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Bill C-61

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REVIEW BY MINISTER

Review under section 8

12. (1) After concluding a review requested under section 8, the Minister shall determine whether or not the person committed the violation, and the Minister shall cause a notice of any decision under this subsection to be served on the person who requested the review.

Right to review

(2) Where the Minister decides under subsection (1) that a person has committed a violation, the person may, in the prescribed time and manner, request a review of the Minister's decision by the Tribunal.

Review under paragraph 9(2)(b)

13. (1) After concluding a review requested under paragraph 9(2)(b), the Minister shall determine whether or not the person requesting the review committed a violation and, where the Minister decides that the person committed a violation but considers that the amount of the penalty for the violation was not established in accordance with the regulations, the Minister shall correct the amount of the penalty for the violation, and the Minister shall cause a notice of any decision under this subsection to be served on the person who requested the review.

Payment or right to review

(2) Where the Minister decides under subsection (1) that a person has committed a violation, the person may, in the prescribed time and manner,

    (a) pay the amount of the penalty set out in the notice referred to in subsection (1), in which case

      (i) the Minister shall accept the amount as and in complete satisfaction of the penalty, and

      (ii) the proceedings commenced in respect of the violation under section 7 are ended; or

    (b) request a review of the Minister's decision by the Tribunal.

REVIEW BY TRIBUNAL

Review by Tribunal

14. (1) After concluding a review requested under this Act, the Tribunal shall, by order, as the case may be,

    (a) confirm, vary or set aside any decision of the Minister under section 12 or 13, or

    (b) determine whether or not the person requesting the review committed a violation and, where the Tribunal decides that the person committed a violation but considers that the amount of the penalty for the violation, if any, was not established in accordance with the regulations, the Tribunal shall correct the amount of the penalty,

and the Tribunal shall cause a notice of any order made under this subsection to be served on the person who requested the review, and on the Minister.

Payment

(2) Where the Tribunal decides under subsection (1) that a person has committed a violation, the person is liable for the amount of the penalty as set out in the order of the Tribunal and, on the payment of that amount in the time and manner specified in the order,

    (a) the Minister shall accept the amount as and in complete satisfaction of the penalty; and

    (b) the proceedings commenced in respect of the violation under section 7 are ended.

ENFORCEMENT

Debts to Her Majesty

15. (1) The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered as such in the Federal Court:

    (a) the amount of a penalty, from the time the notice of violation setting out the penalty is served;

    (b) every amount undertaken to be paid pursuant to a compliance agreement entered into with the Minister under subsection 10(1), from the time the compliance agreement is entered into;

    (c) the amount set out in a notice of default referred to in subsection 10(4), from the time the notice is served;

    (d) the amount of a penalty as set out in a decision of the Minister under subsection 13(1), from the time the notice under that subsection is served;

    (e) the amount of a penalty as set out in an order of the Tribunal under subsection 14(1), from the expiration of the time specified in the order for the payment of that amount; and

    (f) the amount of any reasonable expenses incurred pursuant to section 22, from the date they are incurred.

Time limit

(2) No proceedings to recover a debt referred to in subsection (1) may be commenced later than five years after the debt became payable.

Debt final

(3) A debt referred to in subsection (1) is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 9 to 14 of this Act and subsection 12(2) of the Canada Agricultural Products Act.

Certificate of default

16. (1) Any debt referred to in subsection 15(1) 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) shall be registered in that Court and, when registered, has the same force and effect, and all proceedings may be taken on the certificate, as if it were a judgment obtained in that Court for a debt of the amount specified in the certificate and all reasonable costs and charges attendant in the registration of the certificate.

RULES OF LAW ABOUT VIOLATIONS

Violations not offences

17. For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.

Certain defences not available

18. (1) A person named in a notice of violation does not have a defence by reason that the person

    (a) exercised due diligence to prevent the violation; or

    (b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.

Common law principles

(2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under an agri-food Act applies in respect of a violation to the extent that it is not inconsistent with this Act.

Burden of proof

19. In every case where the facts of a violation are reviewed by the Minister or by the Tribunal, the Minister must establish, on a balance of probabilities, that the person named in the notice of violation committed the violation identified in the notice.

Vicarious liability - licence holders, etc.

20. (1) The holder of a licence, certificate, letter of accreditation, permit, notice or other document issued under an agri-food Act is liable for a violation that is committed in respect of any matter relating to any activity or requirement under that document, whether or not the person who actually committed the violation is identified or proceeded against in accordance with this Act.

Vicarious liability - acts of employees and agents

(2) A person is liable for a violation that is committed by any employee or agent of the person acting in the course of the employee's employment or 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.

Continuing violation

21. A violation that is continued on more than one day constitutes a separate violation in respect of each day during which it is continued.

Forfeiture

22. Where

    (a) a person is deemed by this Act to have committed a violation, or

    (b) the Minister, pursuant to a review under this Act, has decided that a person has committed a violation and no request to review the Minister's decision has been made to the Tribunal in the prescribed time and manner,

anything seized and detained under an agri-food Act in relation to the violation is, at the election of Her Majesty in right of Canada, immediately forfeited to Her Majesty in right of Canada and may be disposed of, at the expense of the person from whom it was seized, in accordance with the regulations made under the applicable agri-food Act unless the Minister directs otherwise.

GENERAL PROVISIONS

Notations removed

23. (1) Any notation of a violation shall, on application by the person who committed the violation, be removed from any records that may be kept by the Minister respecting that person after the expiration of five years from

    (a) where the notice of violation contained a warning, the date the notice was served, or

    (b) in any other case, the payment of any debt referred to in subsection 15(1),

unless the removal from the record would not in the opinion of the Minister be in the public interest or another notation of a violation has been recorded by the Minister in respect of that person after that date and has not been removed in accordance with this subsection.

