Bill C-18

2nd Session, 41st Parliament,

62-63 Elizabeth II, 2013-2014

house of commons of canada

BILL C-18

An Act to amend certain Acts relating to agriculture and agri-food

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

SHORT TITLE

1. This Act may be cited as the Agricultural Growth Act.

PLANT BREEDERS’ RIGHTS ACT

2. (1) The definition “protective direction” in subsection 2(1) of the Plant Breeders’ Rights Act is repealed.

(2) The definitions “agreement country”, “breeder”, “category”, “country of the Union”, “infringement”, “new variety”, “plant breeder’s rights” and “plant variety” in subsection 2(1) of the Act are replaced by the following:

“agreement country” means any of the following entities that is designated by the regulations as an agreement country with a view to the fulfilment of an agreement concerning the rights of plant breeders made between Canada and that entity:

(a) a country,

(b) a colony, protectorate or territory subject to the authority of another country or under its suzerainty,

(c) a territory over which another country exercises a mandate or trusteeship;

“breeder”, in respect of a plant variety, means

(a) any person who originates or who discovers and develops the plant variety, or

(b) any person in respect of whom an officer, servant or employee, while acting within the scope of his or her duties as the officer, servant or employee of that person, originates or discovers and develops the plant variety;

“category” means, in relation to a plant, a species, a grouping of species or any class within a species;

“country of the Union” means any country or other entity that is a party to the International Convention for the Protection of New Varieties of Plants of December 2, 1961, as amended from time to time, or any WTO Member as defined in subsection 2(1) of the World Trade Organization Agreement Implementation Act;

“infringement”, in relation to plant breeder’s rights, means the doing, without authority under this Act, of anything that the holder of those rights has the right to do under any of sections 5 to 5.2;

“new variety” means a plant variety that is described in subsection 4(3);

“plant breeder’s rights”, in relation to a plant variety, means the rights that are granted under section 27;

“plant variety” means any plant grouping within a single botanical taxon of the lowest known rank that, whether or not the conditions for the grant of plant breeder’s rights are fully met, is capable of being

(a) defined by the expression of the characteristics resulting from a given genotype or combination of genotypes,

(b) distinguished from any other plant grouping by the expression of at least one of those characteristics, and

(c) considered as a unit with regard to its suitability for being reproduced unchanged;

(3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

“document” means anything on which information that is capable of being understood by a person, or read by a computer or other device, is recorded or marked;

“filing date” means, in respect of an application, the date specified in the notice given under subsection 10(2);

“person” has the same meaning as in section 2 of the Criminal Code;

(4) Subsection 2(2) of the Act is repealed.

3. Section 4 of the Act and the heading before it are replaced by the following:

CONDITIONS FOR PROTECTION

4. (1) Plant breeder’s rights may not be granted except in respect of a plant variety that belongs to a prescribed category and meets all of the conditions set out in subsection (2).

(2) Plant breeder’s rights may be granted in respect of a plant variety if it

(a) is a new variety;

(b) is, by reason of one or more identifiable characteristics, clearly distinguishable from all varieties whose existence is a matter of common knowledge at the filing date of the application for the grant of plant breeder’s rights respecting that plant variety;

(c) is stable in its essential characteristics in that after repeated propagation or, if the applicant has defined a particular cycle of propagation, at the end of each cycle it remains true to its description; and

(d) is, having regard to the particular features of its sexual reproduction or vegetative propagation, a sufficiently homogeneous variety.

(3) A plant variety is a new variety if the propagating or harvested material of that variety has not been sold by, or with the concurrence of, the breeder of that variety or the breeder’s legal representative

(a) in Canada, before

(i) the prescribed period preceding the filing date of the application for the grant of plant breeder’s rights, in the case of a variety belonging to a recently prescribed category, and

(ii) the period of one year before the filing date of the application for the grant of plant breeder’s rights, in the case of any other variety; and

(b) outside Canada, before

(i) the period of six years before the filing date of the application for the grant of plant breeder’s rights, in the case of a tree or vine, and

(ii) the period of four years before the filing date of the application for the grant of plant breeder’s rights, in any other case.

(4) For the purposes of paragraph (2)(d), “sufficiently homogeneous variety” means a variety for which, in the event of its sexual reproduction or vegetative propagation in substantial quantity, any variations in characteristics of the plants so reproduced or propagated are predictable, capable of being described and commercially acceptable.

(5) The Governor in Council may make regulations prescribing classes of sales that are not to be considered sales for the purposes of subsection (3).

4. The heading before section 5 of the French version of the Act is replaced by the following:

5. Sections 5 and 6 of the Act are replaced by the following:

5. (1) Subject to the other provisions of this Act and the regulations, the holder of the plant breeder’s rights respecting a plant variety has the exclusive right

(a) to produce and reproduce propagating material of the variety;

(b) to condition propagating material of the variety for the purposes of propagating the variety;

(c) to sell propagating material of the variety;

(d) to export or import propagating material of the variety;

(e) to make repeated use of propagating material of the variety to produce commercially another plant variety if the repetition is necessary for that purpose;

(f) in the case of a variety to which ornamental plants belong, if those plants are normally marketed for purposes other than propagation, to use any such plants or parts of those plants as propagating material for the production of ornamental plants or cut flowers;

(g) to stock propagating material of the variety for the purpose of doing any act described in any of paragraphs (a) to (f); and

(h) to authorize, conditionally or unconditionally, the doing of any act described in any of paragraphs (a) to (g).

(2) Without prejudice to any rights or privileges of the Crown, an authorization conferred under paragraph 1(h) may be subject to a condition to pay royalty to the holder of the plant breeder’s rights whether or not the holder is Her Majesty in right of Canada or a province.

5.1 Subject to the other provisions of this Act and the regulations, the holder of the plant breeder’s rights respecting a plant variety has the exclusive right to do any act described in any of paragraphs 5(1)(a) to (h) in respect of any harvested material, including whole plants or parts of plants, that is obtained through the unauthorized use of propagating material of the plant variety, unless the holder had reasonable opportunity to exercise his or her rights under section 5 in relation to that propagating material and failed to do so before claiming rights under this section.

