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Bill C-35

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Foreign Vessels in Contravention of International Conventions

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.

Administrative Penalties

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

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.

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