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Bill C-71

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    (c) that the occupant does not consent to the entry, or that entry has been refused or there are reasonable grounds for believing that it will be refused.

Use of force

(3) An inspector executing the warrant shall not use force unless the inspector is accompanied by a peace officer and the use of force is specifically authorized in the warrant.

Certificate of analysis

37. An analyst who has analysed or examined a thing under this Act, or a sample of it, may issue a certificate or report setting out the results of the analysis or examination.

Assistance to inspectors

38. (1) The owner of a place inspected by an inspector under this Act, the person in charge of the place and every person found in the place shall

    (a) provide all reasonable assistance to enable the inspector to carry out the inspector's duties under this Act; and

    (b) furnish the inspector with the information that the inspector reasonably requires for that purpose.

Obstruction

(2) No person shall obstruct or hinder, or knowingly make a false or misleading statement to, an inspector who is carrying out duties under this Act.

Seizure and Restoration

Seizure

39. (1) During an inspection under this Act, an inspector may seize any tobacco product or other thing by means of which or in relation to which the inspector believes on reasonable grounds that this Act has been contravened.

Storage and removal

(2) The inspector may direct that any tobacco product or thing seized be kept or stored in the place where it was seized or that it be removed to another place.

Interference

(3) Unless authorized by an inspector, no person shall remove, alter or interfere in any way with any tobacco product or other thing seized.

Application for restoration

40. (1) Any person from whom a tobacco product or thing was seized may, within sixty days after the date of seizure, apply to a provincial court judge within whose jurisdiction the seizure was made for an order of restoration, if the person sends a notice containing the prescribed information to the Minister within the prescribed time and in the prescribed manner.

Order of restoration

(2) The provincial court judge may order that the tobacco product or thing be restored immediately to the applicant if, on hearing the application, the judge is satisfied

    (a) that the applicant is entitled to possession of the tobacco product or thing seized; and

    (b) that the tobacco product or thing seized is not and will not be required as evidence in any proceedings in respect of an offence under this Act.

Order of later restoration

(3) Where, on hearing an application made under subsection (1), the provincial court judge is satisfied that the applicant is entitled to possession of the tobacco product or thing seized but is not satisfied with respect to the matters mentioned in paragraph (2)(b), the judge may order that the product or thing seized be restored to the applicant

    (a) on the expiration of one hundred and eighty days after the date of the seizure if no proceedings in respect of an offence under this Act have been commenced before that time; or

    (b) on the final conclusion of any such proceedings, in any other case.

No restoration where forfeiture by consent

(4) The provincial court judge may not make an order under this section for restoration of a tobacco product or thing if it has been forfeited by consent under subsection 41(3).

Forfeiture

41. (1) Where no application has been made under subsection 40 (1) for the restoration of a tobacco product or thing seized under this Act within sixty days after the date of the seizure, or an application has been made but on the hearing of the application no order of restoration is made, the product or thing is forfeited to Her Majesty and may be disposed of as the Minister directs.

Forfeiture on conviction

(2) Where a person has been convicted of an offence under this Act, any tobacco product or thing seized under this Act by means of or in respect of which the offence was committed is forfeited to Her Majesty and may be disposed of as the Minister directs.

Forfeiture with consent

(3) Where an inspector has seized a tobacco product or thing and the owner or the person in whose possession it was at the time of seizure consents in writing to its forfeiture, the product or thing is forfeited to Her Majesty and may be destroyed or disposed of as the Minister directs.

Regulations

Regulations

42. The Governor in Council may make regulations

    (a) respecting the powers and duties of inspectors and analysts;

    (b) respecting the taking of samples;

    (c) prescribing anything that by this Part is to be prescribed; and

    (d) generally for carrying out the purposes of this Part.

PART V.1

LAYING OF PROPOSED REGULATIONS

Laying of proposed regulations

42.1 (1) The Governor in Council may not make a regulation under section 7, 14, 17, 33 or 42 unless the Minister has first laid the proposed regulation before the House of Commons.

Report by committee

(2) A proposed regulation that is laid before the House of Commons is deemed to be automatically referred to the appropriate committee of the House, as determined by the rules of the House, and the committee may conduct inquiries or public hearings with respect to the proposed regulation and report its findings to the House.

Making of regulations

(3) The Governor in Council may make a regulation under section 7, 14, 17, 33 or 42 only if

    (a) the House of Commons has not concurred in any report from a committee respecting the proposed regulation within the thirty sitting days following the day on which the proposed regulation was laid before the House, in which case the regulation may only be made in the form laid; or

    (b) the House of Commons has concurred in a report from a committee approving the proposed regulation or an amended version of it, in which case the Governor in Council may only make the regulation in the form concurred in.

Definition of ``sitting day''

(4) For the purpose of this section, ``sitting day'' means a day on which the House of Commons sits.

PART VI

OFFENCES AND PUNISHMENT

Packaging and promotion offences

43. Every person who contravenes section 5 or 19 is guilty of an offence and liable

    (a) on summary conviction, to a fine not exceeding $100,000 or to imprisonment for a term not exceeding one year, or to both; or

    (b) on conviction on indictment, to a fine not exceeding $300,000 or to imprisonment for a term not exceeding two years, or to both.

