Detention of Ships

Detention of ships

225. (1) Where an enforcement officer has reasonable grounds to believe that the owner or master of a ship has committed an offence under section 272 and that a ship was used in connection with the commission of the offence, the enforcement officer may make a detention order in respect of the ship.

Order in writing

(2) A detention order made under subsection (1) shall be in writing and be addressed to all persons at any port in Canada where the ship to which the order relates is or will be who are empowered to give a clearance in respect of the ship.

Notice of detention order

(3) Notice of a detention order made under subsection (1) shall be served on the master of the ship in respect of which the order is made.

Duty of owner or master of ship

(4) Where notice of a detention order made under subsection (1) has been served on the master of the ship, the owner or master of the ship shall not give an order for the ship to go into an area of the sea referred to in paragraph 122(2)(f) or (g) during the term of the detention order.

Duty of persons empowered to give clearance

(5) Subject to subsection (6), no person to whom a detention order made under subsection (1) is addressed shall, after notice of the order is received by the person, give clearance in respect of the ship to which the order relates.

When clearance given

(6) A person to whom a detention order made under subsection (1) is addressed and who has received notice of the order may give clearance in respect of the ship to which the order relates where

    (a) the owner or master of the ship

      (i) has not, within 30 days after the order was made, been charged with the offence that gave rise to the making of the order, or

      (ii) has, within 30 days after the order was made, been charged with that offence and appears in Canada to answer to the charge;

    (b) security for payment of the maximum fine that might be imposed as a result of a conviction of the person charged with that offence and of costs related to proceedings in connection with the charge, or payment of any lesser amount that is approved by the Minister or a person designated by the Minister for the purpose, is given to Her Majesty in right of Canada; or

    (c) proceedings in respect of the alleged offence that gave rise to the making of the detention order are discontinued.

Assistance to Enforcement Officers and Analysts

Right of passage

226. An enforcement officer or 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.

Assistance

227. The owner or the person in charge of a place entered by an enforcement officer or analyst under section 218 or 220, and every person found in the place, shall

    (a) give the enforcement officer or analyst all reasonable assistance to enable them to carry out duties and functions under this Act; and

    (b) provide the enforcement officer or analyst with any information with respect to the administration of this Act and the regulations that the enforcement officer or analyst may reasonably require.

Obstruction

228. While an enforcement officer or analyst is exercising powers or carrying out duties and functions under this Act, no person shall

    (a) knowingly make any false or misleading statement, either orally or in writing, to them; or

    (b) otherwise obstruct or hinder them.

Forfeiture

Forfeiture on consent

229. (1) Where an enforcement officer has seized a thing under section 220 or subsection 223(1) and the owner or person who was in lawful possession of it at the time of the seizure consents in writing at the request of the enforcement officer to its forfeiture, it is thereupon forfeited to Her Majesty in right of Canada.

Disposal or destruction

(2) The Minister may dispose of or destroy anything 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 it at the time it was seized.

Forfeiture by order of court

230. (1) Subject to sections 231 and 232, where a person is convicted of an offence under this Act and anything seized under section 220 or subsection 223(1) is then being detained,

    (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

      (i) the Minister may dispose of or destroy the thing, and

      (ii) the costs of the forfeiture and disposal or destruction shall be paid by the offender; or

    (b) the thing shall, on the expiry of the time for taking an appeal from the conviction 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 its possession on any conditions that may be imposed by order of the court and that, in the opinion of the court, are necessary to avoid the commission of a further offence under this Act.

Things deemed not to have been seized

(2) For the purpose of subsection (1), anything released from detention under paragraph 223(4)(a) or (b) is deemed not to have been seized under section 220 or subsection 223(1).

Court may order forfeiture

231. Where the owner of any ship, aircraft, platform or other structure has been convicted of an offence under section 272, the convicting 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.

Disposal of forfeited ship, aircraft, etc.

232. (1) Where proceedings referred to in subsection 222(2) are instituted within the time provided in that subsection and, at the final conclusion 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.

Return of seized ship, etc., where no forfeiture ordered

(2) Where anything 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 proceedings, 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 subsection 222(1) shall be returned to the person from whom the thing was seized.

Exception

(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.

Application by person claiming interest

233. (1) Where anything 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).

Date of hearing

(2) The Federal Court shall fix a day for the hearing of an application made under subsection (1).

Notice

(3) An applicant for an order under subsection (5) shall, at least 30 days before the day fixed under subsection (2) for the hearing of the application, serve a notice of the application 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 application as owner, mortgagee, lien holder or holder of any other claim under Canadian law of whom the applicant has knowledge.

