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Bill C-42

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Assistance to Enforcement Officers and Analysts

Right of passage

38. An enforcement officer, analyst or any other person may, while carrying out their functions under this Act, enter on and pass through or over private property without being liable for exercising that power or without the owner of the property having the right to object to that use of the property.

Assistance

39. The owner or the person in charge of a place entered by an enforcement officer or analyst under section 32, and every person found in the place, shall

    (a) give the enforcement officer or analyst all reasonable assistance to enable the officer or analyst to carry out their functions under this Act; and

    (b) provide the enforcement officer or analyst with any information with respect to the administration of this Act that the enforcement officer or analyst may reasonably require.

Forfeiture in Canada

Forfeiture on consent

40. (1) If an enforcement officer has seized a thing under section 32 or subsection 35(1) and the owner or person who was in lawful possession of it at the time of the seizure consents in writing at the request of the enforcement officer to its forfeiture, it is forfeited to Her Majesty in right of Canada.

Disposal or destruction

(2) The Minister may dispose of or destroy a thing forfeited under subsection (1) and, if the Minister so directs, the costs of the disposal or destruction shall be paid by the owner or the person who was in lawful possession of the thing at the time it was seized.

Forfeiture by order of court

41. (1) Subject to sections 42 and 43, if a person is convicted of an offence under this Act and anything seized under section 32 or subsection 35(1) is then being detained,

    (a) the thing is, on the conviction and in addition to any punishment imposed for the offence, forfeited to Her Majesty in right of Canada if the court so directs, in which case

      (i) the Minister may dispose of or destroy the thing, and

      (ii) the costs of the forfeiture and disposal or destruction shall be paid by the offender; or

    (b) the thing shall, on the expiry of the period for taking an appeal from the conviction or on the final conclusion of the proceedings, be restored to the person from whom it was seized or to any other person entitled to its possession on any conditions that may be imposed by order of the court and that, in the opinion of the court, are necessary to avoid the commission of a further offence under this Act.

Things deemed not to have been seized

(2) For the purpose of subsection (1), anything released from detention under paragraph 35(4)(a) or (b) is deemed not to have been seized under section 32 or subsection 35(1).

Court may order forfeiture

42. If the authorized representative of a Canadian vessel or the registered owner of a Canadian aircraft has been convicted of an offence under this Act, the convicting court may, if the vessel or aircraft was seized under section 32 or subsection 35(1), in addition to any other penalty imposed, order that the vessel or aircraft, or any security given under subsection 34(1) be forfeited, and on the making of the order, the vessel or aircraft or security is forfeited to Her Majesty in right of Canada.

Disposal of forfeited vessel, aircraft, etc.

43. (1) If proceedings referred to in subsection 34(2) are instituted within the period referred to in that subsection and, at the final conclusion of those proceedings, any vessel or aircraft, or any security given under subsection 34(1), is ordered to be forfeited, it may be disposed of as the Governor in Council directs.

Return of seized vessel, etc., where no forfeiture ordered

(2) If a thing has been seized under section 32 and proceedings referred to in subsection (1) are instituted, but the thing is not, at the final conclusion of the proceedings, ordered to be forfeited, it must be returned to the person from whom it was seized, the proceeds of any sale of the cargo under subsection 33(3) must be paid to that person and any security given to the Minister under subsection 34(1) must be returned to that person.

Exception

(3) If, at the conclusion of proceedings referred to in subsection (1), the person from whom the thing was seized is convicted of an offence arising out of a contravention of this Act or the regulations, the thing and any cargo or the proceeds or security may be retained until the fine is paid, or the thing and any cargo may be sold under execution in satisfaction of the fine, or the proceeds realized from the sale of the cargo or the security or any part of the cargo or security may be applied in payment of the fine.

Application by person claiming interest

44. (1) If a thing has been ordered to be forfeited under this Act, any person, other than a person who was a party to the proceedings that resulted in the order, who claims a right or an interest in the thing as owner, holder of a security established on property or other right in rem or holder of any other claim under Canadian law may, within 30 days after the day on which the thing is ordered to be forfeited, apply by notice in writing to the Federal Court for an order under subsection (5).

Date of hearing

(2) The Federal Court must fix a day for the hearing of the application.

Notice

(3) An applicant for an order under subsection (5) must, at least 30 days before the day fixed under subsection (2), serve a notice of the application and of the hearing on the Minister and on all other persons claiming a right or an interest in the thing that is the subject-matter of the application as owner, holder of a security established on property or other right in rem or holder of any other claim under Canadian law of whom the applicant has knowledge.

