsection 128(2).
24. Subsection 128(1) of the Act is replaced by the following:
Exception
128. (1) Paragraphs 125(1)(a), (2)(a), (2.1)(a), (3)(a) and (3.1)(a) do not apply if a permit is issued under this section.
25. Paragraph 130(1)(a) of the English version of the Act is replaced by the following:
(a) it is necessary to avert a danger to human life or to a ship, an aircraft, a platform or another structure at sea in situations caused by stress of weather or in any other case that constitutes a danger to human life or a threat to a ship, an aircraft, a platform or another structure at sea;
26. Subsection 135(3) of the Act is amended by striking out the word “and” at the end of paragraph (a) and by adding the following after paragraph (b):
(c) specifying acts or omissions that constitute a disposal for the purposes of paragraph (g) of the definition “disposal” in subsection 122(1);
(d) specifying, for the purposes of paragraph (h) of the definition “disposal” in subsection 122(1), the operations that are deemed to be, or deemed not to be, the normal operations of a ship, an aircraft, a platform or another structure or of any equipment on a ship, an aircraft, a platform or another structure;
(e) specifying, for the purposes of subsections 125(1) to (3.1), disposals that are deemed to be, or deemed not to be, disposals of substances referred to in paragraph (h) of the definition “disposal” in subsection 122(1), which specifications may refer, among other things, to any quantity or concentration of any substance or to any place or area; and
(f) specifying, for the purposes of section 126, the operations that are deemed to be, or deemed not to be, normal operations of ships, including Canadian ships.
27. Section 136 of the English version of the Act is replaced by the following:
Costs and expenses recoverable
136. If the Minister directs an action to be taken by or on behalf of Her Majesty in right of Canada to remedy a condition or mitigate damage resulting from an offence under this Act that arises out of this Division, the costs and expenses of and incidental to taking that action, to the extent that they can be established to have been reasonably incurred in the circumstances, are recoverable by Her Majesty in right of Canada from the person or ship that committed the offence with costs in proceedings brought or taken therefor in the name of Her Majesty in any court of competent jurisdiction.
28. Section 216 of the Act is amended by adding the following in alphabetical order:
“foreign national”« étranger »
“foreign national” has the same meaning as in subsection 2(1) of the Immigration and Refugee Protection Act.
29. The Act is amended by adding the following after section 216:
Definition of “ship that is not a Canadian ship”
216.1 (1) For the purpose of subsections 217(6), 218(16) and (17) and 220(5.1) and section 275.1, a “ship that is not a Canadian ship” does not include a ship that
(a) is not registered, listed or licensed under the Canada Shipping Act or under the laws of another state but is owned by one or more persons each of whom is
(i) a Canadian citizen,
(ii) in the case of a ship that is not required to be registered, listed or licensed under that Act, a person who is resident and domiciled in Canada, or
(iii) a corporation incorporated under the laws of Canada or a province, that has its principal place of business in Canada: or
(b) is not registered, listed or licensed under the Canada Shipping Act but is owned or operated by Her Majesty in right of Canada.
Definition of “committed in the course of enforcement of this Act”
(2) For the purpose of subsections 217(4) and 271.1(2), sections 275.1 and 278.1 and subsections 279(1) and (3), “committed in the course of enforcement of this Act” means committed by or against a person who is engaged in carrying out duties or functions, or exercising a power, under this Act or a person acting under their direction and control.
30. Section 217 of the Act is amended by adding the following after subsection (3):
Powers in exclusive economic zone
(4) Every power — including arrest, entry, search and seizure — that may be exercised in Canada in respect of an offence under this Act or the Criminal Code may, in respect of an offence arising out of a contravention of Division 3 of Part 7 or of any regulation made under that Division, or in respect of an offence under the Criminal Code that is committed in the course of enforcement of this Act, be exercised in an area of the sea referred to in paragraph 122(2)(c) if the offence was committed in that area of the sea.
