|
|
|
|
| Right of
passage
|
38. An enforcement officer, analyst or any
other person may, while carrying out their
functions under this Act, enter on and pass
through or over private property without being
liable for exercising that power or without the
owner of the property having the right to
object to that use of the property.
|
|
| Assistance
|
39. The owner or the person in charge of a
place entered by an enforcement officer or
analyst under section 32, and every person
found in the place, shall
|
|
|
|
(a) give the enforcement officer or analyst
all reasonable assistance to enable the
officer or analyst to carry out their functions
under this Act; and
|
|
|
|
(b) provide the enforcement officer or
analyst with any information with respect to
the administration of this Act that the
enforcement officer or analyst may
reasonably require.
|
|
|
|
|
|
| Forfeiture on
consent
|
40. (1) If an enforcement officer has seized
a thing under section 32 or subsection 35(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
forfeited to Her Majesty in right of Canada.
|
|
| Disposal or
destruction
|
(2) The Minister may dispose of or destroy
a 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.
|
|
| Forfeiture by
order of court
|
41. (1) Subject to sections 42 and 43, if a
person is convicted of an offence under this
Act and anything seized under section 32 or
subsection 35(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
period for taking an appeal from the
conviction or on the final conclusion of the
proceedings, 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 35(4)(a) or (b) is deemed not to
have been seized under section 32 or
subsection 35(1).
|
|
| Court may
order
forfeiture
|
42. If the authorized representative of a
Canadian vessel or the registered owner of a
Canadian aircraft has been convicted of an
offence under this Act, the convicting court
may, if the vessel or aircraft was seized under
section 32 or subsection 35(1), in addition to
any other penalty imposed, order that the
vessel or aircraft, or any security given under
subsection 34(1) be forfeited, and on the
making of the order, the vessel or aircraft or
security is forfeited to Her Majesty in right of
Canada.
|
|
| Disposal of
forfeited
vessel,
aircraft, etc.
|
43. (1) If proceedings referred to in
subsection 34(2) are instituted within the
period referred to in that subsection and, at the
final conclusion of those proceedings, any
vessel or aircraft, or any security given under
subsection 34(1), is ordered to be forfeited, it
may be disposed of as the Governor in Council
directs.
|
|
| Return of
seized vessel,
etc., where no
forfeiture
ordered
|
(2) If a thing has been seized under section
32 and proceedings referred to in subsection
(1) are instituted, but the thing is not, at the
final conclusion of the proceedings, ordered to
be forfeited, it must be returned to the person
from whom it was seized, the proceeds of any
sale of the cargo under subsection 33(3) must
be paid to that person and any security given
to the Minister under subsection 34(1) must be
returned to that person.
|
|
| Exception
|
(3) If, 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
Act or the regulations, 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 of the
cargo or security may be applied in payment
of the fine.
|
|
| Application
by person
claiming
interest
|
44. (1) If a 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 a right or
an interest in the thing as owner, holder of a
security established on property or other right
in rem or holder of any other claim under
Canadian law may, within 30 days after the
day on which 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 must fix a day for the
hearing of the application.
|
|
| Notice
|
(3) An applicant for an order under
subsection (5) must, at least 30 days before the
day fixed under subsection (2), serve a notice
of the application and of the hearing on the
Minister and on all other persons claiming a
right or an interest in the thing that is the
subject-matter of the application as owner,
holder of a security established on property or
other right in rem 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
must, 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) If, 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 holder of a security established
on property, 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 person who gave the
property as security,
|
|
|
|
those of the applicant and the intervenors in
respect of whom the Court is so satisfied are
entitled to an order declaring that their rights
or interests are not affected by the forfeiture
and declaring the nature and extent of each of
their rights or interests and the ranking among
them.
|
|
| Additional
order
|
(6) If an order is made under subsection (5),
the Court may, in addition, order that the thing
to which the rights or interests relate be
delivered to one or more of the persons found
to have a right or 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.
|
|
|
|
|
|
| Designation
of inspectors
|
45. (1) The Minister may designate as an
inspector, for the purpose of this Act or any
provision of this Act, any person or any
member of a class of persons who, in the
Minister's opinion, is qualified to be so
designated.
|
|
| Limits
|
(2) The Minister may, including on the
request of the Minister of Foreign Affairs,
limit the powers that may be exercised by an
inspector under this Act.
