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Bill C-115

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Inspectors and Analysts

Designation of inspectors and analysts

51. (1) The Minister may designate any individual or classes of individuals as inspectors or analysts for the purposes of this Part.

Certificate to be produced

(2) The Minister shall furnish every inspector with a certificate of designation, and on entering any place referred to in this Part, an inspector shall, on request, produce the certificate to the person in charge of that place.

Powers of inspector

(3) An inspector 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 any work, activity or undertaking resulting or likely to result in the harmful alteration, disruption or destruction of fish habitat or the deposit of a deleterious substance in waters frequented by fish or in any place under any conditions referred to in subsection 50(1) is being, has been or is likely to be carried on, and the inspector may, for any purpose related to the administration of this Part, conduct inspections, which may include

    (a) examining 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;

    (b) taking samples of any thing that is relevant to the administration of this Part or the regulations made under this Part;

    (c) conducting any tests or analyses or taking any measurements;

    (d) opening and examining 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

    (e) examining any books, records, electronic data or other documents that the inspector believes on reasonable grounds contain any information that is relevant to the administration of this Part or the regulations made under this Part and make copies thereof or take extracts therefrom.

Operation of computer systems and copying equipment

(4) In conducting an inspection of a place under subsection (3), an inspector may

    (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;

    (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

    (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.

Disposition of samples

(5) An inspector who takes a sample under paragraph (3)(b) may dispose of it in any manner that the inspector considers appropriate.

Duty to assist inspectors

52. The owner or person who is in possession or control of a place that is inspected under section 51, and every person found in the place, shall

    (a) give the inspector all reasonable assistance to enable the inspector to carry out the inspection and exercise any power conferred by that section; and

    (b) provide the inspector with any information relevant to the administration of this Part or the regulations made under this Part that the inspector may reasonably require.

Warrant

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 section 61 is being or has been committed and search that place for evidence of the offence.

Authority to issue warrant

(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)

    (a) any thing on or in respect of which an offence referred to in section 61 is being or has been committed, or

    (b) any thing that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence referred to in section 61,

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 conditions that may be specified in the warrant.

Use of force

(3) In executing a warrant issued under subsection (2), the inspector named in it shall not use force unless the inspector is accompanied by a peace officer and the use of force has been specifically authorized in the warrant.

Where warrant not necessary

54. An inspector may exercise the powers described in section 53 without a warrant if the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practical to obtain a warrant.

Powers during search

55. In conducting a search of a place under section 53 or 54, an inspector may exercise the powers described in section 51.

Entry

56. An inspector or any person accompanying 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, in Quebec, without the owner of the property having the right to object to that use of the property.

Certificate of analyst as proof

57. (1) Subject to subsections (2) and (3), a certificate purporting to be signed by an analyst stating that the analyst has analyzed 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 section 61 or 62 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.

Attendance of analyst

(2) The party against whom there is produced any certificate pursuant to subsection (1) may, with leave of the court, require the attendance of the analyst for the purposes of cross-examination.

Notice

(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.

Reports and Corrective Measures

Duty to notify

58. (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

    (a) owns the deleterious substance or has the charge, management or control of it,

    (b) owns or has the charge, management or control of the work, activity or undertaking that resulted in the occurrence or the danger of the occurrence, or

    (c) causes or contributes to the occurrence or the danger of the occurrence

shall immediately notify an inspector, a fishery officer or any other person prescribed by the regulations of the occurrence or the danger of the occurrence.

Report

(2) As soon as possible in the circumstances, the person described in any of paragraphs (1)(a) to (c) shall provide, to the inspector, fishery officer or other person referred to in subsection (1), a full report of the details of the occurrence or the danger of the occurrence, in accordance with any regulations made under this Part.

Duty to take corrective measures

(3) Any person described in any of paragraphs (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.

Corrective measures by inspector or fishery officer

(4) Where an inspector or fishery officer, 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 or fishery officer may, subject to subsection (5) and any regulations made under this Part, 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.

Inconsistent orders

(5) Any requirement or direction of an inspector or fishery officer 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.

Authority to enter any place

(6) For the purposes of subsections (1) to (4), any inspector or other person 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 subsection relieves any person from liability at law for any illegal or negligent acts or omissions they may commit or for loss or damage caused to others by such entry, access or action.

Exception

(7) Subsections (1) to (4) do not apply in respect of any deposit of a deleterious substance that, within the meaning of Part XV of the Canada Shipping Act, constitutes a discharge of a pollutant caused by or otherwise attributable to a ship.

