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| Designation
of inspectors
and analysts
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51. (1) The Minister may designate any
individual or classes of individuals as
inspectors or analysts for the purposes of this
Part.
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| Certificate to
be produced
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(2) The Minister shall furnish every
inspector with a certificate of designation, and
on entering any place referred to in this Part,
an inspector shall, on request, produce the
certificate to the person in charge of that place.
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| Powers of
inspector
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(3) An inspector may, at any reasonable
time, enter any place, including any premises,
vessel or vehicle, other than a dwelling-house,
where the inspector believes on reasonable
grounds that any work, activity or undertaking
resulting or likely to result in the harmful
alteration, disruption or destruction of fish
habitat or the deposit of a deleterious
substance in waters frequented by fish or in
any place under any conditions referred to in
subsection 50(1) is being, has been or is likely
to be carried on, and the inspector may, for any
purpose related to the administration of this
Part, conduct inspections, which may include
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(a) examining any substance or product
found therein or any other thing relevant to
the administration of this Part or the
regulations made under this Part that is
found in the place;
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(b) taking samples of any thing that is
relevant to the administration of this Part or
the regulations made under this Part;
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(c) conducting any tests or analyses or
taking any measurements;
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(d) opening and examining any thing found
that the inspector believes on reasonable
grounds contains any substance or other
thing in respect of which this Part or the
regulations made under this Part apply; and
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(e) examining any books, records,
electronic data or other documents that the
inspector believes on reasonable grounds
contain any information that is relevant to
the administration of this Part or the
regulations made under this Part and make
copies thereof or take extracts therefrom.
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| Operation of
computer
systems and
copying
equipment
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(4) In conducting an inspection of a place
under subsection (3), an inspector may
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(a) 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;
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(b) reproduce any record or cause it to be
reproduced from the data in the form of a
print-out or other intelligible output and
remove the print-out or other output for
examination or copying; and
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(c) use or cause to be used any copying
equipment at the place to make copies of
any books, records, electronic data or other
documents.
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| Disposition of
samples
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(5) An inspector who takes a sample under
paragraph (3)(b) may dispose of it in any
manner that the inspector considers
appropriate.
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| Duty to assist
inspectors
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52. The owner or person who is in
possession or control of a place that is
inspected under section 51, and every person
found in the place, shall
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(a) give the inspector all reasonable
assistance to enable the inspector to carry
out the inspection and exercise any power
conferred by that section; and
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(b) provide the inspector with any
information relevant to the administration
of this Part or the regulations made under
this Part that the inspector may reasonably
require.
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| Warrant
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53. (1) An inspector with a warrant issued
under subsection (2) may, at any reasonable
time, enter any place, including any premises,
vessel or vehicle, other than a dwelling-house,
where the inspector believes on reasonable
grounds that an offence referred to in section
61 is being or has been committed and search
that place for evidence of the offence.
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| Authority to
issue warrant
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(2) Where on ex parte application a justice
is satisfied by information on oath that there
are reasonable grounds to believe that there is
in any place referred to in subsection (1)
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(a) any thing on or in respect of which an
offence referred to in section 61 is being or
has been committed, or
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(b) any thing that there are reasonable
grounds to believe will afford evidence with
respect to the commission of an offence
referred to in section 61,
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the justice may issue a warrant authorizing the
inspector named in it to enter and search the
place for any such thing, subject to any
conditions that may be specified in the
warrant.
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| Use of force
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(3) In executing a warrant issued under
subsection (2), the inspector named in it shall
not use force unless the inspector is
accompanied by a peace officer and the use of
force has been specifically authorized in the
warrant.
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| Where
warrant not
necessary
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54. An inspector may exercise the powers
described in section 53 without a warrant if the
conditions for obtaining a warrant exist but, by
reason of exigent circumstances, it would not
be practical to obtain a warrant.
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| Powers during
search
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55. In conducting a search of a place under
section 53 or 54, an inspector may exercise the
powers described in section 51.
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| Entry
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56. An inspector or any person
accompanying the inspector may, while
conducting an inspection or search under this
Part, enter on and pass through or over private
property without being liable for trespass or, in
Quebec, without the owner of the property
having the right to object to that use of the
property.
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| Certificate of
analyst as
proof
|
57. (1) Subject to subsections (2) and (3), a
certificate purporting to be signed by an
analyst stating that the analyst has analyzed or
tested a substance or product and stating the
result of the analysis or test is admissible in
evidence in any prosecution for an offence
referred to in section 61 or 62 without proof of
the signature or official character of the person
appearing to have signed the certificate and, in
the absence of any evidence to the contrary, is
proof of the statements contained in the
certificate.
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| Attendance of
analyst
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(2) The party against whom there is
produced any certificate pursuant to
subsection (1) may, with leave of the court,
require the attendance of the analyst for the
purposes of cross-examination.