5.2 (1) Subject to the other provisions of this Act and the regulations, the holder of the plant breeder’s rights respecting a plant variety has the exclusive right to do any act described in any of paragraphs 5(1)(a) to (h) in respect of

(a) any other plant variety that is essentially derived from the plant variety if the plant variety is not itself essentially derived from another plant variety;

(b) any other plant variety that is not clearly distinguishable from the plant variety; and

(c) any other plant variety whose production requires the repeated use of the plant variety.

(2) For the purpose of paragraph (1)(a), a plant variety is essentially derived from another plant variety (in this subsection referred to as the ‘‘initial variety’’) if

(a) it is predominantly derived from the initial variety or from a plant variety that is itself predominantly derived from the initial variety and it retains the essential characteristics that result from the genotype or combination of genotypes of the initial variety;

(b) it is clearly distinguishable from the initial variety; and

(c) it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety, except for the differences that result from its derivation from the initial variety.

5.3 (1) The rights referred to in sections 5 to 5.2 do not apply to any act done

(a) privately and for non-commercial purposes;

(b) for experimental purposes; or

(c) for the purpose of breeding other plant varieties.

(2) The rights referred to in paragraphs 5(1)(a) and (b) and — for the purposes of exercising those rights and the right to store — the right referred to in paragraph 5(1)(g) do not apply to harvested material of the plant variety that is grown by a farmer on the farmer’s holdings and used by the farmer on those holdings for the sole purpose of propagation of the plant variety.

5.4 (1) The rights referred to in sections 5 to 5.2 do not apply to any act done in relation to material of a plant variety after the material has been sold in Canada by the holder or with the holder’s consent, unless that act involves

(a) the further propagation of the plant variety; or

(b) the export of material of the plant variety to a country that does not protect varieties of the plant genus or species to which the exported plant variety belongs if the exported material is not intended for consumption.

(2) For the purpose of subsection (1), “material” means propagating material and harvested material, including whole plants and parts of plants.

6. (1) The term of the grant of plant breeder’s rights, subject to earlier termination under this Act, shall be a period of 25 years in the case of a tree, a vine or any category specified by the regulations and 20 years in any other case. The period begins on the day on which the certificate of plant breeder’s rights is issued.

(2) A holder of plant breeder’s rights shall, during the term of the grant of those rights, pay to the Commissioner, within the prescribed time, the prescribed annual fee.

6. Sections 7 and 8 of the Act are replaced by the following:

7. (1) A breeder or the breeder’s legal representative may make an application to the Commissioner for the grant of plant breeder’s rights respecting a plant variety if, in the case of an individual, the breeder or legal representative is a citizen of, or is resident in, Canada, a country of the Union or an agreement country or, in the case of a person that is not an individual, the breeder or legal representative has an establishment in Canada, a country of the Union or an agreement country.

(2) If a plant variety is bred by two or more breeders otherwise than independently of each other, the persons entitled to make an application for the grant of plant breeder’s rights respecting that variety may make an application jointly and, if any of those persons refuses to do so or information regarding their whereabouts cannot be obtained through diligent inquiry, the remainder of those persons may make an application for that grant.

7. Sections 9 to 11 of the Act are replaced by the following:

9. (1) An application for the grant of plant breeder’s rights must

(a) include the prescribed information and be made in the prescribed manner;

(b) be accompanied by the prescribed fee;

(c) be supported by the prescribed documents and any other prescribed material; and

(d) in the case where the applicant wishes to request that those rights be exempted from compulsory licensing under subsection 32(1), include the request and his or her reasons for it.

(2) An applicant that, in the case of an individual, is not resident in Canada and, in the case of a person that is not an individual, does not have an establishment in Canada shall submit the application through an agent resident in Canada.

10. (1) Subject to subsection 11(1), the filing date of an application for the grant of plant breeder’s rights is the date on which the Commissioner has received, in respect of the application, all of the information, fees, documents and other materials that are required by subsection 9(1).

(2) The Commissioner shall send to the applicant a notice specifying the filing date.

10.1 In the case of two or more applications respecting a plant variety whose breeders bred it independently of each other, priority shall be given to the application with the earliest filing date. If the filing dates of the applications are the same, priority shall be given to the application pertaining to the breeder that was first in a position to apply for the plant breeder’s rights respecting the variety or that would have been first in the position to do so if the provisions under this Act for so doing had always been in force.

11. (1) If an application made under section 7 is preceded by another application made in a country of the Union or an agreement country for protection in respect of the same plant variety and the same breeder, the filing date of the application made under section 7 is deemed to be the date on which the preceding application was made in that country of the Union or agreement country and, consequently, the applicant is entitled to priority in Canada despite any intervening use, publication or application respecting the variety if

(a) the application is made in the prescribed form within 12 months after the date on which the preceding application was made in that country of the Union or agreement country; and

(b) the application is accompanied by a claim respecting the priority and by the prescribed fee.

(2) A claim respecting priority based on a preceding application made in a country of the Union or an agreement country shall not be allowed unless, within three months after the date that would be the filing date of the application if there were no claim respecting priority, the claim is confirmed by filing with the Commissioner a copy, certified as correct by the appropriate authority in that country of the Union or agreement country and accompanied by an English or French translation of the certified copy, if made in any other language, of each document that constituted the preceding application.

(3) An applicant that is given priority shall provide, within a period of three years after the date on which the preceding application was made in the country of the Union or agreement country, evidence that the applicant has begun the tests and trials with the plant variety referred to in subsection 23(2).

(4) If an application made under section 7 is preceded by two or more applications made in different countries of the Union or agreement countries for protection in respect of the same plant variety and the same breeder, only the first of those preceding applications is to be taken into account for the purposes of subsection (1).

8. Subsection 12(1) of the Act is replaced by the following:

12. (1) No claim referred to in paragraph 11(1)(b) shall be based on any preceding application unless it was made by a person who, at the time of the application, was entitled to make an application under subsection 7(1).

9. The heading before section 14 of the Act is replaced by the following:

DENOMINATIONS

10. (1) Subsection 14(1) of the Act is replaced by the following:

14. (1) A plant variety in respect of which an application for the grant of plant breeder’s rights is made shall be designated by means of a denomination proposed by the applicant and approved by the Commissioner.

(2) Subsection 14(4) of the Act is replaced by the following:

(4) A denomination that the Commissioner approves for any plant variety in respect of which protection has been granted by, or an application for protection has been submitted to, the appropriate authority in a country of the Union or an agreement country must, subject to subsections (2), (3) and (5), be the same as the denomination with reference to which that protection has been granted or that application submitted.

