|
|
|
|
| Minister's
powers
|
235. (1) If the Minister has reasonable
grounds to believe that a foreign vessel is in
contravention of an international convention
or protocol listed in Schedule 1, the Minister
may
|
|
|
|
(a) if the vessel has not entered Canadian
waters, direct the vessel not to enter
Canadian waters;
|
|
|
|
(b) if the vessel has entered Canadian
waters but is not in a port in Canada, direct
the vessel to leave Canadian waters; and
|
|
|
|
(c) if the vessel is in a port in Canada, direct
the vessel to leave Canadian waters, subject
to any terms and conditions that the
Minister may specify.
|
|
| Limitation
|
(2) The Minister may not give a direction
under subsection (1) if, in the Minister's
opinion, doing so would put the safety of the
vessel, any person on board or the
environment at imminent risk.
|
|
| Notification
|
(3) If the Minister gives a direction under
subsection (1) in respect of a vessel, the
Minister must notify the state where the vessel
is registered of the direction given and the
reason for it.
|
|
|
|
|
|
|
|
Interpretation
|
|
| Definition of
``violation''
|
236. In sections 237 to 252, ``violation''
means a contravention of a relevant provision
that is designated as a violation by the
regulations made under this Part.
|
|
|
|
Assurances of Compliance and Notices of
Violation
|
|
| If reasonable
grounds to
believe a
violation
|
237. (1) If the Minister has reasonable
grounds to believe that a person or vessel has
committed a violation, the Minister may
|
|
|
|
(a) enter into an assurance of compliance
with the person or vessel that
|
|
|
|
(i) identifies the violation and provides
that the person or vessel will comply with
the provision to which the violation
relates within the period and be subject to
the terms and conditions that are
specified in the assurance,
|
|
|
|
(ii) sets out the amount and form of any
security that, pending compliance with
the assurance, must be deposited with the
Minister, and
|
|
|
|
(iii) sets out the penalty, established in
accordance with the regulations made
under this Part, for the violation that the
person or vessel would have been liable
to pay if the assurance had not been
entered into; or
|
|
|
|
(b) issue, and cause to be served on the
person or vessel, a notice of violation that
names the person or vessel, identifies the
violation and sets out
|
|
|
|
(i) the penalty, established in accordance
with the regulations made under this Part,
for the violation that the person or vessel
is liable to pay,
|
|
|
|
(ii) the period within which the penalty
must be paid or a review of the notice
requested, and
|
|
|
|
(iii) particulars of the manner in which
the penalty must be paid or a review
requested.
|
|
| Extension of
period
|
(2) The Minister may extend the period
specified under subparagraph (1)(a)(i) if the
Minister is satisfied that the person or vessel
with which the assurance of compliance was
entered into is unable to comply with it
because of reasons beyond the person's or
vessel's control.
|
|
| Short-form
descriptions in
notices of
violation
|
(3) The Minister may establish, in respect of
each violation, a short-form description to be
used in notices of violation.
|
|
| Deemed
violation
|
238. (1) A person who, or vessel that, enters
into an assurance of compliance is, unless a
review is requested under subsection (2),
deemed to have committed the violation in
respect of which the assurance was entered
into.
|
|
| Request for
review
|
(2) A person who, or vessel that, enters into
an assurance of compliance may, within 48
hours after the assurance is signed and before
a notice of default is served under subsection
239(2), request a review of the facts of the
violation, in which case the assurance is
deemed to be a notice of violation and a
review under subsection 240(1) of the facts of
the violation and the amount of the penalty is
deemed to have been requested.
|
|
| When
assurance of
compliance
complied with
|
239. (1) If the Minister is satisfied that an
assurance of compliance has been complied
with, the Minister must cause a notice to that
effect to be served on the person or vessel and,
on the service of the notice,
|
|
|
|
(a) no further proceedings may be taken
against the person or vessel with respect to
the violation in respect of which the
assurance was entered into; and
|
|
|
|
(b) any security deposited under
subparagraph 237(1)(a)(ii) must be
returned to the person or vessel.