Exercising powers in cases of hot pursuit
(5) The powers referred to in subsection (4) may be exercised in an area of the sea referred to in paragraph 122(2)(g) if hot pursuit has been commenced in Canada or in an area of the sea referred to in any of paragraphs 122(2)(a) to (e) and (g).
When consent of Attorney General of Canada required
(6) The powers referred to in subsection (4) may not be exercised under that subsection or subsection (5) in relation to a ship that is not a Canadian ship, or to a foreign national who is on board such a ship, without the consent of the Attorney General of Canada.
31. (1) Paragraph 218(8)(a) of the Act is replaced by the following:
(a) board any ship, platform or other structure in an area of the sea referred to in any of paragraphs 122(2)(a) to (e), or any aircraft in Canada, if the enforcement officer believes on reasonable grounds that the ship, platform or other structure or aircraft has on board a substance to be disposed of at sea; and
(2) Subsection 218(9) of the Act is replaced by the following:
Enforcement officer and analyst to receive accommodation
(9) An enforcement officer who travels on a ship, aircraft, platform or other structure under paragraph (8)(b), and any analyst who accompanies the enforcement officer, shall be carried free of charge to and from the disposal site, and the person in command of the ship or aircraft or in charge of the platform or structure shall provide the enforcement officer and analyst with suitable accommodation and food free of charge.
(3) Section 218 of the Act is amended by adding the following after subsection (14):
Inspections in exclusive economic zone
(15) For the purpose of verifying compliance with Division 3 of Part 7 and regulations made under that Division, subsections (1) to (14) also apply in respect of a place in an area of the sea referred to in paragraph 122(2)(c).
Consent of Minister required
(16) The consent of the Minister is required for the exercise in an area of the sea referred to in paragraph 122(2)(c) of any power under this section in relation to a ship that is not a Canadian ship.
Consent of Attorney General not required
(17) For greater certainty, the consent of the Attorney General of Canada is not required for the exercise of any power under this section in relation to a ship that is not a Canadian ship.
32. (1) Section 220 of the Act is amended by adding the following after subsection (5):
Exception in relation to ships that are not Canadian ships
(5.1) Despite subsection (4), an enforcement officer may exercise the powers described in subsection (3) without a warrant in relation to a ship that is not a Canadian ship if
(a) the conditions for obtaining the warrant exist but by reason of exigent circumstances it would not be practical to obtain the warrant; and
(b) the Attorney General of Canada has consented to the exercise of the powers without a warrant.
(2) Section 220 of the Act is amended by adding the following after subsection (7):
Accommodation
(8) A person who is exercising powers described in subsection (3) on a ship, an aircraft, a platform or other structure shall be carried free of charge, and the person in command of the ship or aircraft or in charge of the platform or other structure shall provide the person exercising those powers with suitable accommodation and food free of charge.
33. The Act is amended by adding the following after section 222:
Arrest Without Warrant
Arrest without warrant
222.1 An enforcement officer may arrest without warrant a person or ship that the enforcement officer believes, on reasonable grounds, has committed an offence against this Act or the regulations, or that the enforcement officer finds committing or about to commit an offence against this Act or the regulations.
34. (1) Subsection 225(3) of the Act is replaced by the following:
Service of detention order
(3) A detention order made under subsection (1) in respect of a ship shall be served
(a) by delivering the order to the master of the ship; or
(b) if service cannot reasonably be effected in the manner provided for in paragraph (a), by leaving the order with the person being or appearing to be in command or charge of the ship or, if there is no such person, by placing the order on a conspicuous part of the ship.
Foreign state to be notified
(3.1) If a ship in respect of which a detention order is made under subsection (1) is registered in a foreign state, that state is to be notified that the order was made.