11. Section 15 of the Act is replaced by the following:

15. After the grant of plant breeder’s rights respecting any plant variety, and even after the expiry of the term of the grant of those rights, every person who is designating the variety for the purposes of the sale of propagating material of the variety shall use the denomination approved by the Commissioner.

12. The Act is amended by adding the following after section 16:

16.1 If, after the grant of plant breeder’s rights respecting any plant variety, the Commissioner has reasonable grounds to believe that the use of the denomination is unsuitable or that the prior rights of another person are prejudiced by its use, the Commissioner may direct the holder to change the denomination, subject to the Commissioner’s approval of the new denomination.

13. Subsection 17(1) of the Act is replaced by the following:

17. (1) The Commissioner may reject an application for the grant of plant breeder’s rights if the application is not consistent with any provision of this Act or the regulations, including if the plant variety in respect of which the application is made is not a new variety or if the applicant is not entitled to apply under section 7.

14. Sections 18 to 21 of the Act are replaced by the following:

18. An applicant may, within the period prescribed for so doing, or with leave given by the Commissioner at the applicant’s request after the expiry of that period, add to or alter the denomination proposed by that applicant under section 14 or the description of the plant variety for the purposes of the application.

PROVISIONAL PROTECTION

19. (1) Subject to subsection (2), an applicant for the grant of plant breeder’s rights in respect of a plant variety has, as of the filing date of the application, the same rights in respect of the variety that he or she would have under sections 5 to 5.2 if plant breeder’s rights were to be granted.

(2) If the applicant is granted plant breeder’s rights, the applicant is, in respect of the period beginning on the filing date and ending on the date on which the plant breeder’s rights are granted, entitled to equitable remuneration from any person who, having been notified in writing by the applicant that the application for those rights has been filed under this Act, carried out acts that require the authorization of the applicant.

20. (1) The rights granted under section 19 cease if the application is withdrawn by the applicant, is rejected or refused or is deemed to have been abandoned under section 26.

(2) Despite subsection (1), if an application that is deemed to have been abandoned is subsequently reinstated, the rights granted under section 19 are deemed never to have ceased.

21. For the purposes of sections 19 and 20, with respect to an applicant that has made a claim respecting priority under section 11, the filing date is the date that would be the filing date of the application if there were no claim respecting priority.

15. (1) Subsection 22(1) of the Act is replaced by the following:

22. (1) A person who considers that an application in respect of which particulars have been published under section 70 ought to be refused on any ground that constitutes a basis for rejection under section 17 or that a request in the application for an exemption from compulsory licensing ought to be refused, may, on payment of the prescribed fee, file with the Commissioner, within the prescribed period beginning on the date of publication, an objection specifying that person’s reasons. The prescribed fees are not required in the case of an objection made for the purpose of this subsection under the authority of the Minister of Industry after notice under subsection 70(2).

(2) Subsection 22(2) of the French version of the Act is replaced by the following:

(3) Subsection 22(4) of the Act is replaced by the following:

(4) If the objection is not rejected in accordance with subsection (3), the Commissioner shall give the person making the objection and the person in respect of whose application the objection is filed a reasonable opportunity to make representations with respect to the objection and shall take those representations into account before making the decision to refuse the application or to grant plant breeder’s rights with or without an exemption from compulsory licensing.

16. (1) Subsection 23(2) of the Act is replaced by the following:

(2) For the purpose of determining if the plant variety to which the application relates meets the requirements set out in section 4, the Commissioner shall require the performance of any tests and trials with the plant variety, under any conditions, as the Commissioner considers necessary.

(2) The portion of subsection 23(3) of the Act before paragraph (a) is replaced by the following:

(3) The person on whose part material is submitted for consideration under subsection (1) shall, without prejudice to the requirements of subsection 9(1) and at the time and place that the Commissioner directs,

(3) Paragraph 23(3)(a) of the French version of the Act is replaced by the following:

(4) Subsection 23(3) of the Act is amended by striking out “and” at the end of paragraph (a) and by replacing paragraph (b) with the following:

(b) provide any of the following that the Commissioner considers necessary for the purposes of carrying out or evaluating the results of tests and trials with the plant variety in question:

(i) propagating materials,

(ii) information, whether by way of photographs, drawings, documentation or otherwise, respecting the plant variety, and

(iii) specimens of the plant variety or of parts of it; and

(c) provide any prescribed information, documents or materials.

17. Subsection 24(1) of the Act is replaced by the following:

24. (1) If the Commissioner obtains from an appropriate authority in any country of the Union or agreement country the official results of tests and trials referred to in subsection 23(2) and the Commissioner considers them to be acceptable, the Commissioner may rely on those results. The person on whose part material is submitted for consideration under subsection 23(1) shall pay the costs incurred in obtaining those results.

18. Section 26 of the French version of the Act is replaced by the following:

19. (1) Subsections 27(1) to (3) of the Act are replaced by the following:

27. (1) If the Commissioner approves a denomination proposed by an applicant under section 14 and, after consideration of the application in accordance with subsection 23(1) and evaluation of the results of any tests and trials carried out with the plant variety to which the application relates, the Commissioner is satisfied that the plant variety meets the requirements set out in section 4 and that the application otherwise conforms to this Act, the Commissioner shall grant plant breeder’s rights in accordance with subsection (3).

(2) If the Commissioner is not satisfied as described in subsection (1), the Commissioner shall refuse the application.

(2.1) In the case where the applicant for plant breeder’s rights has requested that those rights be exempted from compulsory licensing under subsection 32(1), the Commissioner may, at the time of the grant of those rights, approve that request if the Commissioner is satisfied with the reasons given by the applicant for that request.

(3) The Commissioner shall, on payment of the prescribed fee,

(a) enter in the register the particulars required by section 63 in relation to the plant variety in respect of which the plant breeder’s rights are to be granted; and

(b) make the grant by issuing a certificate of plant breeder’s rights in respect of the plant variety to the applicant.

(2) Subsection 27(5) of the Act is replaced by the following:

(5) If a certificate of plant breeder’s rights issued under paragraph (3)(b) is destroyed or lost, a certified copy may be issued in lieu of that certificate on payment of the prescribed fee.

