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| Entry
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226. An investigator, inspector, analyst or
any other person may, while carrying out
powers, duties or functions under this Act,
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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| Assistance
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227. The owner or the person in charge of a
place entered by an inspector, investigator or
analyst under section 218 or 220, and every
person found in the place, shall
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(a) give the inspector, investigator or ana
lyst all reasonable assistance to enable them
to carry out duties and functions under this
Act; and
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(b) provide the inspector or investigator
with such information with respect to the
administration of this Act and the regula
tions as the inspector or investigator may
reasonably require.
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| Obstruction
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228. While an inspector, investigator or
analyst is exercising powers or carrying out
duties and functions under this Act, no person
shall
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(a) knowingly make any false or misleading
statement, either orally or in writing, to
them; or
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(b) otherwise obstruct or hinder them.
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| Forfeiture on
consent
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229. (1) Where an inspector has seized any
thing under section 220 or subsection 223(1)
and the owner or person who was in lawful
possession of it at the time of seizure consents
in writing at the request of the inspector to the
forfeiture of the thing, it is thereupon forfeited
to Her Majesty in right of Canada.
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| Disposal or
destruction
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(2) The Minister may dispose of or destroy
any thing forfeited under subsection (1) and,
if the Minister so directs, the costs of the
disposal or destruction shall be paid by the
owner or the person who was in lawful
possession of the thing at the time it was
seized.
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| Forfeiture by
order of court
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230. (1) Subject to sections 231 and 232,
where a person is convicted of an offence
under this Act and any thing seized under
section 220 or subsection 223(1) is then being
detained,
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(a) the thing is, on the conviction and in
addition to any punishment imposed for the
offence, forfeited to Her Majesty in right of
Canada, if the court so directs, in which case
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(i) the Minister may dispose of or destroy
the thing, and
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(ii) the costs of the forfeiture and disposal
or destruction shall be paid by the
offender; or
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(b) the thing shall, on the expiration of the
time for taking an appeal from the convic
tion or on the final conclusion of the
proceedings, as the case may be, be restored
to the person from whom it was seized or to
any other person entitled to possession of it
on such conditions, if any, as may be
imposed by order of the court and as, in the
opinion of the court, are necessary to avoid
the commission of any further offence
under this Act.
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| Things
deemed not to
have been
seized
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(2) For the purposes of subsection (1), any
thing released from detention under paragraph
223(4)(a) or (b) are deemed not to have been
seized under section 220 or subsection 223(1).
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| Court may
order
forfeiture
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231. Where the owner of any ship, aircraft,
platform or other structure has been convicted
of an offence under section 272, the convict
ing court may, if the ship, aircraft, platform or
structure was seized under section 220 or
subsection 223(1), in addition to any other
penalty imposed, order that the ship, aircraft,
platform or structure, or any security given
under subsection 222(1), be forfeited, and on
the making of such an order the ship, aircraft,
platform, structure or security is forfeited to
Her Majesty in right of Canada.
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| Disposal of
forfeited ship,
aircraft, etc.
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232. (1) Where proceedings referred to in
subsection 222(2) are instituted within the
time therein provided and, at the final conclu
sion of those proceedings, any ship, aircraft,
platform or other structure or any security
given under subsection 222(1) is ordered to be
forfeited, it may be disposed of as the
Governor in Council directs.
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| Return of
seized ship,
etc., where no
forfeiture
ordered
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(2) Where any thing has been seized under
section 220 and proceedings referred to in
subsection 222(2) are instituted, but the thing
is not, at the final conclusion of the proceed
ings, ordered to be forfeited, it shall be
returned, the proceeds of any sale of the cargo
under subsection 221(3) shall be paid or any
security given to the Minister under subsec
tion 222(1) shall be returned to the person
from whom the thing was seized.
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| Exception
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(3) Where, at the conclusion of proceedings
referred to in subsection (1), the person from
whom the thing was seized is convicted of an
offence arising out of a contravention of this
Part, the thing and any cargo or the proceeds
or security may be retained until the fine is
paid or the thing and any cargo may be sold
under execution in satisfaction of the fine, or
the proceeds realized from the sale of the
cargo or the security or any part thereof may
be applied in payment of the fine.
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| Application
by person
claiming
interest
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233. (1) Where any thing has been ordered
to be forfeited under this Act, any person,
other than a person who was a party to the
proceedings that resulted in the order, who
claims an interest in the thing as owner,
mortgagee, lien holder or holder of any other
claim under Canadian law may, within 30 days
after the thing is ordered to be forfeited, apply
by notice in writing to the Federal Court for an
order under subsection (5).
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| Date of
hearing
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(2) The Federal Court shall fix a day for the
hearing of an application made under subsec
tion (1).