Notice of intervention

(4) Each person, other than the Minister, who is served with a notice under subsection (3) and who intends to appear at the hearing of the application to which the notice relates must, at least 10 days before the day fixed for the hearing, file a notice of intervention in the Registry of the Federal Court and serve a copy of the notice on the Minister and on the applicant.

Order declaring nature and extent of interests

(5) If, on the hearing of an application under this section, the Federal Court is satisfied that the applicant, or the intervenors, if any, or any of them,

    (a) is innocent of any complicity in any conduct that caused the thing to be subject to forfeiture and of any collusion in relation to any such conduct, and

    (b) exercised all reasonable care in respect of the persons permitted to obtain possession and use of the thing so as to be satisfied that it was not likely to be used contrary to the provisions of this Act or, in the case of a holder of a security established on property, other than the holder of a maritime lien or statutory right in rem, that the applicant or intervenor exercised such care with respect to the person who gave the property as security,

those of the applicant and the intervenors in respect of whom the Court is so satisfied are entitled to an order declaring that their rights or interests are not affected by the forfeiture and declaring the nature and extent of each of their rights or interests and the ranking among them.

Additional order

(6) If an order is made under subsection (5), the Court may, in addition, order that the thing to which the rights or interests relate be delivered to one or more of the persons found to have a right or an interest in it or that an amount equal to the value of each of the interests so declared be paid to the persons found to have those interests.

INSPECTIONS IN THE ANTARCTIC

Designation of inspectors

45. (1) The Minister may designate as an inspector, for the purpose of this Act or any provision of this Act, any person or any member of a class of persons who, in the Minister's opinion, is qualified to be so designated.

Limits

(2) The Minister may, including on the request of the Minister of Foreign Affairs, limit the powers that may be exercised by an inspector under this Act.

Production of certificate

(3) The Minister must provide every inspector with a certificate of designation that includes any limits specified under subsection (2). On entering any place, the inspector must, if so requested, produce the certificate to the person in charge of the place.

Powers of inspectors

46. (1) Subject to subsections (2) and (6), for the purposes of this Act, an inspector may, at any reasonable time, enter any place in the Antarctic in which the inspector believes, on reasonable grounds, there is anything to which this Act applies or any document relating to its administration.

Dwelling-hou ses

(2) An inspector may not enter a dwelling-house without the consent of the occupant.

Stopping and detaining conveyances

(3) For the purposes of this Act, an inspector may, at any reasonable time, direct that any of the following be moved to a place where an inspection can be carried out and may, for a reasonable time, detain any of the following:

    (a) a Canadian vessel or Canadian aircraft in the Antarctic; or

    (b) any other conveyance in the Antarctic that is owned by a Canadian except a vessel or aircraft that is not a Canadian vessel or Canadian aircraft.

Powers in relation to vessels, etc.

(4) Subject to subsection (2), for the purposes of this Act, an inspector may, at any reasonable time,

    (a) board a Canadian vessel or Canadian aircraft in the Antarctic; or

    (b) travel on the vessel or aircraft.

Powers of inspectors

(5) In carrying out an inspection of a place under this section, an inspector may exercise any of the powers referred to in subsections 30(9), (11) and (12).

Foreign ownership

(6) An inspector may not exercise any powers under this section in respect of any station, installation, equipment, platform anchored at sea, shipping container or conveyance (other than a Canadian vessel or Canadian aircraft) that is owned by a person who is not a Canadian unless the inspector first obtains the consent of the person in charge of the station, installation, equipment, platform, container or conveyance.

Analysts

(7) An analyst may, for the purposes of this Act, accompany an inspector who is carrying out an inspection of a place under this section, and the analyst may, when accompanying the inspector, enter the place and exercise any of the powers referred to in subsection (5).

Assistance

(8) The owner of a place or a Canadian or permit holder in charge of a place being inspected under this section, and every Canadian or permit holder found in the place, shall

    (a) give the inspector or analyst all reasonable assistance to enable the inspector or analyst to carry out their functions under this Act; and

    (b) provide the inspector or analyst with any information with respect to the administration of this Act that he or she may reasonably require.