20. Sections 28 and 29 of the Act are replaced by the following:

28. If the Commissioner grants plant breed- er’s rights to joint applicants as described in subsection 7(2), the grant shall be in the names of all those joint applicants.

21. Paragraph 30(1)(a) of the Act is replaced by the following:

(a) ensure that he or she is in a position, throughout the period of his or her registration as the holder, to furnish the Commissioner, on request, with propagating material of that variety that is capable of reproducing that variety so that its identifiable characteristics correspond with those taken into account for the purpose of granting those rights; and

22. (1) Subsection 32(1) of the Act is replaced by the following:

32. (1) Subject to subsections (2) to (6) and the regulations and if the Commissioner considers that it is appropriate to do so, the Commissioner may, on application by any person, authorize the doing of any act described in any of paragraphs 5(1)(a) to (g) by granting the person a compulsory licence.

(2) Subsections 32(4) and (5) of the French version of the Act are replaced by the following:

23. Section 34 of the Act is replaced by the following:

34. The Commissioner may, before the end of the term fixed by subsection 6(1) for a grant of plant breeder’s rights, annul the grant if the Commissioner is satisfied that, at the time of the grant of those rights, the requirements set out in section 4 or the conditions set out in subsection 7(1) were not fulfilled or the holder was otherwise not entitled under this Act to the grant.

24. (1) Paragraph 35(1)(c) of the Act is replaced by the following:

(c) their holder has failed to comply with a direction under section 16.1 to change the denomination of the plant variety to which the rights relate;

(2) Paragraph 35(1)(d) of the French version of the Act is replaced by the following:

(3) Paragraph 35(1)(e) of the Act is replaced by the following:

(e) the plant variety which is the subject of those rights no longer meets the conditions described in paragraph 4(2)(c) or (d).

(4) Subsection 35(2) of the Act is repealed.

25. Section 36 of the French version of the Act is replaced by the following:

26. Subsection 38(2) of the French version of the Act is replaced by the following:

27. Subsection 39(1) of the Act is replaced by the following:

39. (1) If a holder of plant breeder’s rights, in the case of an individual, is not resident in Canada or, in the case of a person that is not an individual, does not have an establishment in Canada, the holder shall have an agent in respect of those rights who is resident in Canada.

28. (1) Subsection 41(1) of the French version of the Act is replaced by the following:

(2) Paragraph 41(2)(a) of the French version of the Act is replaced by the following:

29. (1) Subsection 43(2) of the French version of the Act is replaced by the following:

(2) The portion of subsection 43(3) of the French version of the Act before paragraph (a) is replaced by the following:

(3) Paragraphs 43(3)(a) to (c) of the Act are replaced by the following:

(a) a condition specified in paragraph 4(2)(a) or (b) was not fulfilled; or

(b) the holder has not complied with paragraph 30(1)(a).

(4) Subsection 43(4) of the French version of the Act is replaced by the following:

30. The portion of subsection 45(1) of the Act before paragraph (a) is replaced by the following:

45. (1) A person who has been granted, in respect of plant breeder’s rights, an authorization described in paragraph 5(1)(h) or a compulsory licence under subsection 32(1) may, subject to any agreement between that person and the holder of the rights,

31. Paragraphs 46(a) to (c) of the Act are replaced by the following:

(a) that a condition specified in paragraph 4(2)(a) or (b) was not fulfilled; or

(b) that the holder has not complied with paragraph 30(1)(a).

32. Section 47 of the French version of the Act is replaced by the following:

33. Subsection 49(1) of the French version of the Act is replaced by the following:

34. (1) Paragraph 50(1)(b) of the Act is replaced by the following:

(b) determining whether or not annulment of the grant of plant breeder’s rights is required by section 13;

(2) Paragraph 50(1)(d) of the French version of the Act is replaced by the following:

35. Subsection 51(1) of the Act is replaced by the following:

51. (1) If any proceedings have been instituted in the Federal Court under this Act, the Commissioner shall, at the request of any party to the proceedings and on payment of the prescribed fee, transmit to the Court all records and documents on file in the Plant Breeders’ Rights Office that relate to the matters in question in the proceedings.

36. Section 52 of the French version of the Act is replaced by the following:

37. (1) The portion of subsection 53(1) of the Act before paragraph (a) is replaced by the following:

53. (1) Every person commits an offence who knowingly discloses any information with regard to any variety in respect of which an application for plant breeder’s rights is made or with regard to the business affairs of the applicant that was acquired by that person in performing any functions under this Act except if the information is disclosed

(2) The portion of subsection 53(2) of the French version of the Act before paragraph (a) is replaced by the following:

(3) Paragraph 53(2)(a) of the English version of the Act is replaced by the following:

(a) knowingly contravenes section 15;

(4) The portion of paragraph 53(2)(b) of the English version of the Act before subparagraph (i) is replaced by the following:

(b) for the purpose of selling any propagating material, knowingly designates the material by reference to

(5) Paragraph 53(2)(c) of the Act is replaced by the following:

(c) knowingly, for the purpose of selling any propagating material, represents falsely that the material is propagating material of, or is derived from, a plant variety in respect of which plant breeder’s rights are held or have been applied for.

(6) The portion of subsection 53(3) of the French version of the Act before paragraph (a) is replaced by the following:

(7) Subsections 53(7) and (8) of the Act are replaced by the following:

(7) A prosecution for a summary conviction offence under this Act may be instituted at any time within two years after the day on which the subject matter of the prosecution becomes known to the Commissioner.

(8) A document purporting to have been issued by the Commissioner, certifying the day on which the subject matter of any prosecution became known to him or her, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is evidence of the matters asserted in it.

38. Section 54 of the French version of the Act is replaced by the following:

39. Subsection 56(4) of the Act is replaced by the following:

(4) The Commissioner shall receive all applications, fees, documents and materials submitted for plant breeders’ rights, shall do all things necessary for the granting of plant breeders’ rights and for the exercise of all other powers conferred, and the discharge of all other duties imposed, on the Commissioner under this Act and shall have the charge and custody of the register and any other documents or materials belonging to the Plant Breeders’ Rights Office.

40. Subsection 60(1) of the English version of the Act is replaced by the following:

60. (1) The Commissioner shall cause a seal to be made for the purposes of this Act and each certificate of plant breeder’s rights issued under paragraph 27(3)(b) to be sealed with that seal. The Commissioner may also cause any other instrument or copy of any document issuing from the Plant Breeders’ Rights Office to be sealed with that seal.