Duty to notify

(2) The Minister shall cause a notice of removal to be served on the person in respect of whom a notation is removed pursuant to subsection (1).

Service of documents

24. Every document required or authorized to be served under this Act shall be served in accordance with the regulations, either personally or in such other manner as may be authorized in the regulations.

Evidence

25. In any proceeding for a violation or for a prosecution for an offence, a notice of violation purporting to be issued pursuant to this Act is admissible in evidence without proof of the signature or official character of the person appearing to have signed the notice of violation.

Time limit

26. (1) No proceedings in respect of a violation may be commenced later than

    (a) six months after the Minister became aware of the violation, in the case of a minor violation; or

    (b) two years after the Minister became aware of the violation, in the case of a serious violation or a very serious violation.

Certificate of Minister

(2) A document purporting to have been issued by the Minister and certifying 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.

RELATED AND CONSEQUENTIAL AMENDMENTS

R.S., c. 20 (4th Supp.)
[c. C-0.4]

Canada Agricultural Products Act

27. (1) The definitions ``Board'' and ``Tribunal'' in section 2 of the Canada Agricultural Products Act are replaced by the following:

``Board''
« Conseil »

``Board'' means the Board of Arbitration continued by subsection 4(1);

``Tribunal''
« Commission »

``Tribunal'' means the Review Tribunal continued by subsection 4.1(1);

(2) Section 2 of the Act is amended by adding the following in alphabetical order:

``penalty''
« sanction »

``penalty'' means an administrative monetary penalty imposed under the Agriculture and Agri-Food Administrative Monetary Penalties Act for a violation;

``violation''
« violation »

``violation'' means any contravention of this Act or the regulations that may be proceeded with in accordance with the Agriculture and Agri-Food Administrative Monetary Penalties Act.

28. Subsection 4(1) of the Act is replaced by the following:

Board of Arbitration continued

4. (1) The Board of Arbitration, consisting of such members as are appointed by the Minister, one of whom shall be appointed as Chairperson and one as Vice-Chairperson, is hereby continued.

29. Section 5 of the Act is replaced by the following:

Review Tribunal continued

4.1 (1) The Review Tribunal, consisting of such members as are appointed by the Governor in Council, one of whom shall be appointed as Chairperson, is hereby continued.

Qualifications

(2) A person is not eligible to be appointed a member of the Tribunal unless the person is knowledgeable about or has experience related to agriculture or agri-food and the Chairperson of the Tribunal and at least one other member of the Tribunal must, in addition, be a barrister or advocate of at least ten years standing at the bar of any province or a notary of at least ten years standing at the Chambre des notaires du Québec.

Membership

(3) The Chairperson of the Tribunal shall be appointed as a full-time member and the other members shall be appointed as either full-time members or part-time members of the Tribunal.

Tenure

(4) Each member of the Tribunal shall be appointed for a term of not more than five years and shall hold office during good behaviour, but may be removed by the Governor in Council for cause.

Re-appointme nt

(5) Each member of the Tribunal may be re-appointed as a member in the same or another capacity.

Not employed in public service

4.2 (1) A member of the Tribunal may not be a person employed in the public service of Canada.

Conflict of interest

(2) A member of the Tribunal shall not accept or hold any office or employment that is inconsistent with the member's duties or take part in any matter before the Tribunal in which the member has an interest.

Contractual assistance

4.3 The Board or the Tribunal may, for specific projects, enter into contracts for the services of persons having technical or specialized knowledge of any matter relating to the work of the Board or Tribunal to advise and assist it in the exercise of its powers or the performance of its duties and functions under this Act.

Consultations

4.4 The members of the Board or the members of the Tribunal may consult with other members of the Board or Tribunal, as the case may be, in respect of any matter before it.

Absence or incapacity of members - Board

5. (1) Where a member of the Board is absent or unable to act or the member's position becomes vacant, the Minister may appoint a person to act in the member's place and, in the case of the Chairperson of the Board, the Vice-Chairperson of the Board shall act as Chairperson pending the appointment of a replacement.

Absence or incapacity of Chairperson of Tribunal

(2) Where the Chairperson of the Tribunal is absent or unable to act or the Chairperson's position becomes vacant, the members of the Tribunal shall designate a member of the Tribunal with the legal qualifications described in subsection 4.1(2) to act as Chairperson pending the appointment of a replacement.

Duties of Chairpersons

(3) The Chairperson of the Board and the Chairperson of the Tribunal are the chief executive officers of the Board and the Tribunal, respectively, and shall apportion work among their members.

30. Subsections 6(2) and (3) of the Act are replaced by the following:

Meetings

(2) The Board may sit at such places in Canada as it considers appropriate and the Tribunal may sit at such places in Canada as may be specified by the Governor in Council.

Quorum

(3) Three members of the Board constitute a quorum.

Staff and facilities

(4) The Minister may provide the Board and the Tribunal with such officers and employees from within the public service of Canada and such facilities and professional advisers as are necessary for the proper conduct of the business of the Board and the Tribunal.

31. Section 7 of the Act is replaced by the following:

Travel and living expenses - Board

7. Each member of the Board is entitled to be paid

    (a) an amount fixed by the Treasury Board for each day or part of a day that the member is performing duties under this Act unless the member is employed in the public service of Canada; and

    (b) reasonable travel and living expenses incurred by the member in the course of the member's duties under this Act.

Remuneration - Tribunal

7.1 (1) Each full-time member of the Tribunal shall be paid such salary as is fixed by the Governor in Council and each part-time member of the Tribunal is entitled to be paid such fees or other remuneration for that member's services as may be fixed by the Governor in Council.

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