(2) Paragraph 225(6)(b) of the Act is replaced by the following:
(b) if the alleged offence involves the contravention of Division 3 of Part 7 or of any regulation made under that Division, Her Majesty in right of Canada is given security, in a form determined by the Attorney General of Canada, for payment of the maximum fine that might be imposed as a result of a conviction of the person or ship charged with that offence and of costs related to proceedings in connection with the charge or charges, or payment of any lesser amount that is approved by the Attorney General of Canada;
(b.1) if the alleged offence involves the contravention of this Act or the regulations, other than a contravention referred to in paragraph (b), Her Majesty in right of Canada is given security for payment of the maximum fine that might be imposed as a result of a conviction of the person charged with that offence and of costs related to proceedings in connection with the charge, or payment of any lesser amount that is approved by the Minister or a person designated by the Minister for the purpose; or
35. The Act is amended by adding the following after section 225:
Direction of Ships
Power to direct ship
225.1 (1) An enforcement officer may direct a ship that is in an area of the sea referred to in any of paragraphs 122(2)(a) to (d) and (g) to proceed, by the route and in the manner that the enforcement officer may specify, to any place specified by the enforcement officer if the enforcement officer has reasonable grounds to believe that
(a) the ship is committing, has committed or is about to commit in an area of the sea referred to in any of paragraphs 122(2)(a) to (d) an offence arising out of a contravention of Division 3 of Part 7 or of any regulation made under that Division; or
(b) a person on board the ship is committing, has committed or is about to commit such an offence in such an area and the ship was, is being or is about to be used in connection with the commission of the offence.
Power to direct ship
(2) If a ship is in an area of the sea referred to in paragraph 122(2)(f), an enforcement officer may, with the consent of the foreign state that has jurisdiction in that area, direct the ship to proceed, by the route and in the manner that the enforcement officer may specify, to any place specified by the enforcement officer if the enforcement officer has reasonable grounds to believe that
(a) the ship is committing, has committed or is about to commit in an area of the sea referred to in any of paragraphs 122(2)(a) to (d) an offence arising out of a contravention of Division 3 of Part 7 or of any regulation made under that Division; or
(b) a person on board the ship is committing, has committed or is about to commit such an offence in such an area and the ship was, is being or is about to be used in connection with the commission of the offence.
36. The Act is amended by adding the following after section 271:
Acts Committed Outside Canada
Offences under this Act deemed committed in Canada
271.1 (1) An act or omission that is an offence arising out of a contravention of Division 3 of Part 7 or of any regulation made under that Division is deemed to have been committed in Canada if it is committed
(a) in an area of the sea referred to in paragraph 122(2)(c); or
(b) in an area of the sea referred to in paragraph 122(2)(g) in the course of hot pursuit that commenced while a ship was in an area of the sea referred to in any paragraphs 122(2)(a) to (e).
Offences under the Criminal Code deemed committed in Canada
(2) An act or omission that is committed in the course of enforcement of this Act and that would be an offence under the Criminal Code if it were committed in Canada, is deemed to have been committed in Canada if it is committed
(a) in an area of the sea referred to in paragraph 122(2)(c); or
(b) in an area of the sea referred to in paragraph 122(2)(g) in the course of hot pursuit that commenced while a ship was in an area of the sea referred to in any paragraphs 122(2)(a) to (e).
37. Section 272 of the Act is amended by adding the following after subsection (2):
Application in respect of ships
(3) For the purposes of this section, a ship is deemed to be a person in respect of every provision of this Act or the regulations that expressly applies to ships.
38. The Act is amended by adding the following after section 275:
When consent of Attorney General of Canada required
275.1 A proceeding that is commenced in respect of an offence arising out of a contravention of Division 3 of Part 7 or of any regulation made under that Division, or in respect of an offence under the Criminal Code that is committed in the course of enforcement of this Act, shall not be continued if the offence was committed in an area of the sea referred to in paragraph 122(2)(c) and the accused is either a ship that is not a Canadian ship or a foreign national who was on board such a ship when the offence was committed, unless the Attorney General of Canada consents to the continuation no later than eight days after the proceeding is commenced.
