Bill C-34

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1994, c. 40	Marine Transportation Security Act
	*55. (1) The definition ``screening officer'' in subsection 2(1) of the Marine Transportation Security Act* is replaced by the following:**
``screening officer'' « agent de contrôle »	``screening officer'' means a person designated by the Minister under section 19.1 as a screening officer for the purposes of this Act;
	(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
``Tribunal'' « Tribunal »	``Tribunal'' means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act;

	56. Sections 5 and 6 of the Act are replaced by the following:
Regulations respecting security	5. (1) The Governor in Council may make regulations respecting the security of marine transportation, including regulations
	(a) for preventing unlawful interference with marine transportation and ensuring that appropriate action is taken where that interference occurs or could occur;
	(b) requiring or authorizing screening for the purpose of protecting persons, goods, vessels and marine facilities;
	(c) respecting the establishment of restricted areas;
	(d) respecting the keeping and preservation of records and documents relating to the security of marine operations, including copies of the regulations, security measures and security rules;
	(e) for requiring the records and documents to be filed with the Minister or provided on request; and
	(f) respecting the protection, preservation and return of any evidence that has been seized under this Act without a warrant or any vessel that has been detained under this Act.
Offences relating to the regulations	(2) Every person who contravenes a regulation made under subsection (1) is guilty of an offence punishable on summary conviction and liable
	(a) in the case of an individual, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both; or
	(b) in the case of a corporation, to a fine not exceeding $100,000.
Notices and service of documents	6. The Governor in Council may make regulations respecting
	(a) the form and manner of giving notice under this Act; and
	(b) the service of documents required or authorized to be served under this Act, including the manner of serving them, the proof of their service and the circumstances under which they are deemed to have been served.
	57. Section 19 of the Act is replaced by the following:
Definition of ``designation''	19. For the purposes of sections 19.1 to 19.8, ``designation'' includes any privilege accorded by a designation.
Designation of screening officers	19.1 The Minister may designate persons or classes of persons to act as screening officers for the purposes of this Act or any of its provisions.
Refusal to designate, etc.	19.2 (1) The Minister may refuse to designate a person as a screening officer under section 19.1, or may suspend, cancel or refuse to renew the designation of a person as a screening officer, if the Minister is of the opinion that the person is incompetent, does not meet the qualifications or fulfil the conditions required for the designation or ceases to meet the qualifications or fulfil the conditions of the designation.
Suspension or cancellation of designation for contraven- tions	(2) The Minister may suspend or cancel the designation of a person as a screening officer if the Minister is of the opinion that the person has contravened this Act or any regulation, security measure or security rule, or any condition referred to in subsection 10(6).
Suspension for immediate threat	(3) The Minister may suspend the designation of a person as a screening officer if the Minister is of the opinion that the exercise by the person of the functions of a screening officer constitutes, or is likely to constitute, an immediate threat to marine transportation security.
Notice	19.3 (1) If the Minister decides to refuse to designate a person as a screening officer or decides to suspend, cancel or refuse to renew a person's designation as a screening officer, the Minister shall notify the person of that decision.
Contents of notice	(2) A notice under subsection (1) shall include
	(a) the grounds for the Minister's decision; and
	(b) the address at which, and the date, being thirty days after the notice is given, on or before which, the person may file a request for a review of the decision.
Effective date of suspension or cancellation	(3) In the case of a suspension or cancellation, the effective date of the decision shall not be earlier than
	(a) in the case of a decision made under subsection 19.2(1) or (3), the day that the notice was received by the person; and
	(b) in the case of a decision made under subsection 19.2(2), the thirtieth day after the notice is given.
Request for review	19.4 (1) A person affected by a decision of the Minister under section 19.2 may, on or before the date specified in the notice under subsection 19.3(1) or within any further time that the Tribunal on application allows, file a written request for a review of the decision.
Effect of request	(2) A request under subsection (1) for a review of a decision of the Minister does not operate as a stay of the decision.
Exception	(3) On application in writing by the person affected by a decision made under subsection 19.2(2), after giving any notice to the Minister that is, in the member's opinion, necessary and after considering any representations made by the parties, a member of the Tribunal assigned for the purpose may grant a stay of the decision until the review is completed, unless he or she is of the opinion that granting a stay would constitute a threat to marine transportation security.
Time and place for review	19.5 (1) On receipt of a request filed under subsection 19.4(1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.
Review procedure	(2) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Person not compelled to testify	(3) In a review of a decision made under subsection 19.2(2), the person who filed the request for the review is not required, and shall not be compelled, to give any evidence or testimony in the matter.
Determina- tion	(4) The member may
	(a) in the case of a decision made under subsection 19.2(1) or (3), confirm the decision or refer the matter back to the Minister for reconsideration; or
	(b) in the case of a decision made under subsection 19.2(2), confirm the decision or substitute his or her own determination.
Right of appeal	19.6 (1) Within thirty days after the determination,
	(a) a person affected by the determination may appeal a determination made under paragraph 19.5(4)(a) to the Tribunal; or
	(b) a person affected by the determination or the Minister may appeal a determination made under paragraph 19.5(4)(b) to the Tribunal.
Loss of right of appeal	(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.
Disposition of appeal	(3) The appeal panel of the Tribunal assigned to hear the appeal may