Notice of intervention

(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 before the day fixed for the hearing, file a notice of intervention in the Registry of the Federal Court and serve a copy of the notice on the Minister and on the applicant.

Order declaring nature and extent of interests

(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,

    (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

    (b) exercised all reasonable care in respect of the persons permitted to obtain possession 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,

those of the applicant and the intervenors in respect of whom the Court is so satisfied are entitled to an order declaring that their interests are not affected by the forfeiture and declaring the nature and extent of each of their interests and the priorities among them.

Additional order

(6) Where an order is made under subsection (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 in it 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.

Environmental Protection Compliance Orders

Definition of ``order''

234. For the purposes of sections 235 to 271, ``order'' means an environmental protection compliance order issued under section 235.

Order

235. (1) Whenever, during the course of an inspection or a search, an enforcement officer has reasonable grounds to believe that any provision 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 enforcement officer 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 consistent with the protection of the environment and public safety, in order to cease or refrain from committing the alleged contravention.

Circumstan-
ces

(2) For the purposes of subsection (1), the circumstances in which the alleged contravention has been or will be committed are as follows, namely,

    (a) the exportation, importation, manufacture, transportation, processing or distribution of a substance or product containing a substance;

    (b) the possession, storage, use, sale, offering for sale, advertisement or disposal of a substance or product containing a substance;

    (c) the use of a substance or product containing a substance in a commercial manufacturing or processing activity; or

    (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.

Application

(3) Subsection (1) applies to any person who

    (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 property on which the substance or product is located; or

    (b) causes or contributes to the alleged contravention.

Specific measures

(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:

    (a) refrain from doing anything in contravention of this Act or the regulations, or do anything to comply with this Act or the regulations;

    (b) stop or shut down any activity, work, undertaking or thing for a specified period;

    (c) cease the operation of any activity or any part of a work, undertaking or thing until the enforcement officer is satisfied that the activity, work, undertaking or thing will be operated in accordance with this Act and the regulations;

    (d) move any conveyance to another location including, in the case of a ship, move the ship into port or, in the case of an aircraft, land the aircraft;

    (e) unload or re-load the contents of any conveyance; and

    (f) take any other measure that the enforcement officer considers necessary to facilitate compliance with the order or to protect or restore the environment, including, but not limited to,

      (i) maintaining records on any relevant matter,

      (ii) reporting periodically to the enforcement officer, and

      (iii) submitting to the enforcement officer any information, proposal or plan specified by the enforcement officer setting out any action to be taken by the person with respect to the subject-matter of the order.

Additional measures for certain alleged offences

(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 contravening a condition of a permit, take any of the following measures, in addition to any of the measures referred to in subsection (4):

    (a) cease dumping or cease loading a substance; or

    (b) refrain from disposing of any ship, aircraft, platform or structure.

Contents of order

(6) Subject to section 236, an order must be made in writing and must set out

    (a) the names of the persons to whom the order is directed;

    (b) the provision of this Act or the regulations that is alleged to have been or will be contravened;

    (c) the relevant facts surrounding the alleged contravention;

    (d) the measures to be taken and the manner in which they are to be carried out;

    (e) the period within which a measure is to begin and is to be carried out;

    (f) subject to subsection (7), the duration of the order;

    (g) a statement that a request for a review may be made to the Chief Review Officer; and

    (h) the period within which a request for a review may be made.

Duration of order

(7) An order may not be issued for a period of more than 180 days.

Exigent circumstances

236. (1) In the case of exigent circumstances, 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.

Definition of ``exigent circumstan-
ces''

(2) For greater certainty, ``exigent circumstances'' includes 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.

Notice of intent

237. (1) Except in exigent circumstances, the enforcement officer shall, wherever practicable, before issuing an order,

    (a) provide an oral or a written notice of the intent of the enforcement officer to issue the order to every person who will be subject to the order; and

    (b) allow a reasonable opportunity in the circumstances for the person to make oral representations.

Contents of notice of intent

(2) A notice of intent to issue an order shall include

    (a) a statement of the purpose of the notice;

    (b) a reference to the statutory authority under which the order will be issued; and

    (c) a statement that the party notified may make oral representations to the enforcement officer within the period stated in the notice.

Compliance with the order

238. (1) A person to whom an order is directed shall, immediately on receipt of the order or a copy of it or on being directed by an enforcement officer under an order given orally under section 236, comply with the order.