Summary offence

44. Every person who contravenes section 6, subsection 10(1) or (2), 26(1) or (2) or 31(1) or (3), section 32 or subsection 38(1) or (2) is guilty of an offence and liable on summary conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding six months, or to both.

Sales to youth, promotions

45. Every person who contravenes section 8, 9, 11 or 12, or any retailer who contravenes section 29, is guilty of an offence and liable on summary conviction

    (a) for a first offence, to a fine not exceeding $3,000; and

    (b) for a subsequent offence, to a fine not exceeding $50,000.

Offence by retailer

46. (1) Every retailer who contravenes subsection 15(1) or (2) is guilty of an offence and liable on summary conviction to a fine not exceeding $50,000.

Offence by manufacturer

(2) Every manufacturer who contravenes subsection 15(1) or (2) or section 29 is guilty of an offence and liable on summary conviction to a fine not exceeding $300,000 or to imprisonment for a term not exceeding two years, or to both.

General offence

47. Every person who contravenes subsection 13(1) or (2), section 20, subsection 21(1) or 22(1) or section 23 or 27 is guilty of an offence and liable on summary conviction to a fine not exceeding $300,000 or to imprisonment for a term not exceeding two years, or to both.

Where no other penalty

48. Every person who contravenes a provision of this Act or the regulations for which no other penalty is provided in this Act is guilty of an offence and liable on summary conviction to a fine not exceeding $25,000.

Continuing offence

49. A person who commits or continues an offence under this Act on more than one day is liable to be convicted for a separate offence for each day on which the offence is committed or continued.

Offence by director or officer of corporation

50. Where a corporation commits an offence under this Act, any director or officer of the corporation who authorized or acquiesced in the offence is guilty of an offence and 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.

Limitation period

51. No prosecution for a summary conviction offence under this Act may be instituted after two years after the time when the subject-matter of the proceedings arose.

Venue

52. A prosecution for an offence under this Act may be instituted, heard, tried and determined by a court in any jurisdiction in which the accused carries on business, regardless of where the subject-matter of the prosecution arose.

Exception need not be pleaded

53. (1) No exception, exemption, excuse or qualification prescribed by law is required to be set out or negatived, as the case may be, in an information or indictment for an offence under this Act or under section 463, 464 or 465 of the Criminal Code in respect of an offence under this Act.

Proof of exemption

(2) In a prosecution for an offence referred to in subsection (1), the burden of proving that an exception, exemption, excuse or qualification prescribed by law operates in favour of the accused is on the accused and the prosecutor is not required, except by way of rebuttal, to prove that it does not operate in favour of the accused, whether or not it is set out in the information or indictment.

Offence by employee or agent

54. In a prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused and that the accused exercised all due diligence to prevent its commission.

Certified copies and extracts

55. In a prosecution for an offence under this Act, a copy of any written or electronic information obtained during an inspection under this Act and certified by the inspector to be a true copy is admissible in evidence and is, in the absence of evidence to the contrary, proof of its contents.

Certificate or report of analyst as proof

56. (1) Subject to subsections (2) and (3), a certificate or report purporting to be signed by an analyst stating that the analyst has analysed anything to which this Act applies and stating the results of the analysis, is admissible in evidence in any prosecution for an offence under this Act without proof of the signature or official character of the person appearing to have signed the certificate or report.

Notice

(2) The certificate or report may not be received in evidence unless the party intending to produce it has, before the trial, given the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the certificate or report.

Attendance of analyst

(3) The party against whom the certificate or report is produced may, with leave of the court, require the attendance of the analyst for the purpose of cross-examination.

Evidentiary presumptions

57. In a prosecution for a contravention of this Act,

    (a) information on a package indicating that it contains a tobacco product is, in the absence of evidence to the contrary, proof that the package contains a tobacco product; and

    (b) a name or address on a package purporting to be the name or address of the person by whom the tobacco product was manufactured is, in the absence of evidence to the contrary, proof that it was manufactured by that person.

Additional fine

58. If an offender has been convicted of an offence under this Act and the court is satisfied that as a result of the commission of the offence the offender acquired any monetary benefits or that monetary benefits accrued to the offender, the court may order the offender to pay, despite the maximum amount of any fine that may otherwise be imposed under this Act, an additional fine in an amount equal to the court's estimation of the amount of those monetary benefits.

Orders of court

59. When the court is sentencing an offender who has been convicted of an offence under this Act, in addition to any other punishment that may be imposed, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order having any or all of the following effects:

    (a) prohibiting the offender from doing any act or engaging in any activity that is likely to result in the continuation or repetition of the offence;

    (b) prohibiting the offender from selling tobacco products for a period of not more than one year, in the case of a subsequent offence under section 8, 9, 11, 12 or 29;

    (c) directing the offender to publish, in the manner directed by the court, the facts relating to the commission of the offence;

    (d) directing the offender to post any bond or pay any amount of money into court that will ensure compliance with an order made pursuant to this section;

    (e) directing the offender to compensate the Minister, in whole or in part, for the cost of any remedial or preventive action taken by or caused to be taken on behalf of the Minister as a result of the act or omission that constituted the offence; and

    (f) directing the offender to pay an amount for the purposes of conducting research into any matters relating to tobacco products that the court considers appropriate.

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