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| Notice
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(3) An applicant for an order under subsec
tion (5) shall, at least 30 days prior to the day
fixed under subsection (2) for the hearing of
the application, serve a notice of the applica
tion and of the hearing on the Minister and on
all other persons claiming an interest in the
thing that is the subject-matter of the applica
tion as owner, mortgagee, lien holder or holder
of any other claim under Canadian law of
whom the applicant has knowledge.
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| Notice of
intervention
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(4) Each person, other than the Minister,
who is served with a notice under subsection
(3) and who intends to appear at the hearing of
the application to which the notice relates
shall, at least 10 days prior to the day fixed for
the hearing, file a notice of intervention in the
Registry of the Federal Court and serve a copy
thereof on the Minister and on the applicant.
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| Order
declaring
nature and
extent of
interests
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(5) Where, on the hearing of an application
under this section, the Federal Court is
satisfied that the applicant, or the intervenors,
if any, or any of them,
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(a) is innocent of any complicity in any
conduct that caused the thing to be subject
to forfeiture and of any collusion in relation
to any such conduct, and
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(b) exercised all reasonable care in respect
of the persons permitted to obtain posses
sion and use of the thing so as to be satisfied
that it was not likely to be used contrary to
the provisions of this Act or, in the case of
a mortgagee or lien holder, other than the
holder of a maritime lien or statutory right
in rem, that the applicant or intervenor
exercised such care with respect to the
mortgagor or the lien giver,
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those of the applicant and the intervenors in
respect of whom the Court is so satisfied are
entitled to an order declaring that their inter
ests are not affected by the forfeiture and de
claring the nature and extent of each of their
interests and the priorities among them.
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| Additional
order
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(6) Where an order is made under subsec
tion (5), the Court may, in addition, order that
the thing to which the interests relate be
delivered to one or more of the persons found
to have an interest therein or that an amount
equal to the value of each of the interests so
declared be paid to the persons found to have
those interests.
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| Definition of
``order''
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234. For the purposes of sections 235 to
271, ``order'' means an environmental protec
tion compliance order issued under section
235.
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| Order
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235. (1) Whenever, during the course of an
inspection or a search, an inspector has
reasonable grounds to believe that any provi
sion of this Act or the regulations has been
contravened in the circumstances described in
subsection (2) by a person who is continuing
the commission of the offence, or that any of
those provisions will be contravened in the
circumstances described in that subsection,
the inspector may issue an environmental
protection compliance order directing any
person described in subsection (3) to take any
of the measures referred to in subsection (4)
and, where applicable, subsection (5) that are
reasonable in the circumstances and consis
tent with public safety and the protection of
the environment and public safety, in order to
cease or refrain from committing the alleged
contravention.
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| Circumstances
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(2) For the purposes of subsection (1), the
circumstances in which the alleged contraven
tion has been or will be committed are as
follows, namely,
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(a) the exportation, importation, manufac
ture, transportation, processing or distribu
tion of a substance or product containing a
substance;
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(b) the possession, storage, use, sale, offer
ing for sale, advertisement or disposal of a
substance or product containing a sub
stance;
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(c) the use of a substance or product
containing a substance in a commercial
manufacturing or processing activity; or
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(d) an act or omission in relation to or in the
absence of a notice, permit, approval,
licence, certificate, allowance or other
authorization or a term or condition thereof.
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| Application
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(3) Subsection (1) applies to any person
who
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(a) owns or has the charge, management or
control of the substance or any product
containing the substance to which the
alleged contravention relates or the proper
ty on which the substance or product is
located; or
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(b) causes or contributes to the alleged
contravention.
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| Specific
measures
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(4) For the purposes of subsection (1), an
order in relation to an alleged contravention of
any provision of this Act or the regulations
may specify that the person to whom the order
is directed take any of the following measures:
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(a) refrain from the doing of anything in
contravention of this Act or the regulations
or do anything to comply with this Act or
the regulations;
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(b) stop or shut down any activity, work,
undertaking or thing for a specified period;
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(c) cease the operation of any activity or any
part of a work, undertaking or thing until the
inspector is satisfied that the activity, work,
undertaking or thing will be operated in
accordance with this Act and the regula
tions;
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(d) move any conveyance to another loca
tion including, in the case of a ship, move
the ship into port or, in the case of an
aircraft, land the aircraft;
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(e) unload or re-load the contents of any
conveyance; and
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(f) take any other measure that the inspector
considers necessary to facilitate com
pliance with the order or protect or restore
the environment, including, but not limited
to,
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(i) maintaining records on any relevant
matter,
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(ii) reporting periodically to the inspec
tor, and
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(iii) submitting to the inspector any
information, proposal or plan specified
by the inspector setting out any action to
be taken by the person with respect to the
subject-matter of the order.
