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| Designation
of inspectors
and analysts
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51. (1) The Minister may designate any
individual or class 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 inspec
tor with a certificate of designation, and on
entering any place referred to in this Part an
inspector shall, on request, produce the certifi
cate to the person in charge of that place.
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| Powers of
inspector
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(3) For any purpose related to the adminis
tration of this Part, an inspector may, at any
reasonable time, enter and inspect any place,
including any premises, vessel or vehicle,
other than a dwelling-house, in which the
inspector believes on reasonable grounds
there has been, is being or is likely to be
carried on any prescribed project or other
work, activity or undertaking in respect of
which this Part or the regulations apply, and
the inspector may
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(a) examine 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) take 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) conduct any tests or analyses or take any
measurements;
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(d) open and examine 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) examine any books, records, electronic
data or other documents that the inspector
believes on reasonable grounds contain any
information that is relevant to the adminis
tration 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 appropri
ate.
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| Duty to assist
inspectors
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52. The owner or person who is in posses
sion 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 assis
tance to enable the inspector to carry out the
inspection and exercise any power con
ferred by that section; and
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(b) provide the inspector with any informa
tion 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 sections
61 to 63 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 sections 61 to 63 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 sections 61 to 63,
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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 condi
tions 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 accompa
nied 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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(4) An inspector may exercise the powers
described in subsections (1) to (3) without a
warrant if the conditions for obtaining a
warrant exist but, by reason of exigent circum
stances, it would not be practical to obtain a
warrant.
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| Powers during
search
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54. (1) In conducting a search of a place
under section 53, an inspector may exercise
the powers described in subsections 51(3) to
(5).
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| Entry
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(2) An inspector or any person acting under
the authority of 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
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
|
55. (1) Subject to subsections (2) and (3), a
certificate purporting to be signed by an
analyst stating that the analyst has analysed 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 sections 61 to 63 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 pro
duced 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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56. (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 prescribed project or other
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 fish
ery officer or any other prescribed authority of
the occurrence or the danger of the occur
rence.
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| Report
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(2) As soon as possible in the circum
stances, the person described in any of para
graphs (1)(a) to (c) shall, subject to the
regulations, provide to the inspector, fishery
officer or other prescribed authority a full
report of the details of the occurrence or the
danger of the occurrence.
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| Duty to take
corrective
measures
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(3) Any person described in any of para
graphs (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
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(4) Where an inspector, fishery officer or
other authority, 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, fishery officer or other authority
may, subject to subsection (5) and the regula
tions, 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, fishery officer or other authority
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 fishery officer 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 subsec
tion relieves any inspector or fishery officer
from liability at law for any illegal or negli
gent 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 sub
stance that, within the meaning of Part XV of
the Canada Shipping Act, constitutes a dis
charge of a pollutant caused by or otherwise
attributable to a ship.
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| Regulations
|
57. The Governor in Council may make
regulations for the conservation and protec
tion of fish habitat and the prevention of the
obstruction or pollution of any waters fre
quented by fish and, without restricting the
generality of the foregoing, may make regula
tions
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(a) prescribing, for the purposes of the
definition ``prescribed project'' in section
2, classes of works, activities and undertak
ings;
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(b) prescribing, for the purposes of the
definition ``deleterious substance'' in sec
tion 42,
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(i) substances and classes of substances,
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(ii) quantities or concentrations of sub
stances and classes of substances in
water, and
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(iii) treatments, processes and changes in
water;
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(c) prescribing the manner and circum
stances in which any information shall be
provided to the Minister without request
under subsection 48(1);
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(d) prescribing the manner and circum
stances in which the Minister may make
orders under subsection 48(2) and the terms
of the orders;
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(e) prescribing the deleterious substances or
classes thereof authorized to be deposited
notwithstanding subsection 50(1);
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(f) prescribing the waters or places or
classes thereof where any deleterious sub
stances or classes thereof referred to in
paragraph (e) are authorized to be depos
ited;
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(g) prescribing the works, activities or
undertakings or classes thereof in the course
or conduct of which any deleterious sub
stances or classes thereof referred to in
paragraph (e) are authorized to be depos
ited;
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(h) prescribing the quantities or concentra
tions of any deleterious substances or
classes thereof referred to in paragraph (e)
that are authorized to be deposited;
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(i) prescribing the conditions or circum
stances under which and the requirements
subject to which any deleterious substances
or classes thereof referred to in paragraph
(e) 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 (f) or in the course
or conduct of any works, activities or
undertakings or classes thereof referred to
in paragraph (g);
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(j) prescribing the persons who may autho
rize the deposit of any deleterious sub
stances or classes thereof in the absence of
any other authority, and the conditions or
circumstances under which and require
ments subject to which those persons may
grant the authorization;
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(k) respecting the alteration, disruption or
destruction of fish habitat, for the purposes
of subsection 49(1);
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(l) prescribing the authorities to whom a
notification is to be given under subsection
56(1);
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(m) prescribing the manner in which the
report referred to in subsection 56(2) is to be
made, the information to be contained in it
and the circumstances in which no report is
required to be made;
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(n) prescribing the manner in which inspec
tors and fishery officers or other authorities
may take any measures or give any direc
tions under subsection 56(4) and the condi
tions to which such measures or directions
are subject;
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(o) prescribing the manner and circum
stances in which any measures taken or
directions given under subsection 56(4)
may be reviewed, rescinded or varied;
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(p) prescribing the fees that may be charged
by Her Majesty in right of Canada for any
permits, authorizations or approvals given
under this Part; and
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(q) prescribing any other matters necessary
for or incidental to carrying out the pur
poses and provisions of this Part.