39. The Act is amended by adding the following after section 278:
Jurisdiction of justices and judges
278.1 A justice or judge in any territorial division in Canada has jurisdiction to authorize, in the same manner as if the offence had been committed in the territorial division, an arrest, an entry, a search or a seizure in relation to
(a) an offence arising out of a contravention of Division 3 of Part 7 or of any regulation made under that Division that is committed in an area of the sea referred to in any of paragraphs 122(2)(c), (f) and (g); or
(b) an offence under the Criminal Code that is committed in the course of enforcement of this Act in an area of the sea referred to in paragraph 122(2)(c) or in an area of the sea referred to in paragraph 122(2)(g) in the course of hot pursuit that commenced while a ship was in an area of the sea referred to in any paragraphs 122(2)(a) to (e).
40. (1) The portion of subsection 279(1) of the Act before paragraph (a) is replaced by the following:
Jurisdiction of court
279. (1) If an offence arising out of a contravention of Division 3 of Part 7 or of any regulation made under that Division is committed in an area of the sea referred to in any of paragraphs 122(2)(a) to (e), or if an offence under the Criminal Code is committed in the course of enforcement of this Act in an area of the sea referred to in paragraph 122(2)(c), the offence
(2) The portion of subsection 279(3) of the Act before paragraph (a) is replaced by the following:
Jurisdiction of court
(3) If an offence arising out of a contravention of Division 3 of Part 7 or of any regulation made under that Division is committed in an area of the sea referred to in paragraph 122(2)(f) or (g), or if an offence under the Criminal Code is committed in the course of enforcement of this Act in an area of the sea referred to in paragraph 122(2)(g) in the course of hot pursuit that commenced while a ship was in an area of the sea referred to in any paragraphs 122(2)(a) to (e), the offence
41. Section 280 of the Act is replaced by the following:
Liability of directors, officers and agents
280. (1) If a corporation commits an offence under this Act or the regulations, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence, and is liable to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.
Liability of master and chief engineer of ship
(2) If a ship commits an offence under this Act or the regulations and the master or the chief engineer of the ship directed, authorized, assented to, acquiesced in or participated in the commission of the offence, the master or chief engineer, as the case may be, is a party to and guilty of the offence, and is liable to the punishment provided for the offence, whether or not the ship has been prosecuted or convicted.
Duties of directors and officers
280.1 (1) Every director and officer of a corporation shall take all reasonable care to ensure that the corporation complies with
(a) this Act and the regulations, other than Division 3 of Part 7 and regulations made under that Division; and
(b) orders and directions of, and prohibitions and requirements imposed by, the Minister, enforcement officers and review officers, other than those issued or imposed in connection with obligations or prohibitions under that Division or regulations made under that Division.
Duties of directors and officers — Division 3 of Part 7
(2) Every director and officer of a corporation who is in a position to direct or influence the corporation’s policies or activities in respect of its obligation to comply with Division 3 of Part 7, regulations made under that Division, and orders and directions of, and prohibitions and requirements imposed by, the Minister, enforcement officers and review officers in connection with obligations or prohibitions under that Division or those regulations, shall take all reasonable care to ensure that the corporation so complies.
Liability of directors and officers — Division 3 of Part 7
(3) If a corporation commits an offence arising out of a contravention of Division 3 of Part 7, a regulation made under that Division or an order or direction of, or prohibition or requirement imposed by, the Minister, an enforcement officer or a review officer in connection with an obligation or prohibition under that Division or a regulation made under that Division, every director and officer of the corporation who is in a position to direct or influence the corporation’s policies or activities in respect of conduct that is the subject-matter of the offence is a party to and guilty of the offence, and is liable to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.
Duties of masters and chief engineers
280.2 (1) The master and the chief engineer of a ship shall take all reasonable care to ensure that the ship complies with
(a) Division 3 of Part 7 and regulations made under that Division; and
(b) orders and directions of, and prohibitions and requirements imposed by, the Minister, enforcement officers and review officers in connection with obligations or prohibitions under that Division or those regulations.