41. (1) The portion of section 63 of the Act before paragraph (c) is replaced by the following:

63. The Commissioner shall keep a register of plant breeders’ rights and, subject to the payment of any fee required under this Act to be paid in the case of any entry in the register, the Commissioner shall enter in it

(a) in relation to each plant variety that is the subject of those rights, the prescribed category to which it belongs;

(b) the denomination of the variety, and any change to that denomination;

(2) Paragraph 63(h) of the Act is replaced by the following:

(h) the prescribed particulars of each application for the grant of plant breeder’s rights and of any abandonment or withdrawal of the application; and

42. Subsection 64(2) of the French version of the Act is replaced by the following:

43. Section 65 of the French version of the Act is replaced by the following:

44. Paragraph 66(1)(a) of the English version of the Act is replaced by the following:

(a) the correction of any clerical error or error in translation appearing in a certificate of plant breeder’s rights issued under paragraph 27(3)(b), in an application for plant breeder’s rights, in any document filed for the purposes of such an application or in the register or index;

45. (1) Subsection 67(2) of the Act is replaced by the following:

(2) The Commissioner shall make the following accessible to the public on the Internet and, if the Commissioner considers it appropriate, by any other means:

(a) the register;

(b) the index; and

(c) any documents referred to in subsection (1) that are prescribed and any other documents that should, in the Commissioner’s opinion, be made accessible to the public.

(2) Subsection 67(4) of the Act is repealed.

46. Paragraph 68(1)(b) of the French version of the Act is replaced by the following:

47. (1) Paragraphs 70(1)(c) and (d) of the Act are repealed.

(2) Paragraph 70(3)(b) of the Act is replaced by the following:

(b) a notice of every annulment under section 34 or revocation under section 35.

48. Subsection 72(2) of the French version of the Act is replaced by the following:

49. Subsection 73(2) of the French version of the Act is replaced by the following:

50. (1) Paragraph 75(1)(a) of the Act is replaced by the following:

(a) fixing the fees that a person may be required to pay in respect of any services provided by the Commissioner or by any person authorized by the Commissioner and providing for the time and manner in which the fees are to be paid and the circumstances in which the fees may be refunded in whole or in part;

(2) Paragraphs 75(1)(c) and (d) of the Act are replaced by the following:

(c) defining the meanings of the words and expressions “commercially acceptable”, “description”, “designation”, “identifiable characteristics”, “reasonably priced”, “recently prescribed category”, “representations”, “tree”, “vine” and “widely distributed” for the purposes of this Act;

(c.1) prescribing, for the purposes of paragraph 5(1)(b), any acts that are to be considered as the conditioning of propagating material;

(c.2) specifying categories for the purposes of subsection 6(1);

(d) respecting the publication in the Trade Marks Journal of information relating to proposals, approvals and changes of denominations;

(3) Paragraph 75(1)(f) of the Act is replaced by the following:

(f) designating any entity as an agreement country for the purposes of any of the provisions of this Act or the regulations, with a view to the fulfilment of an agreement concerning the rights of plant breeders made between Canada and that entity, and, despite anything in this Act, qualifying or restricting any rights or other benefits under this Act;

(4) Paragraphs 75(1)(k) and (l) of the Act are replaced by the following:

(k) respecting the granting of plant breeder’s rights with an exemption, under subsection 27(2.1), from compulsory licensing, including the circumstances in which the exemption may be given or revoked by the Commissioner, the terms and conditions on which the exemption may be given and the factors that are to be taken into account before the exemption is revoked;

(l) prescribing

(i) the information to be entered in, and the forms of, the register, the index, applications for plant breeders’ rights and any other record, instrument or document to be kept, made or used for the purposes of this Act, and

(ii) the means, factors or criteria for determining whether the existence of a plant variety is a matter of common knowledge for the purposes of paragraph 4(2)(b) or section 62;

(l.1) respecting any classes of farmers or plant varieties to which subsection 5.3(2) is not to apply;

(l.2) respecting the use of harvested material under subsection 5.3(2), including any circumstances in which that use is restricted or prohibited and any conditions to which that use is subject;

(5) Subsection 75(2) of the French version of the Act is replaced by the following:

51. The heading before section 79 and sections 79 to 81 of the Act are replaced by the following:

TRANSITIONAL PROVISIONS

79. This Act, as it reads on or after the day on which this section comes into force, does not apply with respect to plant breeders’ rights granted before that day, but this Act, as it read immediately before that day, continues to apply with respect to those rights.

80. An application for the grant of plant breeder’s rights that was made before the day on which this section comes into force and that was not disposed of before that day is to be dealt with and disposed of in accordance with this Act. However, if plant breeder’s rights are granted to the applicant, sections 19 to 21, as they read immediately before the day on which this section comes into force, continue to apply with respect to those rights.

81. A proceeding commenced under this Act before the day on which this section comes into force that, on that day, is pending before a court and in respect of which no decision has been made shall be dealt with and disposed of in accordance with this Act as it read immediately before that day.

FEEDS ACT

52. The long title of the Feeds Act is replaced by the following:

An Act respecting feeds

53. (1) The definitions “livestock” and “sell” in section 2 of the Act are replaced by the following:

“livestock” means any animals designated by regulation as livestock for the purposes of this Act;

“sell” includes agree to sell, offer for sale, expose for sale or have in possession for sale or distribute to one or more persons;

(2) Section 2 of the Act is amended by adding the following in alphabetical order:

“conveyance” means a vessel, aircraft, train, motor vehicle, trailer or other means of transportation, including a cargo container;

“document” means anything on which information that is capable of being understood by a person, or read by a computer or other device, is recorded or marked;

“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 components referred to in paragraphs (a) to (c);

“establishment” means any place, including a conveyance, where a feed is manufactured, stored, packaged or labelled;

“inspection mark” means a prescribed mark, stamp, seal, product legend, word or design or any combination of those things;

“item to which this Act applies” means

(a) a feed,

(b) anything used in an activity regulated under this Act, and

(c) a document that is related to a feed or to any activity regulated under this Act;

54. (1) Paragraph 3(1)(a) of the Act is replaced by the following:

(a) has, in accordance with the regulations, been approved by the Minister or registered;

(2) Paragraph 3(1)(c) of the English version of the Act is replaced by the following:

(c) is packaged and labelled in accordance with the regulations.