|
|
| When
assurance of
compliance
not complied
with
|
(2) If the Minister is of the opinion that a
person who, or vessel that, has entered into an
assurance of compliance has not complied
with it, the Minister may cause a notice of
default to be served on the person or vessel to
the effect that, unless an adjudicator
determines under subsection (3) that the
assurance has been complied with,
|
|
|
|
(a) the person or vessel is liable to pay
double the amount of the penalty set out in
the assurance; or
|
|
|
|
(b) the security deposited under
subparagraph 237(1)(a)(ii) is forfeited to
Her Majesty in right of Canada.
|
|
| Review of
notice of
default
|
(3) A person or vessel served with a notice
of default may, within 30 days after being
served and in the prescribed manner, request
a review by an adjudicator of the facts of the
non-compliance with the assurance of
compliance. The burden is on the Minister to
establish, on a balance of probabilities, that
the person or vessel named in the notice did
not comply with the assurance of compliance.
|
|
| Certain
defences not
available
|
(4) A person or vessel named in a notice of
default does not have a defence by reason that
the person or vessel exercised due diligence to
comply with the assurance of compliance.
|
|
| No set off
|
(5) On the service of a notice of default, the
person served has no right of set-off against
any amount spent by the person under the
assurance of compliance.
|
|
| Return of
security
|
(6) Any security deposited under
subparagraph 237(1)(a)(ii) must be returned
to the person or vessel if
|
|
|
|
(a) a notice of default is served under
paragraph (2)(a) and the person or vessel
pays double the amount of the penalty; or
|
|
|
|
(b) an adjudicator determines under
subsection (3) that the assurance has been
complied with.
|
|
| Notice of
violation
|
240. (1) A person or vessel served with a
notice of violation must pay the amount of the
penalty or may, within 30 days after being
served and in the prescribed manner, request
a review by an adjudicator of the facts of the
violation or the amount of the penalty.
|
|
| Burden of
proof
|
(2) In the case of a review of the facts of a
violation, the burden is on the Minister to
establish, on a balance of probabilities, that
the person or vessel named in the notice of
violation committed the violation.
|
|
| When review
not requested
|
(3) If a review is not requested of the facts
of the violation, the person or vessel is deemed
to have committed the violation in respect of
which the notice was served.
|
|
| Compliance
agreements
|
(4) If a contravention of a provision of Part
4 (Safety) is committed while an agreement or
arrangement that provides that inspections of
a vessel to ensure compliance with that
provision will be carried out by its authorized
representative or by a person or organization
acting on their behalf is in effect between the
Minister and the authorized representative,
the amount of any penalty fixed in respect of
that provision is doubled.
|
|
|
|
Choice of Proceedings
|
|
| How
contravention
may be
proceeded
with
|
241. If a contravention can be proceeded
with as a violation or as an offence, the
Minister may commence proceedings in
respect of that contravention as a violation or
recommend that it be proceeded with as an
offence, but it may be proceeded with only as
one or the other.
|
|
|
|
Recovery of Debts
|
|
| Debts due to
Her Majesty
|
242. The following amounts constitute
debts due to Her Majesty in right of Canada
that may be recovered in a court of competent
jurisdiction:
|
|
|
|
(a) unless a review of the amount of the
penalty is requested under subsection
240(1), the amount of a penalty set out in a
notice of violation, from the time the notice
is served;
|
|
|
|
(b) the amount that a notice of default
served under subsection 239(2) provides
that a person is liable to pay, from the time
the notice is served;
|
|
|
|
(c) the amount of a penalty determined by
an adjudicator on a review under subsection
240(1), from the time the adjudicator gives
their decision; and
|
|
|
|
(d) the amount of any reasonable expenses
incurred in attempting to recover an amount
referred to in any of paragraphs (a) to (c).
|
|
| Certificate of
default
|
243. (1) A debt referred to in section 242 in
respect of which there is a default of payment,
or the part of any such debt that has not been
paid, may be certified by the Minister.
|
|
| Judgments
|
(2) On production to the Federal Court, a
certificate made under subsection (1) is to be
registered in that Court and, when registered,
has the same force and effect, and all
proceedings may be taken on it, as if it were a
judgment obtained in that Court for a debt of
the amount specified in it and all reasonable
costs and charges attendant in its registration.
|
|
|
|
Rules of Law about Violations
|
|
| Violations are
not offences
|
244. For greater certainty, a violation is not
an offence and, accordingly, section 126 of the
Criminal Code does not apply.