|
|
| Production of
certificate
|
(3) The Minister must provide every
inspector with a certificate of designation that
includes any limits specified under subsection
(2). On entering any place, the inspector must,
if so requested, produce the certificate to the
person in charge of the place.
|
|
| Powers of
inspectors
|
46. (1) Subject to subsections (2) and (6),
for the purposes of this Act, an inspector may,
at any reasonable time, enter any place in the
Antarctic in which the inspector believes, on
reasonable grounds, there is anything to which
this Act applies or any document relating to its
administration.
|
|
| Dwelling-hou
ses
|
(2) An inspector may not enter a
dwelling-house without the consent of the
occupant.
|
|
| Stopping and
detaining
conveyances
|
(3) For the purposes of this Act, an inspector
may, at any reasonable time, direct that any of
the following be moved to a place where an
inspection can be carried out and may, for a
reasonable time, detain any of the following:
|
|
|
|
(a) a Canadian vessel or Canadian aircraft
in the Antarctic; or
|
|
|
|
(b) any other conveyance in the Antarctic
that is owned by a Canadian except a vessel
or aircraft that is not a Canadian vessel or
Canadian aircraft.
|
|
| Powers in
relation to
vessels, etc.
|
(4) Subject to subsection (2), for the
purposes of this Act, an inspector may, at any
reasonable time,
|
|
|
|
(a) board a Canadian vessel or Canadian
aircraft in the Antarctic; or
|
|
|
|
(b) travel on the vessel or aircraft.
|
|
| Powers of
inspectors
|
(5) In carrying out an inspection of a place
under this section, an inspector may exercise
any of the powers referred to in subsections
30(9), (11) and (12).
|
|
| Foreign
ownership
|
(6) An inspector may not exercise any
powers under this section in respect of any
station, installation, equipment, platform
anchored at sea, shipping container or
conveyance (other than a Canadian vessel or
Canadian aircraft) that is owned by a person
who is not a Canadian unless the inspector first
obtains the consent of the person in charge of
the station, installation, equipment, platform,
container or conveyance.
|
|
| Analysts
|
(7) An analyst may, for the purposes of this
Act, accompany an inspector who is carrying
out an inspection of a place under this section,
and the analyst may, when accompanying the
inspector, enter the place and exercise any of
the powers referred to in subsection (5).
|
|
| Assistance
|
(8) The owner of a place or a Canadian or
permit holder in charge of a place being
inspected under this section, and every
Canadian or permit holder found in the place,
shall
|
|
|
|
(a) give the inspector or analyst all
reasonable assistance to enable the
inspector or analyst to carry out their
functions under this Act; and
|
|
|
|
(b) provide the inspector or analyst with any
information with respect to the
administration of this Act that he or she may
reasonably require.
|
|
| Production of
documents
and samples
|
47. (1) The Minister may, for the purposes
of this Act, by registered letter or by a demand
served personally, require any Canadian, or
any permit holder, who is in Canada or the
Antarctic, within any reasonable time and in
any reasonable manner that may be stipulated
in the letter or demand,
|
|
|
|
(a) to produce at a place specified by the
Minister any sample taken in the Antarctic
or any document; or
|
|
|
|
(b) to conduct any tests in the Antarctic or
take any measurements or samples there.
|
|
| Compliance
|
(2) A person who is required to do anything
under subsection (1) shall, despite any other
law to the contrary, comply with the
requirement.
|
|
|
|
|
|
| Obstruction
|
48. No person in Canada, and no Canadian
or permit holder in the Antarctic, shall
obstruct an enforcement officer, inspector or
analyst or hinder any of them in carrying out
their functions under this Act.
|
|
| False or
misleading
information,
etc.
|
49. No person in Canada, and no Canadian
or permit holder in the Antarctic, shall, with
respect to any matter related to this Act,
knowingly or negligently
|
|
|
|
(a) provide any person with false or
misleading information, results or samples;
or
|
|
|
|
(b) file a document that contains false or
misleading information.
|
|
|
|
|
|
| Contravention
of Act and
regulations
|
50. (1) Every person or Canadian vessel
commits an offence if the person or vessel
contravenes
|
|
|
|
(a) a provision of this Act or the regulations;
|
|
|
|
(b) an obligation or a prohibition arising
from this Act or the regulations, including
one arising from a condition of a permit;
|
|
|
|
(c) an order or a direction made under this
Act; or
|
|
|
|
(d) an order, direction or decision of a court
made under this Act.