Liability of master and chief engineer
(2) If a ship commits an offence arising out of a contravention of Division 3 of Part 7, a regulation made under that Division or an order or direction of, or prohibition or requirement imposed by, the Minister, an enforcement officer or a review officer in connection with an obligation or prohibition under that Division or a regulation made under that Division, the master and the chief engineer of the ship are a party to and guilty of the offence, and are liable to the punishment provided for the offence, whether or not the ship has been prosecuted or convicted.
Duties of owner
280.3 (1) Every owner of a ship shall take all reasonable care to ensure that the ship complies, and all persons on board the ship comply, with
(a) Division 3 of Part 7 and regulations made under that Division; and
(b) orders and directions of, and prohibitions and requirements imposed by, the Minister, enforcement officers and review officers in connection with obligations or prohibitions under that Division or those regulations.
Liability of directors and officers of owners
(2) If a ship commits an offence arising out of a contravention of Division 3 of Part 7, a regulation made under that Division or an order or direction of, or prohibition or requirement imposed by, the Minister, an enforcement officer or a review officer in connection with an obligation or prohibition under that Division or a regulation made under that Division, every director or officer of a corporation that is an owner of the ship who is in a position to direct or influence the corporation’s policies or activities in respect of conduct that is the subject-matter of the offence is a party to and guilty of the offence, and is liable to the punishment provided for the offence, whether or not the ship has been prosecuted or convicted.
For greater certainty
280.4 For greater certainty, section 283 applies to a person who is a party to an offence under subsection 280.1(3), 280.2(2) or 280.3(2).
Directions
280.5 For the purpose of prosecuting a ship for contravening a direction made under section 225.1 or an order made under section 235, a direction or an order, as the case may be, that is given to the master or a crew member of the ship is deemed to have been given to the ship.
42. The Act is amended by adding the following after section 281:
Proceedings against ships
281.1 (1) Subject to subsection (2), the provisions of this Act or the Criminal Code relating to indictable or summary conviction offences that apply to persons apply also to ships, with any modifications that the circumstances require.
Service on ship and appearance at trial
(2) If a ship is charged with having committed an offence under this Act or the regulations, the summons may be served by leaving it with the owner, master or any officer of the ship or by posting the summons on some conspicuous part of the ship, and the ship may appear by counsel or representative. Despite the Criminal Code, if the ship does not so appear, a court may, on proof of service of the summons, proceed to hold the trial.
COORDINATING AMENDMENTS
1994, c. 22
43. On the later of the coming into force of section 1 of the Canada Shipping Act, 2001, being chapter 26 of the Statutes of Canada, 2001, and subsection 1(2) of this Act, the definition “Canadian vessel” in subsection 2(1) of the Migratory Birds Convention Act, 1994 is replaced by the following:
“Canadian vessel”« bâtiment canadien »
“Canadian vessel” means a vessel
(a) that is registered, listed or licensed under the Canada Shipping Act, 2001,
(b) that is not registered, listed or licensed under the Canada Shipping Act, 2001 or under the laws of another state but is owned by one or more persons each of whom is
(i) a Canadian citizen,
(ii) in the case of a vessel that is not required to be registered, listed or licensed under that Act, a person who is resident and domiciled in Canada, or
(iii) a corporation incorporated under the laws of Canada or a province, that has its principal place of business in Canada, or
(c) that is not registered, listed or licensed under the Canada Shipping Act, 2001 but is owned or operated by Her Majesty in right of Canada;
1994, c. 22
44. On the later of the coming into force of section 1.1 of the Pilotage Act, as enacted by section 316 of the Canada Shipping Act, 2001, being chapter 26 of the Statutes of Canada, 2001, and subsection 1(2) of this Act, the definition “master” in subsection 2(1) of the Migratory Birds Convention Act, 1994 is replaced by the following:
“master”« capitaine »
“master” includes every person who has command or charge of a vessel but excludes a licensed pilot within the meaning of section 1.1 of the Pilotage Act;
1994, c. 22
45. On the later of the coming into force of section 1 of the Canada Shipping Act, 2001, being chapter 26 of the Statutes of Canada, 2001, and section 4 of this Act, subsection 5.1(3) of the Migratory Birds Convention Act, 1994 is replaced by the following:
Saving
(3) Subsections (1) and (2) do not apply if
(a) the deposit is authorized under the Canada Shipping Act, 2001; or
(b) the substance is of a type and quantity, and the deposit is made under conditions, authorized under an Act of Parliament other than the Canada Shipping Act, 2001, or authorized by the Minister for scientific purposes.