	(a) in the case of a determination made under paragraph 19.5(4)(a), dismiss the appeal or refer the matter back to the Minister for reconsideration; or
	(b) in the case of a determination made under paragraph 19.5(4)(b), dismiss the appeal, or allow the appeal and substitute its own decision.
Decision to remain in effect pending reconsideratio n	19.7 If a matter is referred back to the Minister for reconsideration under paragraph 19.5(4)(a) or 19.6(3)(a), the decision of the Minister under subsection 19.2(1) or (3) to suspend or cancel a designation remains in effect until the reconsideration is concluded. However, the member who made the determination or the appeal panel, after considering any representations made by the parties, may grant a stay of a decision under subsection 19.2(1) to suspend or cancel a designation until the reconsideration is concluded, if the member or panel is satisfied that granting a stay would not constitute a threat to marine transportation security.
Reconsidera- tion	19.8 (1) In the case of a decision made under subsection 19.2(3), if the appeal panel has, on an appeal under section 19.6, dismissed the appeal or if the Minister has, after reconsidering the matter pursuant to paragraph 19.5(4)(a) or 19.6(3)(a), confirmed the suspension, the person affected by the decision may, in writing, request the Minister to reconsider whether the exercise by the person of the functions of a screening officer continues to constitute, or is likely to continue to constitute, an immediate threat to marine transportation security.
Procedure applicable	(2) On the receipt of a request by a person under subsection (1), the Minister shall without delay conduct the reconsideration and inform the person of his or her decision regarding the request. Sections 19.3 to 19.7 apply in respect of that decision with any modifications that are necessary.
	58. Subsection 28(2) of the French version of the Act is replaced by the following:
Exploitant du bâtiment	(2) L'exploitant d'un bâtiment peut être déclaré coupable d'une infraction à la présente loi, en rapport avec ce bâtiment, commise par une autre personne, que celle-ci ait été ou non identifiée, poursuivie ou déclarée coupable, à moins que, lors de l'infraction, le bâtiment n'ait été en la possession d'une autre personne sans son consentement.
	59. Section 32 of the Act and the headings before it are replaced by the following:
	ADMINISTRATIVE PENALTIES
	Interpretation
Definition of ``violation''	32. In sections 33 to 51, ``violation'' means a contravention of a provision that is designated as a violation by the regulations.
	Assurances of Compliance and Notices of Violation
If reasonable grounds to believe a violation	33. (1) If the Minister has reasonable grounds to believe that a person has committed a violation, the Minister may
	(a) enter into an assurance of compliance with the person that
	(i) identifies the violation and provides that the person will comply with the provision to which the violation relates within the period, and be subject to the terms and conditions, 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, fixed by or within the range fixed by the regulations, that the person would have been liable to pay for the violation if the assurance had not been entered into; or
	(b) issue, and cause to be served on the person, a notice of violation that names the person, identifies the violation and sets out
	(i) the penalty, fixed by or within the range fixed by the regulations, that the person is liable to pay for the violation,
	(ii) the period, being thirty days after notice is served, within which the penalty must be paid or a review must be requested, and
	(iii) particulars of the manner in which, and the address at 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 is unable to comply with the assurance of compliance for reasons beyond the person'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	34. (1) A person who enters into an assurance of compliance under paragraph 33(1)(a) 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 enters into an assurance of compliance may, within forty-eight hours after the assurance is signed, unless a notice of default is served within that period under subsection 36(1), file a request with the Tribunal for 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 39(1) of the facts of the violation and of the amount of the penalty is deemed to have been requested.
When assurance of compliance complied with	35. If the Minister is satisfied that an assurance of compliance under paragraph 33(1)(a) has been complied with, the Minister shall cause a notice to that effect to be served on the person and, on the service of the notice,
	(a) no further proceedings may be taken against the person with respect to the violation in respect of which the assurance was entered into; and
	(b) any security deposited under subparagraph 33(1)(a)(ii) must be returned to the person.
When assurance of compliance not complied with	36. (1) If the Minister is of the opinion that a person who 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 to the effect that, unless a member determines under section 37, or an appeal panel decides under section 40, that the assurance has been complied with,
	(a) the person is liable to pay double the amount of the penalty set out in the assurance; or
	(b) the security deposited under subparagraph 33(1)(a)(ii) is forfeited to Her Majesty in right of Canada.
Contents of notice	(2) A notice under subsection (1) shall include the address at which, and the date, being thirty days after the notice is served, on or before which, a request for a review may be filed.
No set-off	(3) 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.
Request for review	37. (1) A person who is served with a notice under subsection 36(1) may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review.
Time and place for review	(2) On receipt of a request filed under subsection (1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.
Review procedure	(3) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Burden of proof	(4) The burden is on the Minister to establish that the person did not comply with the assurance of compliance referred to in the notice. The person is not required, and shall not be compelled, to give any evidence or testimony in the matter.
Certain defences not available	(5) A person does not have a defence by reason that the person exercised all due diligence to comply with the assurance of compliance.
Determina- tion	(6) The member may confirm the Minister's decision or determine that the person has complied with the assurance of compliance.

Bill C-34

Marine Transportation Security Act

ADMINISTRATIVE PENALTIES

Interpretation

Assurances of Compliance and Notices of Violation