|
|
| Penalties
|
(2) Every person or Canadian vessel that
commits an offence under subsection (1) is
liable
|
|
|
|
(a) on conviction on indictment
|
|
|
|
(i) for a first offence, to a fine of not more
than $1,000,000 or to imprisonment for a
term of not more than three years, or to
both, and
|
|
|
|
(ii) for a second offence, to a fine of not
more than $2,000,000 or to
imprisonment for a term of not more than
five years, or to both; or
|
|
|
|
(b) on summary conviction
|
|
|
|
(i) for a first offence, to a fine of not more
than $300,000 or to imprisonment for a
term of not more than six months, or to
both, and
|
|
|
|
(ii) for a second offence, to a fine of not
more than $600,000 or to imprisonment
for a term of not more than one year, or
to both.
|
|
| Liability of
director or
officer of
corporation
|
51. (1) If a corporation commits an offence
under this Act, any director, officer, agent or
mandatary of the corporation who directed,
authorized, assented to, acquiesced in or
participated in the commission of the offence
is a party to and guilty of the offence, and is
liable on conviction to the penalty provided
for by this Act in respect of the offence
committed by the corporation, whether or not
the corporation has been prosecuted.
|
|
| Duties of
directors
|
(2) Every director and officer of a
corporation shall take all reasonable care to
ensure that the corporation complies with
|
|
|
|
(a) this Act and the regulations; and
|
|
|
|
(b) any orders and directions of, or
prohibitions and requirements imposed by,
any court, the Minister, enforcement
officers, inspectors and analysts.
|
|
| Liability of
master
|
52. (1) If a Canadian vessel commits an
offence under this Act, the master of the vessel
is a party to and guilty of an offence, and is
liable on conviction to the penalty provided
for by this Act in respect of the offence
committed by the vessel, whether or not the
vessel has been prosecuted, if the master
directed, authorized, assented to, acquiesced
in or participated in the commission of the
offence.
|
|
| Duties of
masters
|
(2) Every master of a Canadian vessel shall
take all reasonable care to ensure that the
vessel complies with
|
|
|
|
(a) this Act and the regulations; and
|
|
|
|
(b) orders and directions of, or prohibitions
and requirements imposed by, any court,
the Minister, enforcement officers,
inspectors and analysts.
|
|
| Continuing
offence
|
53. If an offence under this Act is
committed or continued on more than one day,
the person or Canadian vessel that committed
the offence is liable to be convicted for a
separate offence for each day on which it is
committed or continued.
|
|
| Identifying
authorized
representative,
master, etc.
|
54. The authorized representative or master
of a Canadian vessel or the registered owner or
pilot in command of a Canadian aircraft may
be charged with an offence under this Act as
authorized representative, master, registered
owner or pilot in command of the vessel or
aircraft if it is adequately identified, and no
such charge is invalid by reason only that it
does not name the authorized representative,
master, registered owner or pilot in command.
|
|
| Due diligence
|
55. (1) No person may be found guilty of an
offence under this Act if it is established that
the person exercised all due diligence to
comply with this Act or to prevent the
commission of the offence.
|
|
| Exception
|
(2) Subsection (1) does not apply to an
offence relating to
|
|
|
|
(a) a contravention of paragraph 12(1)(f) or
(g);
|
|
|
|
(b) a contravention of section 48; or
|
|
|
|
(c) a contravention of section 49 committed
knowingly.
|
|
| No
proceedings
without
consent
|
56. No proceedings in respect of an offence
under this Act may be instituted except by or
with the consent of the Attorney General of
Canada.
|
|
| Limitation
period
|
57. (1) Proceedings by way of summary
conviction in respect of an offence under this
Act may be instituted at any time within, but
not later than, two years after the day on which
the Minister became aware of the
subject-matter of the proceedings.
|
|
| Minister's
certificate
|
(2) A document purporting to have been
issued by the Minister, certifying the day on
which the Minister became aware of the
subject-matter of any proceedings, must be
received in evidence and, in the absence of
any evidence to the contrary, must be
considered as proof of that fact without proof
of the signature or of the official character of
the person appearing to have signed the
document and without further proof.
|
|