(3) Subsection 3(3) of the Act is replaced by the following:

(3) No person shall manufacture, sell, import or export in contravention of the regulations any feed that presents a risk of harm to human or animal health or the environment.

55. Section 4 of the Act is replaced by the following:

3.1 No person shall conduct a prescribed activity in respect of a prescribed feed that has been imported for sale — or that is to be exported or to be sent or conveyed from one province to another — unless the person is authorized to do so by a registration made under subsection 5.2(1), by a licence issued under that subsection or by both such a registration and licence, as provided for in the regulations.

3.2 No person shall conduct a prescribed activity in respect of a prescribed feed that has been imported for sale — or that is to be exported or to be sent or conveyed from one province to another — unless the activity is conducted in an establishment registered under subsection 5.3(1) in accordance with the regulations.

3.3 (1) Unless authorized by the regulations, no person shall

(a) apply or use an inspection mark; or

(b) advertise or sell anything if the thing has an inspection mark on it or an inspection mark is used in connection with the thing.

(2) No person shall

(a) apply or use a thing that so resembles an inspection mark that it is likely to be mistaken for it; or

(b) advertise or sell anything that has on it a thing referred to in paragraph (a) or that has a thing referred to in that paragraph used in connection with it.

(3) A person found in possession of anything referred to in paragraph (1)(b) or (2)(b) is considered, in the absence of evidence to the contrary, to be in possession of it for the purpose of advertising or selling.

3.4 No person shall sell a feed that is the subject of a recall order referred to in subsection 19(1) of the Canadian Food Inspection Agency Act.

4. This Act does not apply in respect of a feed that is manufactured by a livestock producer if it is not sold and has not had incorporated into it any drug or other substance that presents a risk of harm to human or animal health or the environment.

56. (1) Paragraph 5(a) of the Act is replaced by the following:

(a) respecting applications for registration or for approval of feeds and the information to be furnished with the applications;

(2) Paragraphs 5(c) and (d) of the Act are replaced by the following:

(b.1) respecting the approval of feeds;

(c) respecting the duration and cancellation of the registration or approval of feeds;

(c.1) respecting the manufacturing, sale, importation or exportation of any feed that presents a risk of harm to human or animal health or the environment;

(c.2) respecting the sending or conveying from one province to another or the importation or exportation of any feed;

(c.3) respecting the manufacturing or sale of any feed that is to be exported or to be sent or conveyed from one province to another;

(c.4) respecting the sale of any feed that has been imported;

(d) exempting, with or without conditions, any item to which this Act applies, or a person or activity in respect of a feed, from the application of this Act or the regulations or a provision of this Act or the regulations;

(3) Section 5 of the Act is amended by adding the following after paragraph (e):

(e.1) prescribing standards for the manufacturing or the safety of feeds;

(e.2) prescribing inspection marks in respect of any feeds and regulating their application or use;

(4) Section 5 of the Act is amended by adding the following after paragraph (g):

(g.1) requiring persons to take or keep samples of any feed, or its package or label, and to provide the Minister or an inspector with, or with access to, those samples, and respecting the manner in which those samples are to be taken or kept and the manner in which they are to be provided or access to them is to be provided;

(5) Section 5 of the Act is amended by adding the following after paragraph (h):

(h.1) respecting

(i) the registration of persons or the issuing of licences to persons under section 5.2 or the registration of establishments under section 5.3,

(ii) the suspension, cancellation and renewal of those licences and registrations, and

(iii) the amendment of those licences and registrations or of any of the conditions to which they are subject by reason of subsection 5.2(3) or 5.3(4);

(h.2) respecting quality management programs, quality control programs, safety programs, preventive control plans or any other similar programs or plans to be implemented by persons who conduct any activity regulated under this Act;

(6) Paragraph 5(i) of the English version of the Act is replaced by the following:

(i) designating specific animals, including birds, as livestock for the purposes of this Act;

(7) Section 5 of the Act is amended by adding the following after paragraph (k):

(k.1) respecting the evaluation of a feed, including regulations respecting

(i) the provision of samples of the feed,

(ii) the provision of information in respect of the feed, including information that

(A) permits the feed to be distinguished from other feeds, and

(B) is required for evaluating the potential impact of the feed on, and the risk of harm posed by the feed to, human and animal health and the environment, and

(iii) the evaluation of the potential impact of the feed on, and the risk of harm posed by the feed to, human and animal health and the environment;

(k.2) requiring persons to prepare, keep or maintain documents and to provide the Minister or an inspector with, or with access to, those documents, and respecting

(i) the information in those documents,

(ii) the manner in which they are to be prepared, kept or maintained,

(iii) the place where they are to be kept or maintained, and

(iv) the manner in which they are to be provided or access to them is to be provided;

(k.3) respecting the issuance of certificates or other documents for the purpose of section 5.5;

(8) Section 5 of the Act is renumbered as subsection 5(1) and is amended by adding the following:

(2) Regulations made under paragraph (1)(c.1) or (c.2) may, among other things, establish preclearance or in-transit requirements for any imported feed or anything imported with it.

(3) Regulations made under paragraph (1)(k.2) may, among other things, require persons who conduct any activity regulated under this Act and who become aware that a feed presents a risk of harm to human or animal health or the environment or does not meet the requirements of the regulations to provide written notice to that effect to the Minister or an inspector.

57. The Act is amended by adding the following after section 5:

INCORPORATION BY REFERENCE

5.1 (1) A regulation made under subsection 5(1) may incorporate by reference any document, regardless of its source, either as it exists on a particular date or as it is amended from time to time.

(2) The Minister must ensure that any document that is incorporated by reference in a regulation made under subsection 5(1), including any amendments to the document, is accessible.

(3) A person is not liable to be found guilty of an offence or subjected to an administrative sanction for any contravention in respect of which a document that is incorporated by reference in a regulation made under subsection 5(1) is relevant unless, at the time of the alleged contravention, the document was accessible as required by subsection (2) or it was otherwise accessible to the person.

(4) For greater certainty, a document that is incorporated by reference in a regulation made under subsection 5(1) is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.

REGISTRATIONS AND LICENCES

5.2 (1) The Minister may, on application, register a person, or issue a licence to a person, authorizing them to conduct a prescribed activity in respect of a prescribed feed that has been imported for sale — or that is to be exported or to be sent or conveyed from one province to another — or both register a person and issue them a licence.