|
|
| Common law
principles
|
245. Every rule and principle of the
common law that renders any circumstance a
justification or an excuse in relation to a
charge for an offence under a relevant
provision applies in respect of a violation to
the extent that it is not inconsistent with this
Act.
|
|
| Vicarious
liability -
Canadian
maritime
document
holders
|
246. (1) The holder of a Canadian maritime
document is liable for a violation that is
committed in respect of any matter that relates
to an activity or a requirement under that
document, whether or not the person or vessel
that actually committed the violation is
identified or proceeded against in accordance
with this Act.
|
|
| Vicarious
liability -
acts of
employees
and agents
|
(2) A person or vessel is liable for a
violation that is committed by an employee or
agent of the person or vessel acting in the
course of the employee's employment or
within the scope of the agent's authority,
whether or not the employee or agent who
actually committed the violation is identified
or proceeded against in accordance with this
Act.
|
|
|
|
General Provisions
|
|
| Notations
removed
|
247. (1) Five years after a person or vessel
last committed a violation or, except if an
adjudicator determines that an assurance of
compliance was complied with, was served
with a notice of default under subsection
239(2), the Minister is to remove all notations
of violations or default from any records that
the Minister may keep respecting the person
or vessel, unless, in the Minister's opinion, it
is not in the public interest to do.
|
|
| Duty to notify
|
(2) When the Minister is of the opinion that
it is not in the public interest to remove a
notation respecting a person, the Minister is to
have a notice of that fact served on the person.
|
|
| Disclosure of
notations of
violations
|
248. The Minister shall keep a public record
of notations of violations or default kept on
any record that the Minister may keep
respecting the person or vessel.
|
|
| Limitation
period
|
249. No notice of violation may be issued
more than two years after the Minister
becomes aware of the contravention.
|
|
| Certificate of
Minister
|
250. A document that purports to have been
issued by the Minister and certifies the day on
which the Minister became aware of a
violation is evidence, without proof of the
signature or official character of the person
appearing to have signed the document, that
the Minister became aware of the violation on
that day.
|
|
| When
compliance
agreement in
effect
|
251. If a violation arising out of the
contravention of any provision of Part 4 or the
regulations made under that Part is committed
while an agreement or arrangement is in effect
between the Minister and the authorized
representative of a Canadian vessel that
provides that inspections of the vessel to
ensure compliance with that provision will be
carried out by the authorized representative or
a person or an organization acting on their
behalf, the range of penalties fixed under
paragraph 252(g) in respect of the violation is
doubled.
|
|
|
|
|
|
| Regulations
|
252. The Governor in Council may, on the
recommendation of the Minister, make
regulations for carrying out the purposes and
provisions of this Part, including regulations
|
|
|
|
(a) respecting the investigation of shipping
casualties, the alleged contravention of a
relevant provision or an incident involving
a vessel that, in the opinion of the Minister,
jeopardized the safety of persons;
|
|
|
|
(b) respecting the detention of vessels,
including the review of detention orders;
|
|
|
|
(c) specifying the circumstances in which a
vessel is deemed abandoned;
|
|
|
|
(d) respecting the sale of a vessel under
section 234, including measures that must
be taken before the vessel is sold and the
manner of establishing, and the priority of
payment of, claims against the vessel;
|
|
|
|
(e) designating as a violation that may be
proceeded with in accordance with sections
237 to 250 the contravention of a relevant
provision that is an offence under this Act;
|
|
|
|
(f) designating violations that, if continued
on more than one day, constitute a separate
violation for each day on which they are
continued;
|
|
|
|
(g) designating violations that may be
proceeded with by issuing notices of
violation and fixing a range of penalties in
respect of each such violation, up to a
maximum of $25,000 but in any event not
greater than the maximum fine if the
violation were proceeded with by way of
summary conviction;
|
|
|
|
(h) respecting reviews under subsection
239(3) (notices of default) or subsection
240(2) (notices of violation);
|
|
|
|
(i) respecting the service of documents
required or authorized to be served under
this Part, including the manner of serving
them, the proof of their service and the
circumstances under which they are
deemed to have been served; and
|
|
|
|
(j) prescribing anything that by this Part is
to be prescribed.
|
|