1994, c. 22
46. On the later of the coming into force of section 1 of the Canada Shipping Act, 2001, being chapter 26 of the Statutes of Canada, 2001, and section 4 of this Act, paragraphs 5.2(a) and (b) of the Migratory Birds Convention Act, 1994 are replaced by the following:
(a) wilfully destroy or cause to be destroyed a document, a record or data that is required to be kept under this Act or the Canada Shipping Act, 2001, or wilfully alter or cause to be altered such a document, a record or data with intent to mislead;
(b) make or cause to be made a false entry, or omit to make or cause to be omitted to be made a required entry, in a document, a record or data that is required to be kept under this Act or the Canada Shipping Act, 2001;
1994, c. 22
47. On the later of the coming into force of section 8 of the Public Service Modernization Act, being chapter 22 of the Statutes of Canada, 2003, and section 4 of this Act, paragraph 5.3(1)(a) of the English version of the Migratory Birds Convention Act, 1994 is replaced by the following:
(a) the employee, acting in good faith and on the basis of reasonable belief, disclosed to a federal minister, or any employee of the federal public administration, that the employer or another person had contravened or had intended to contravene a provision of this Act or the regulations;
1994, c. 22
48. On the later of the coming into force of section 1 of the Canada Shipping Act, 2001, being chapter 26 of the Statutes of Canada, 2001, and section 15 of this Act, section 18.1 of the Migratory Birds Convention Act, 1994 is replaced by the following:
Documents, records and data
18.1 In a proceeding under this Act, a document, a record or data that is required to be kept under this Act or the Canada Shipping Act, 2001 is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in it.
1999, c. 33
49. On the later of the coming into force of section 1.1 of the Pilotage Act, as enacted by section 316 of the Canada Shipping Act, 2001, being chapter 26 of the Statutes of Canada, 2001, and section 18 of this Act, the definition “master” in subsection 122(1) of the Canadian Environmental Protection Act, 1999 is replaced by the following:
“master”« capitaine »
“master” means the person in command or charge of a ship, but does not include a licensed pilot, within the meaning of section 1.1 of the Pilotage Act.
1999, c. 33
50. On the later of the coming into force of section 1 of the Canada Shipping Act, 2001, being chapter 26 of the Statutes of Canada, 2001, and subsection 22(4) of this Act, subsection 125(6) of the Canadian Environmental Protection Act, 1999 is replaced by the following:
Exception
(6) This section does not apply in respect of any disposal that is authorized under the Canada Shipping Act, 2001.
1999, c. 33
51. On the later of the coming into force of section 1 of the Canada Shipping Act, 2001, being chapter 26 of the Statutes of Canada, 2001, and section 29 of this Act, paragraphs 216.1(1)(a) and (b) of the Canadian Environmental Protection Act, 1999 are replaced by the following:
(a) that is not registered, listed or licensed under the Canada Shipping Act, 2001 or under the laws of another state but is owned by one or more persons each of whom is
(i) a Canadian citizen,
(ii) in the case of a vessel that is not required to be registered, listed or licensed under that Act, a person who is resident and domiciled in Canada, or
(iii) a corporation incorporated under the laws of Canada or a province, that has its principal place of business in Canada; or
(b) that is not registered, listed or licensed under the Canada Shipping Act, 2001 but is owned or operated by Her Majesty in right of Canada.
COMING INTO FORCE
Order in council
52. The provisions of this Act, other than sections 43 to 51, and the provisions of any Act as enacted by this Act, come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of CommonsAvailable from:Publishing and Depository ServicesPublic Works and Government Services Canada