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| Notice
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(3) No certificate shall be admitted in
evidence pursuant to subsection (1) unless the
party intending to produce it has given to the
party against whom it is intended to be
produced reasonable notice of that intention
together with a copy of the certificate.
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| Duty to notify
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58. (1) Where a deposit of a deleterious
substance in waters frequented by fish, that is
not authorized under this Part, or a harmful
alteration, disruption or destruction of fish
habitat, that is not authorized under this Part,
occurs, or a serious and imminent danger of
such an occurrence exists, any person who at
any material time
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(a) owns the deleterious substance or has
the charge, management or control of it,
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(b) owns or has the charge, management or
control of the work, activity or undertaking
that resulted in the occurrence or the danger
of the occurrence, or
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(c) causes or contributes to the occurrence
or the danger of the occurrence
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shall immediately notify an inspector, a
fishery officer or any other person prescribed
by the regulations of the occurrence or the
danger of the occurrence.
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| Report
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(2) As soon as possible in the
circumstances, the person described in any of
paragraphs (1)(a) to (c) shall provide, to the
inspector, fishery officer or other person
referred to in subsection (1), a full report of the
details of the occurrence or the danger of the
occurrence, in accordance with any
regulations made under this Part.
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| Duty to take
corrective
measures
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(3) Any person described in any of
paragraphs (1)(a) to (c) shall, as soon as
possible in the circumstances, take all
reasonable measures consistent with safety
and with the conservation of fish and fish
habitat to prevent any occurrence referred to
in subsection (1) or to counteract, mitigate or
remedy any adverse effects that result or may
reasonably be expected to result from such an
occurrence.
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| Corrective
measures by
inspector or
fishery officer
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(4) Where an inspector or fishery officer,
whether or not notification has been given
under subsection (1) or a report has been made
under subsection (2), is satisfied on reasonable
grounds that immediate action is necessary in
order to take any reasonable measures referred
to in subsection (3), the inspector or fishery
officer may, subject to subsection (5) and any
regulations made under this Part, take any
such measures or direct that they be taken by
any person described in any of paragraphs
(1)(a) to (c) at that person's cost.
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| Inconsistent
orders
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(5) Any requirement or direction of an
inspector or fishery officer under this section
that is inconsistent with any requirement or
order of a pollution prevention officer under
the Canada Shipping Act is void to the extent
of the inconsistency.
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| Authority to
enter any
place
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(6) For the purposes of subsections (1) to
(4), any inspector or other person may enter
and have access to any place, including any
premises, vehicle or vessel, and may take all
reasonable action in order to comply with
those subsections, but nothing in this
subsection relieves any person from liability
at law for any illegal or negligent acts or
omissions they may commit or for loss or
damage caused to others by such entry, access
or action.
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| Exception
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(7) Subsections (1) to (4) do not apply in
respect of any deposit of a deleterious
substance that, within the meaning of Part XV
of the Canada Shipping Act, constitutes a
discharge of a pollutant caused by or
otherwise attributable to a ship.
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| Regulations
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59. The Governor in Council may make
regulations for the conservation and
protection of fish habitat, the obstruction of
any waters frequented by fish and the
prevention of pollution of any waters
frequented by fish, and, without restricting the
generality of the foregoing, may make
regulations
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(a) prescribing, for the purposes of the
definition ``deleterious substance'' in
section 42,
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(i) substances and classes of substances,
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(ii) quantities or concentrations of
substances and classes of substances in
water, and
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(iii) treatments, processes and changes in
water;
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(b) prescribing the deleterious substances or
classes thereof authorized to be deposited
notwithstanding subsection 49(1);
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(c) prescribing the waters or places or
classes thereof where any deleterious
substances or classes thereof referred to in
paragraph (b) are authorized to be
deposited;
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(d) prescribing the works, activities or
undertakings or classes thereof in the course
or conduct of which any deleterious
substances or classes thereof referred to in
paragraph (b) are authorized to be
deposited;
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(e) prescribing the quantities or
concentrations of any deleterious
substances or classes thereof referred to in
paragraph (b) that are authorized to be
deposited;
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(f) prescribing the conditions or
circumstances under which and the
requirements subject to which any
deleterious substances or classes thereof
referred to in paragraph (b) or any quantities
or concentrations of those deleterious
substances or classes thereof are authorized
to be deposited in any waters or places or
classes thereof referred to in paragraph (c)
or in the course or conduct of any works,
activities or undertakings or classes thereof
referred to in paragraph (d);
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(g) prescribing the persons who may
authorize the deposit of any deleterious
substances or classes thereof in the absence
of any other authority, and the conditions or
circumstances under which and
requirements subject to which those
persons may grant the authorization;
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(h) prescribing the manner and
circumstances in which any information
shall be provided to the Minister without
request under subsection 50(1);
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(i) prescribing the manner and
circumstances in which the Minister or a
person designated by the Minister may
make orders under subsection 50(2) and the
terms of the orders;
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(j) prescribing any other person to whom a
notification is to be given under subsection
58(1);
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(k) prescribing the manner in which the
report referred to in subsection 58(2) is to be
made, the information to be contained
therein and the circumstances in which no
report is required to be made;
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(l) prescribing the manner in which
inspectors and fishery officers may take any
measures or give any directions under
subsection 58(4) and the conditions to
which such measures or directions are
subject;
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(m) prescribing the manner and
circumstances in which any measures taken
or directions given under subsection 58(4)
may be reviewed, rescinded or varied;
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(n) respecting the alteration, disruption or
destruction of fish habitat, for the purposes
of subsection 48(2);
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(o) prescribing the fees that may be charged
by Her Majesty in right of Canada for any
approvals given under this Part; and
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(p) prescribing any other matters necessary
for or incidental to carrying out the
purposes and provisions of this Part.