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| Delegation
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58. (1) The Governor in Council may make
regulations delegating, to any minister of the
government of a province or any person or
class of persons employed by the government
of a province, any of the powers conferred on
the Minister by sections 43 to 47 and para
graphs 48(1)(a) and (2)(a) and (b) and
49(1)(b) in relation to any work, activity or
undertaking other than a prescribed project, in
respect of any waters within that province and
setting out the conditions and circumstances
of the delegation.
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| References to
Her Majesty
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(2) The references to ``Her Majesty in right
of Canada'' in subsections 43(3) and 47(4) are
deemed to be references to Her Majesty in
right of the province in any case where a
regulation has been made under subsection (1)
delegating to a minister of the government of
the province or any person or class of persons
employed by that government the powers
conferred on the Minister by those provisions.
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| Inconsistency
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(3) Any approval, authorization, require
ment, direction or order made by a minister of
the government of a province or a person or
class of persons referred to in subsection (1)
that is inconsistent with any term or condition
of a permit issued under subsection 49(3) or
with any approval, authorization, require
ment, direction or order made by the Minister
is void to the extent of the inconsistency.
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| Five-year
review
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59. (1) Within five years after the coming
into force of subsections 49(2) and (3) and
58(1), respectively, a comprehensive review
of the operation of those subsections shall be
undertaken by such committee of the House of
Commons, of the Senate or of both Houses of
Parliament as may be designated or estab
lished by Parliament for that purpose.
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| Report to
Parliament
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(2) The committee referred to in subsection
(1) shall, within one year after each review is
undertaken pursuant to that subsection or
within such further time as Parliament may
authorize, submit a report on the review to
Parliament including a statement of any
changes the committee recommends.
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| Civil liability
|
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) subject to subsection (4),
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(i) own the deleterious substance or have
the charge, management or control of it,
or
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(ii) own or have the charge, management
or control of the prescribed project or
other work, activity or undertaking that
resulted in the occurrence or the danger
of the occurrence, or
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(b) are, to the extent of their respective
degrees of fault or negligence, persons
other than persons described in subpara
graph (a)(i) or (ii), who cause or contribute
to the occurrence or the danger of the
occurrence,
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are jointly and severally liable for all costs in
curred 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 de
posit or harmful alteration, disruption or de
struction, or to counteract, mitigate or remedy
any adverse effects that result or may reason
ably be expected to result from such a deposit
or harmful alteration, disruption or destruc
tion.
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| Recovery of
costs
|
(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 proceed
ings 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
|
(3) Any persons described in subparagraphs
(1)(a)(i) and (ii) and paragraph (1)(b) 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 subsec
tion (4), in the case of persons described in
those subparagraphs, and to the extent deter
mined according to their respective degrees of
fault or negligence, in the case of persons
described in that paragraph, jointly and sever
ally 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 there
from, 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
|
(4) The liability of any person described in
subparagraph (1)(a)(i) or (ii) is absolute and
does not depend on proof of fault or negli
gence, 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 five 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 sub
stance that, within the meaning of Part XV of
the Canada Shipping Act, constitutes a dis
charge of a pollutant caused by or otherwise
attributable to a ship.
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