Regulations

Regulations

59. The Governor in Council may make regulations for the conservation and protection of fish habitat, the obstruction of any waters frequented by fish and the prevention of pollution of any waters frequented by fish, and, without restricting the generality of the foregoing, may make regulations

    (a) prescribing, for the purposes of the definition ``deleterious substance'' in section 42,

      (i) substances and classes of substances,

      (ii) quantities or concentrations of substances and classes of substances in water, and

      (iii) treatments, processes and changes in water;

    (b) prescribing the deleterious substances or classes thereof authorized to be deposited notwithstanding subsection 49(1);

    (c) prescribing the waters or places or classes thereof where any deleterious substances or classes thereof referred to in paragraph (b) are authorized to be deposited;

    (d) prescribing the works, activities or undertakings or classes thereof in the course or conduct of which any deleterious substances or classes thereof referred to in paragraph (b) are authorized to be deposited;

    (e) prescribing the quantities or concentrations of any deleterious substances or classes thereof referred to in paragraph (b) that are authorized to be deposited;

    (f) prescribing the conditions or circumstances under which and the requirements subject to which any deleterious substances or classes thereof referred to in paragraph (b) 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 (c) or in the course or conduct of any works, activities or undertakings or classes thereof referred to in paragraph (d);

    (g) prescribing the persons who may authorize the deposit of any deleterious substances or classes thereof in the absence of any other authority, and the conditions or circumstances under which and requirements subject to which those persons may grant the authorization;

    (h) prescribing the manner and circumstances in which any information shall be provided to the Minister without request under subsection 50(1);

    (i) prescribing the manner and circumstances in which the Minister or a person designated by the Minister may make orders under subsection 50(2) and the terms of the orders;

    (j) prescribing any other person to whom a notification is to be given under subsection 58(1);

    (k) prescribing the manner in which the report referred to in subsection 58(2) is to be made, the information to be contained therein and the circumstances in which no report is required to be made;

    (l) prescribing the manner in which inspectors and fishery officers may take any measures or give any directions under subsection 58(4) and the conditions to which such measures or directions are subject;

    (m) prescribing the manner and circumstances in which any measures taken or directions given under subsection 58(4) may be reviewed, rescinded or varied;

    (n) respecting the alteration, disruption or destruction of fish habitat, for the purposes of subsection 48(2);

    (o) prescribing the fees that may be charged by Her Majesty in right of Canada for any approvals given under this Part; and

    (p) prescribing any other matters necessary for or incidental to carrying out the purposes and provisions of this Part.

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

    (a) own the deleterious substance or have the charge, management or control of it,

    (b) own or have the charge, management or control of the work, activity or undertaking that resulted in the occurrence or the danger of the occurrence, or

    (c) are persons other than persons described in paragraph (a) or (b), who cause or contribute to the occurrence or the danger of the occurrence,

are, subject to subsection (4), in the case of persons described in paragraph (a) or (b), and to the extent determined according to their respective degrees of fault or negligence, in the case of persons described in paragraph (c), jointly and severally liable for all costs incurred 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 deposit or harmful alteration, disruption or destruction, or to counteract, mitigate or remedy any adverse effects that result or may reasonably be expected to result from such a deposit or harmful alteration, disruption or destruction.

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 proceedings brought or taken therefor in the name of Her Majesty in any such right in any court of competent jurisdiction.

Joint and several liability

(3) Any persons described in paragraphs (1)(a) to (c) 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 subsection (4), in the case of persons described in paragraph (1)(a) or (b), and to the extent determined according to their respective degrees of fault or negligence, in the case of persons described in paragraph (1)(c), jointly and severally 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 therefrom, and all such loss is recoverable with costs in proceedings brought or taken therefor in any court of competent jurisdiction.

Absolute liability

(4) The liability of any person described in paragraph (1)(a) or (b) is absolute and does not depend on proof of fault or negligence, 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

    (a) an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or

    (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.

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.

Limitation period

(6) No proceedings may be commenced under subsections (1) to (3) at any time later than two 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.

Discharge of pollutant

(7) Subsections (1) to (3) do not apply in respect of any deposit of a deleterious substance that, within the meaning of Part XV of the Canada Shipping Act, constitutes a discharge of a pollutant caused by or otherwise attributable to a ship.

Civil remedies

(8) No civil remedy for any act or omission is suspended or affected by reason only that the act or omission is authorized under this Part, is an offence under this Part or gives rise to civil liability under this Part.

Action by Attorney General of Canada

(9) Notwithstanding that a prosecution has been instituted in respect of an offence under section 61, 62 or 63, the Attorney General of Canada may commence and maintain proceedings to enjoin anything punishable as an offence under those sections.

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