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| Additional
measures for
certain alleged
offences
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(5) For the purposes of subsection (1), an
order in relation to an alleged contravention of
section 124 or 125 or any regulations made
under section 135 may specify that the person
to whom the order is directed, whether that
person is not a permit holder or is contraven
ing a condition of a permit, take any of the
following measures, in addition to any of the
measures referred to in subsection (4):
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(a) cease dumping or cease loading a
substance; or
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(b) refrain from disposing of any ship,
aircraft, platform or structure.
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| Contents of
order
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(6) Subject to section 236, an order must be
made in writing and must set out
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(a) the names of the persons to whom the
order is directed;
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(b) the provision of this Act or the regula
tions that is alleged to have been or will be
contravened;
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(c) the relevant facts surrounding the al
leged contravention;
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(d) the measures to be taken and the manner
in which they are to be carried out;
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(e) the period of time within which any
measure is to begin and is to be carried out;
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(f) subject to subsection (7), the duration of
the order;
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(g) a statement that a request for a review
may be made to the Chief Review Officer;
and
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(h) the period of time within which a request
for a review may be made.
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| Duration of
order
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(7) An order may not be issued for a period
of more than 180 days.
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| Exigent
circumstances
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236. (1) In the case of exigent circum
stances, an order may be given orally, but
within the period of seven days immediately
after it is so given, a written order must be
issued in accordance with section 235.
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| Definition of
exigent
circumstances
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(2) For greater certainty, exigent circum
stances include circumstances in which the
delay necessary to issue a written order that
meets the requirements of subsection 235(6)
would result in danger to human life or the
environment.
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| Notice of
intent
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237. (1) Except in exigent circumstances,
the inspector shall, wherever practicable,
before issuing an order,
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(a) provide an oral or a written notice of the
intent of the inspector to issue the order to
every person who will be subject to the
order; and
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(b) allow a reasonable opportunity in the
circumstances for the person to make oral
representations.
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| Contents of
notice of
intent
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(2) A notice of intent to issue an order shall
include
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(a) a statement of the purpose of the notice;
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(b) a reference to the statutory authority
under which the order will be issued; and
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(c) a statement that the party notified may
make oral representations to the inspector
within a period stated in the notice.
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| Compliance
with the order
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238. (1) A person to whom an order is
directed shall, immediately on receipt of the
order or a copy of the order or on being
directed by an inspector pursuant to an order
given orally under section 236, comply with
the order.
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| No bar to
proceedings
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(2) The issuance of or compliance with an
order in respect of a person's alleged con
travention of this Act or the regulations is not
a bar to any proceedings against the person
under this or any other Act in relation to the
alleged contravention by that person.
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| Intervention
by inspector
|
239. (1) Where any person fails to take any
measures specified in an order, an inspector
may take those measures or cause them to be
taken.
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| Access to
property
|
(2) Any inspector or other person autho
rized or required to take any measures under
subsection (1) may enter and have access to
any place or property and may do such
reasonable things as may be necessary in the
circumstances.
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| Personal
liability
|
(3) Any person, other than a person de
scribed in subsection 235(3), who provides
assistance or advice in taking the measures
specified in an order or who takes any
measures authorized under subsection (1) is
not personally liable either civilly or criminal
ly in respect of any act or omission in the
course of providing assistance or advice or
taking any measures under that subsection
unless it is established that the person acted in
bad faith.
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| Recovery of
reasonable
costs and
expenses by
Her Majesty
|
240. (1) Her Majesty in right of Canada may
recover the costs and expenses of and inciden
tal to taking any measures under subsection
239(1) from
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(a) any person referred to in paragraph
235(3)(a); and
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(b) any person referred to in paragraph
235(3)(b) to the extent of the person's
negligence in causing or contributing to the
alleged contravention.
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| Reasonably
incurred
|
(2) The costs and expenses referred to in
subsection (1) shall only be recovered to the
extent that they can be established to have
been reasonably incurred in the circum
stances.
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| Joint and
several
liability
|
(3) Subject to subsection (4), the persons
referred to in subsection (1) are jointly and
severally liable for the costs and expenses
referred to in that subsection.
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| Limitation
|
(4) A person referred to in paragraph
235(3)(b) shall not be held liable under
subsection (3) to an extent greater than the
extent of the person's negligence in causing or
contributing to the alleged contravention.
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| Procedure
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(5) A claim under this section may be sued
for and recovered by Her Majesty in right of
Canada with costs in proceedings brought or
taken therefor in the name of Her Majesty in
right of Canada in any court of competent
jurisdiction.
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| Recourse or
indemnity
|
(6) This section does not limit or restrict any
right of recourse or indemnity that a person
may have against any other person.
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