(2) The registration and the licence are subject to the prescribed conditions.

(3) The Minister may make a registration or licence subject to any additional conditions that he or she considers appropriate.

(4) The holder of the registration or licence must comply with all the conditions to which the registration or licence is subject.

(5) The registration or licence is not transferable.

5.3 (1) The Minister may, on application, register an establishment as one where a prescribed activity may be conducted in respect of a prescribed feed that has been imported for sale or that is to be exported or to be sent or conveyed from one province to another.

(2) The applicant in respect of an establishment is the holder of the registration.

(3) The registration is subject to the prescribed conditions.

(4) The Minister may make a registration subject to any additional conditions that he or she considers appropriate.

(5) The holder of the registration must comply with all the conditions to which the registration is subject.

(6) The registration is not transferable.

5.4 Subject to the regulations, the Minister may amend, suspend, cancel or renew a registration made under subsection 5.2(1) or 5.3(1) or a licence issued under subsection 5.2(1).

GENERAL

5.5 The Minister may issue any certificate or other document setting out any information that he or she considers necessary to facilitate the export of any feed.

5.6 A sample taken by an inspector, or provided to the Minister or an inspector, under this Act may be disposed of in any manner that the Minister considers appropriate.

5.7 Every inspection mark is a trade-mark and the exclusive property in the trade-mark and, subject to this Act, the right to its use are vested in Her Majesty in right of Canada.

5.8 In considering an application made under the regulations in relation to a feed, the Minister may consider information that is available from a review or evaluation of a feed conducted by the government of a foreign state or of a subdivision of a foreign state or by an international organization, or association, of states.

58. (1) The portion of subsection 7(1) of the Act before paragraph (a) is replaced by the following:

7. (1) Subject to subsection (1.1), an inspector may, for a purpose related to verifying compliance or preventing non-compliance with this Act,

(2) Subsection 7(1) of the Act is amended by striking out “and” at the end of paragraph (c), by adding “and’’ at the end of paragraph (d) and by adding the following after paragraph (d):

(e) remove anything from that place for the purpose of examination, conducting tests or taking samples.

(3) Section 7 of the Act is amended by adding the following after subsection (2):

(3) An inspector may, for a purpose related to verifying compliance or preventing non-compliance with this Act, order a person to provide, on the date, at the time and place and in the manner specified by the inspector, any document, information or sample specified by the inspector.

59. Subsection 9(2) of the Act is replaced by the following:

(2) If an inspector is satisfied that the provisions of this Act and the regulations that apply with respect to an article seized under this Act have been complied with, the article must be released.

60. The Act is amended by adding the following after section 9:

9.1 (1) An inspector who has reasonable grounds to believe that an imported feed does not meet the requirements of the regulations or was imported in contravention of a provision of this Act or the regulations may, by notice, whether the feed is seized or not, order its owner or importer or the person having possession, care or control of it to remove it from Canada or, if removal is not possible, to destroy it.

(2) The notice must either be delivered personally to the owner or importer of the feed or to the person having possession, care or control of it or be sent by registered mail to the owner’s, importer’s or person’s address in Canada.

(3) If the feed is not removed from Canada or destroyed within the period specified in the notice — or, if no period was specified, within 90 days after the day on which the notice was delivered or sent — it is, despite subsection 9(2), forfeited to Her Majesty in right of Canada and may be disposed of as the Minister may direct.

(4) An inspector may, for a period that he or she specifies, suspend the application of subsection (3) if he or she is satisfied that

(a) harm to human or animal health or the environment is unlikely to result;

(b) the feed will not be sold within that period;

(c) the measures that should have been taken for the feed not to have been imported in contravention of a provision of this Act or the regulations will be taken within that period; and

(d) if the feed does not meet the requirements of the regulations, it will be brought into compliance with the regulations within that period.

(5) An inspector may cancel the notice if he or she is satisfied that

(a) harm to human or animal health or the environment is unlikely to result;

(b) the feed has not been sold within the period referred to in subsection (6);

(c) the measures referred to in paragraph (4)(c) were taken within that period; and

(d) if the feed did not meet the requirements of the regulations when it was imported, it was brought into compliance with the regulations within that period.

(6) The period for the purposes of subsection (5) is

(a) if the application of subsection (3) was suspended under subsection (4), the period of the suspension; and

(b) if the application of subsection (3) was not suspended, the period specified in the notice or, if no period was specified, the period that ends 90 days after the day on which the notice was delivered or sent.

(7) The Statutory Instruments Act does not apply in respect of the notice.

ANALYSIS

9.2 An inspector may submit to an analyst, for analysis or examination,

(a) any sample taken by an inspector, or provided to the Minister or an inspector, under this Act; or

(b) anything removed under paragraph 7(1)(e), any article seized under subsection 9(1) or any sample of that thing or article.

LIMITATION ON LIABILITY

9.3 If a person must, under this Act, do anything or permit an inspector to do anything, Her Majesty in right of Canada is not liable

(a) for any costs, loss or damage resulting from the compliance; or

(b) to pay any fee, including any rent or charge, for what is done or permitted to be done.

9.4 No person who exercises powers or performs duties or functions under this Act is liable in respect of anything done or omitted to be done in good faith in the exercise of those powers or the performance of those duties or functions.

61. (1) The portion of subsection 10(1) of the Act before paragraph (a) is replaced by the following:

10. (1) Every person who contravenes any provision of this Act or the regulations or fails to do anything that the person is ordered to do by an inspector under this Act is guilty of

(2) Subsections 10(2) to (5) of the Act are replaced by the following:

(2) If a person other than an individual commits an offence under subsection (1), any of the person’s directors, officers or agents or mandataries who directs, authorizes, assents to or acquiesces or participates in the commission of the offence is a party to the offence and is liable on conviction to the punishment provided for by this Act, even if the person is not prosecuted for the offence.

(3) In a prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or an agent or mandatary of the accused, even if the employee or the agent or mandatary is not identified or prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused and that the accused exercised all due diligence to prevent its commission.

(4) Summary conviction proceedings for an offence under this Act may be instituted no later than two years after the day on which the subject matter of the proceedings arises.