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| Civil liability
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60. (1) Where a deposit of a deleterious
substance in waters frequented by fish, that is
not authorized under this Part, or a harmful
alteration, disruption or destruction of fish
habitat, that is not authorized under this Part,
occurs, or a serious and imminent danger of
such an occurrence exists, any persons who at
any material time
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(a) own the deleterious substance or have
the charge, management or control of it,
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(b) own or have the charge, management or
control of the work, activity or undertaking
that resulted in the occurrence or the danger
of the occurrence, or
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(c) are persons other than persons described
in paragraph (a) or (b), who cause or
contribute to the occurrence or the danger
of the occurrence,
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are, subject to subsection (4), in the case of
persons described in paragraph (a) or (b), and
to the extent determined according to their
respective degrees of fault or negligence, in
the case of persons described in paragraph (c),
jointly and severally liable for all costs
incurred by Her Majesty in right of Canada or
a province, to the extent that those costs can be
established to have been reasonably incurred
in the circumstances, of and incidental to the
taking of any measures to prevent any such
deposit or harmful alteration, disruption or
destruction, or to counteract, mitigate or
remedy any adverse effects that result or may
reasonably be expected to result from such a
deposit or harmful alteration, disruption or
destruction.
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| Recovery of
costs
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(2) All of the costs referred to in subsection
(1) are recoverable by Her Majesty in right of
Canada or a province with costs in
proceedings brought or taken therefor in the
name of Her Majesty in any such right in any
court of competent jurisdiction.
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| Joint and
several
liability
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(3) Any persons described in paragraphs
(1)(a) to (c) who, without being authorized
under this Part, deposit a deleterious
substance in waters frequented by fish, or
harmfully alter, disrupt or destroy fish habitat,
are, subject to subsection (4), in the case of
persons described in paragraph (1)(a) or (b),
and to the extent determined according to their
respective degrees of fault or negligence, in
the case of persons described in paragraph
(1)(c), jointly and severally liable for all loss
of income incurred by any licensed
commercial fisher, to the extent that the loss
can be established to have been incurred as a
result of the deposit or the harmful alteration,
disruption or destruction, or of a prohibition to
fishing resulting therefrom, and all such loss
is recoverable with costs in proceedings
brought or taken therefor in any court of
competent jurisdiction.
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| Absolute
liability
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(4) The liability of any person described in
paragraph (1)(a) or (b) is absolute and does not
depend on proof of fault or negligence, but no
such person is liable for any costs pursuant to
subsection (1) or loss of income pursuant to
subsection (3) if the person establishes that the
occurrence giving rise to the liability was
wholly caused by
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(a) an act of war, hostilities, civil war,
insurrection or a natural phenomenon of an
exceptional, inevitable and irresistible
character; or
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(b) an act or omission with intent to cause
damage by any other person, other than a
person for whose wrongful act or omission
the person is by law responsible.
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| Recourse
against
another
person
|
(5) Nothing in this section limits or restricts
any right of recourse that any person who is
liable pursuant to this section may have
against any other person.
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| Limitation
period
|
(6) No proceedings may be commenced
under subsections (1) to (3) at any time later
than two years after the occurrence to which
the proceedings relate could reasonably be
expected to have become known to Her
Majesty in right of Canada or a province or to
any licensed commercial fisher, as the case
may be.
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| Discharge of
pollutant
|
(7) Subsections (1) to (3) do not apply in
respect of any deposit of a deleterious
substance that, within the meaning of Part XV
of the Canada Shipping Act, constitutes a
discharge of a pollutant caused by or
otherwise attributable to a ship.
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| Civil remedies
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(8) No civil remedy for any act or omission
is suspended or affected by reason only that
the act or omission is authorized under this
Part, is an offence under this Part or gives rise
to civil liability under this Part.
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| Action by
Attorney
General of
Canada
|
(9) Notwithstanding that a prosecution has
been instituted in respect of an offence under
section 61, 62 or 63, the Attorney General of
Canada may commence and maintain
proceedings to enjoin anything punishable as
an offence under those sections.
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