Production of documents and samples

47. (1) The Minister may, for the purposes of this Act, by registered letter or by a demand served personally, require any Canadian, or any permit holder, who is in Canada or the Antarctic, within any reasonable time and in any reasonable manner that may be stipulated in the letter or demand,

    (a) to produce at a place specified by the Minister any sample taken in the Antarctic or any document; or

    (b) to conduct any tests in the Antarctic or take any measurements or samples there.

Compliance

(2) A person who is required to do anything under subsection (1) shall, despite any other law to the contrary, comply with the requirement.

OBSTRUCTION AND FALSE INFORMATION

Obstruction

48. No person in Canada, and no Canadian or permit holder in the Antarctic, shall obstruct an enforcement officer, inspector or analyst or hinder any of them in carrying out their functions under this Act.

False or misleading information, etc.

49. No person in Canada, and no Canadian or permit holder in the Antarctic, shall, with respect to any matter related to this Act, knowingly or negligently

    (a) provide any person with false or misleading information, results or samples; or

    (b) file a document that contains false or misleading information.

OFFENCES AND PUNISHMENT

Contravention of Act and regulations

50. (1) Every person or Canadian vessel commits an offence if the person or vessel contravenes

    (a) a provision of this Act or the regulations;

    (b) an obligation or a prohibition arising from this Act or the regulations, including one arising from a condition of a permit;

    (c) an order or a direction made under this Act; or

    (d) an order, direction or decision of a court made under this Act.

Penalties

(2) Every person or Canadian vessel that commits an offence under subsection (1) is liable

    (a) on conviction on indictment

      (i) for a first offence, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both, and

      (ii) for a second offence, to a fine of not more than $2,000,000 or to imprisonment for a term of not more than five years, or to both; or

    (b) on summary conviction

      (i) for a first offence, to a fine of not more than $300,000 or to imprisonment for a term of not more than six months, or to both, and

      (ii) for a second offence, to a fine of not more than $600,000 or to imprisonment for a term of not more than one year, or to both.

Liability of director or officer of corporation

51. (1) If a corporation commits an offence under this Act, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence, and is 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.

Duties of directors

(2) Every director and officer of a corporation shall take all reasonable care to ensure that the corporation complies with

    (a) this Act and the regulations; and

    (b) any orders and directions of, or prohibitions and requirements imposed by, any court, the Minister, enforcement officers, inspectors and analysts.

Liability of master

52. (1) If a Canadian vessel commits an offence under this Act, the master of the vessel is a party to and guilty of an offence, and is liable on conviction to the penalty provided for by this Act in respect of the offence committed by the vessel, whether or not the vessel has been prosecuted, if the master directed, authorized, assented to, acquiesced in or participated in the commission of the offence.

Duties of masters

(2) Every master of a Canadian vessel shall take all reasonable care to ensure that the vessel complies with

    (a) this Act and the regulations; and

    (b) orders and directions of, or prohibitions and requirements imposed by, any court, the Minister, enforcement officers, inspectors and analysts.

Continuing offence

53. If an offence under this Act is committed or continued on more than one day, the person or Canadian vessel that committed the offence is liable to be convicted for a separate offence for each day on which it is committed or continued.

Identifying authorized representative, master, etc.

54. The authorized representative or master of a Canadian vessel or the registered owner or pilot in command of a Canadian aircraft may be charged with an offence under this Act as authorized representative, master, registered owner or pilot in command of the vessel or aircraft if it is adequately identified, and no such charge is invalid by reason only that it does not name the authorized representative, master, registered owner or pilot in command.

Due diligence

55. (1) No person may be found guilty of an offence under this Act if it is established that the person exercised all due diligence to comply with this Act or to prevent the commission of the offence.

Exception

(2) Subsection (1) does not apply to an offence relating to

    (a) a contravention of paragraph 12(1)(f) or (g);

    (b) a contravention of section 48; or

    (c) a contravention of section 49 committed knowingly.

No proceedings without consent

56. No proceedings in respect of an offence under this Act may be instituted except by or with the consent of the Attorney General of Canada.

Limitation period

57. (1) Proceedings by way of summary conviction in respect of an offence under this Act may be instituted at any time within, but not later than, two years after the day on which the Minister became aware of the subject-matter of the proceedings.

Minister's certificate

(2) A document purporting to have been issued by the Minister, certifying the day on which the Minister became aware of the subject-matter of any proceedings, must be received in evidence and, in the absence of any evidence to the contrary, must be considered as proof of that fact without proof of the signature or of the official character of the person appearing to have signed the document and without further proof.

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