FERTILIZERS ACT

62. The long title of the Fertilizers Act is replaced by the following:

An Act respecting fertilizers and supplements

63. Section 2 of the Act is amended by adding the following in alphabetical order:

“conveyance” means a vessel, aircraft, train, motor vehicle, trailer or other means of transportation, including a cargo container;

“document” means anything on which information that is capable of being understood by a person, or read by a computer or other device, is recorded or marked;

“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 components referred to in paragraphs (a) to (c);

“establishment” means any place, including a conveyance, where a fertilizer or supplement is manufactured, stored, packaged or labelled;

“item to which this Act applies” means

(a) a fertilizer or supplement,

(b) anything used in an activity regulated under this Act, and

(c) a document that is related to a fertilizer or supplement or to any activity regulated under this Act;

64. (1) Paragraph 3(a) of the Act is replaced by the following:

(a) has, in accordance with the regulations, been approved by the Minister or registered;

(2) Paragraph 3(c) of the English version of the Act is replaced by the following:

(c) is packaged and labelled in accordance with the regulations.

65. The Act is amended by adding the following after section 3:

3.1 No person shall manufacture, sell, import or export in contravention of the regulations any fertilizer or supplement that presents a risk of harm to human, animal or plant health or the environment.

3.2 No person shall conduct a prescribed activity in respect of a prescribed fertilizer or supplement that has been imported for sale — or that is to be exported or to be sent or conveyed from one province to another — unless the person is authorized to do so by a registration made under subsection 5.2(1), by a licence issued under that subsection or by both such a registration and licence, as provided for in the regulations.

3.3 No person shall conduct a prescribed activity in respect of a prescribed fertilizer or supplement that has been imported for sale — or that is to be exported or to be sent or conveyed from one province to another — unless the activity is conducted in an establishment registered under subsection 5.3(1) in accordance with the regulations.

3.4 No person shall sell a fertilizer or supplement that is the subject of a recall order referred to in subsection 19(1) of the Canadian Food Inspection Agency Act.

66. (1) Paragraph 5(1)(a) of the Act is replaced by the following:

(a) respecting applications for registration or for approval of fertilizers or supplements and the information to be furnished with the applications;

(2) Paragraph 5(1)(c) and (d) of the Act are replaced by the following:

(b.1) respecting the approval of fertilizers and supplements;

(c) respecting the duration and cancellation of the registration or approval of fertilizers and supplements;

(c.1) respecting the manufacturing, sale, importation or exportation of any fertilizer or supplement that presents a risk of harm to human, animal or plant health or the environment;

(c.2) respecting the sending or conveying from one province to another or the importation or exportation of any fertilizer or supplement;

(c.3) respecting the manufacturing or sale of any fertilizer or supplement that is to be exported or to be sent or conveyed from one province to another;

(c.4) respecting the sale of any fertilizer or supplement that has been imported;

(d) exempting, with or without conditions, any item to which this Act applies, or a person or activity in respect of a fertilizer or supplement, from the application of this Act or the regulations or a provision of this Act or the regulations;

(3) Subsection 5(1) of the Act is amended by adding the following after paragraph (f):

(f.1) respecting the evaluation of a fertilizer or supplement, including regulations respecting

(i) the provision of samples of the fertilizer or supplement,

(ii) the provision of information in respect of the fertilizer or supplement, including information that

(A) permits the fertilizer or supplement to be distinguished from other fertilizers or supplements, and

(B) is required for evaluating the potential impact of the fertilizer or supplement on, and the risk of harm posed by the fertilizer or supplement to, human, animal or plant health or the environment, and

(iii) the evaluation of the potential impact of the fertilizer or supplement on, and the risk of harm posed by the fertilizer or supplement to, human, animal or plant health or the environment;

(4) Subsection 5(1) of the Act is amended by adding the following after paragraph (g):

(g.1) requiring persons to take or keep samples of any fertilizer or supplement, or its package or label, and to provide the Minister or an inspector with, or with access to, those samples, and respecting the manner in which those samples are to be taken or kept and the manner in which they are to be provided or access to them is to be provided;

(5) Subsection 5(1) of the Act is amended by adding the following after paragraph (h):

(h.1) respecting

(i) the registration of persons or the issuing of licences to persons under section 5.2 or the registration of establishments under section 5.3,

(ii) the suspension, cancellation and renewal of those licences and registrations, and

(iii) the amendment of those licences and registrations or of any of the conditions to which they are subject by reason of subsection 5.2(3) or 5.3(4);

(h.2) respecting quality management programs, quality control programs, safety programs, preventive control plans or any other similar programs or plans to be implemented by persons who conduct any activity regulated under this Act;

(6) Subsection 5(1) of the Act is amended by adding the following after paragraph (j):

(j.1) requiring persons to prepare, keep or maintain documents and to provide the Minister or an inspector with, or with access to, those documents, and respecting

(i) the information in those documents,

(ii) the manner in which they are to be prepared, kept or maintained,

(iii) the place where they are to be kept or maintained, and

(iv) the manner in which they are to be provided or access to them is to be provided;

(j.2) respecting the issuance of certificates or other documents for the purpose of section 5.5;

(7) Section 5 of the Act is amended by adding the following after subsection (1):

(1.1) Regulations made under paragraph (1)(c.1) or (c.2) may, among other things, establish preclearance or in-transit requirements for any imported fertilizer or supplement or anything imported with it.

(1.2) Regulations made under paragraph (1)(j.1) may, among other things, require persons who conduct any activity regulated under this Act and who become aware that a fertilizer or supplement presents a risk of harm to human, animal or plant health or the environment or does not meet the requirements of the regulations to provide written notice to that effect to the Minister or an inspector.

67. The Act is amended by adding the following after section 5:

INCORPORATION BY REFERENCE

5.1 (1) A regulation made under subsection 5(1) may incorporate by reference any document, regardless of its source, either as it exists on a particular date or as it is amended from time to time.

(2) The Minister must ensure that any document that is incorporated by reference in a regulation made under subsection 5(1), including any amendments to the document, is accessible.

(3) A person is not liable to be found guilty of an offence or subjected to an administrative sanction for any contravention in respect of which a document that is incorporated by reference in a regulation made under subsection 5(1) is relevant unless, at the time of the alleged contravention, the document was accessible as required by subsection (2) or it was otherwise accessible to the person.

(4) For greater certainty, a document that is incorporated by reference in a regulation made under subsection 5(1) is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.